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Discussion on applicability of Probation Act vis a vis Section-360 CrPC

and procedure prescribed therefor or related thereto
Despite availability of all the statutory provisions and several judgments of Hon'ble
superior courts, probation orders are in use to very limited extent. On the other
hand, different state governments normally is maintains a cadre of several probation
officers in terms of the Rules. Clearly they are not being used. In such situation, not
only the poor people are being denied the social benefits thereby curtailing the
chances of reformation (the prime goal of present criminal jurisprudence in India)
but also Govt. is wasting finance on maintaining the probation officers cadre in
whatever form they might exist.
1.1. Section-361 CrPC is mandatory and provides that unless special reasons are
recorded, the Court is bound to deal with the offenders under the beneficial
provisions including the Probation of Offenders Act, 1958. Now, one can hardly say
that Delhi has set any example in this regard. Delhi is also rarely found to be
following this specific mandate of the Parliament. A bare look at the judgments of the
trial courts of Delhi goes to show the obvious. (Trial Courts Judgments are available
on the official website of Delhi District Courts i.e. delhicourts.nic.in).
1.2. There cannot be any doubt that offences excluding life imprisonment and death
can be dealt with under the Probation of Offenders Act, 1958 unless specific reasons
are given under Section-361 CrPC. However, the same will come with some further
exceptions as carved out under section-18 thereof and by certain judgments of
Hon'ble Supreme Court.

Applicability of Probation Act viz a viz Section-360 CrPC:

2. With the above thinking in mind, we may consider the issue of applicability of
Probation of Offenders Act, 1958 in Delhi. For this purpose, we will need Section-360
CrPC and Section-19 Probation of Offenders Act, 1958. Both the statutes deal with
almost similar benefits but the later deals it in a great detail and for greater benefits.
Can both the provisions co-exist in the same area is a question of significance.
Section 19 of Probation of Offenders Act reads as under:

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Section 562 of the Code not to apply in certain areas.- Subject to the provisions of
section 18, section 562 of the Code shall cease to apply to the States or parts thereof
in which this Act is brought into force.
2.1. The Parliament has enacted the Probation Act and Section 1(3) thereof stipulated
that it shall come into force in a State on such date as the State Government may by
notification in the official gazette appoint. By a notification in the Gazette of India
dated 23.12.1960 this Act was made to apply and enforceable in the whole State of
Delhi w.e.f. 29.12.1960.
2.2. Section 19 of this Act lays down that, subject to the provisions of Section 18,
Section 562 of the Criminal Procedure Code, 1898 (hereinafter referred to as `Old
Code') shall cease to apply to the States or parts in which the Probation Act is
brought into force. Old Code came to be repealed and replaced by the Code and
Section 360 of the Code is the corresponding provision to Section 562 in the Old
Code.
2.3. In 1974, the Code of Criminal Procedure was recast and was freshly enacted as
the Code of Criminal Procedure, 1973. It contains Section 360 that was framed by
consolidating the provisions of Section 562(1), 380, 562(1)A, 562(2), 562(3), 562(4)
563(1), 563(2), 564(1) & 564(2) of the old Code. Sub-section 10 of Section 360 of the
Code made it clear that the provisions of that Section would have no effect on the
provisions of the Act.
2.4. But Section 360 in its new form gave rise to a little doubt. Section 360 of the new
Code was not simply a reproduction of Section 562 of the earlier Code. It
incorporated Section 380 as well as Sections 562(1)A. 563 and 564 (with some minor
changes) of the earlier Code.
2.5. A question, therefore, arose whether Section 19 of the Act would apply equally to
Section 360 of the new Code. The controversy was set at rest at an early stage and
there appears to be a judicial consensus on the issue. Practically, all the High Courts
took the view that Section 360 of the new Code shall have no application in
States/areas of a State where the Act had come into force. Some of the decisions of
the different High Courts, on the point, are as follows:
(i) Gurbachan Singh v. State of Punjab1980 Cri LJ 417 (D.B. Punjab & Haryana High
Court);

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(ii) Pushkar Raj v. The State of Punjab 1981 Cri LJ 1910 (S.J. Punjab & Haryana High
Court);
(iii) State of Punjab v. Harbans Lal1983 Cri LJ 13 (S.J. Punjab & Haryana High
Court);
(iv) Mustafa Sheikh v. Lalchand Sheikh 1985 Cri LJ 1183 (D.B. Calcutta High Court);
(v) M. Somashekhar v. S.A. Subbaraju 1989 Cri LJ 1686 (S.J. Karnataka High Court);
(vi) State of Himachal Pradesh v. Lal Singh 1990 Cri LJ 723 (F.B. Himachal Pradesh
High Court);
(vii) Sunil Kahar v. State of Bihar 1992 (2) BLJ 75 : 1992 Cri LJ 3647.
2.6. A question may also arise here why then was Section 360 retained at all in the
Code in view of the provisions of the Act, especially Section 19 of the Act. The answer
is obvious. Till 1973-74 when the new Code was framed and it came into force there
were certain pockets still left in the Country e.g. some parts of West Bengal where the
Act had not come into force. In those areas, in the absence of Section 360 of the
Code, the Courts would have been left with no means to release a convict, in
appropriate cases, on probation of good conduct etc. But apparently Section 360 of
the Code was intended to have a limited application in those areas where the Act was
not applicable. The position was quite different in Delhi and in most other parts of
the Country where the Act had already come into force and had rendered Section 562
of the 1898 Code inapplicable.
2.7. Is there any scope of vagueness that section-562 appearing in section-19 of
Probation of Offenders Act has to be read as section-360? I think 'NO'.
2.8. The impact of the above provisions, in view of the Probation of Offenders Act
and the new enactment of the Criminal Procedure Code requires and has to be
considered in the light of Section 8 of the General Clauses Act which reads as under:
8. Construction of references to repealed enactments. (1) Where this Act, or any
Central Act or Regulation made after the commencement of this Act, repeals and reenacts, with or without modification, any provision of a former enactment, then
references in any other enactment or in any instrument to the provision so repealed
shall, unless a different intention appears, be construed as references to the provision
so re-enacted. (2) Where before the fifteenth day of August, 1947, any Act of

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Parliament of the United Kingdom repealed and re-enacted, with or without

modification, any provision of a former enactment, then references in any Central
Act or in any Regulation or instrument to the provision so repealed shall, unless a
different intention appears, be construed as references to the provision so reenacted.
2.9. In Bishnu Deo Shaw v. State of West Bengal (AIR 1979 SC 964), the Hon'ble
Supreme Court ruled that Section 360 of the Code re-enacts in substance Section 562
of the Old Code. To quote from the judgment:
Section 360 of the 1973 code re-enacts, in substance, Section 562 of the 1898
Code....
2.10. Consequently, we have to read section-360 of new CrPC in Section-19 of PO Act
instead of Section-562 of the old Code.
2.11. Hon'ble High Court of Delhi was somehow of different view. In Criminal Appeal
No. 471 of 1999 dated 29.10.2002, the Hon'ble Delhi High Court was of the view that
section-360 CrPC was available, though it did not consider the provisions of Section19 of the Act. However, decision of the Hon'ble Delhi High Court was challenged
before the Hon'ble Supreme Court and the issue is now conclusively settled beyond
any further debate or discussion by the said decision of the Supreme Court in State
Through S.P., New Delhi vs Ratan Lal Arora (2004) 4 SCC 590, wherein the Supreme
Court examined the provisions of the Act and Section 360 of the Code and observed
& held as under:
Much stress was laid on the non-amendment of the Probation Act which referred to
the old Act and not the present Act. It was submitted that since there has been no
corresponding change in the Probation Act, therefore, the provisions of said Act
cannot be applied to cases under the Act. The argument overlooks the principles
underlying Section 8 of the General Clauses Act. When an Act is repealed and reenacted unless a different intention is expressed by the legislature, the reference to
the repealed Act would be considered as reference to the provisions so re-enacted.
*****
Consequently, the references to Section 562 of Old Code in Section 19 of the
Probation Act and to Section 5(2) of the Old Act in Section 18 of the Probation Act,
respectively have to be inevitably read as references to their corresponding
provisions in the newly enacted Code and the Act. Consequently, for the conviction

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under Section 13(2) of the Act the principles enunciated under the Probation Act
cannot be extended at all in view of the mandate contained in Section 18 of the said
Act. So far as Section 360 of the Code is concerned, on and from the date of extension
and enforcement of the provisions of the Probation Act to Delhi powers under
Section 562 of the Old Code and after its repeal and replacement powers under
Section 360 of the Code, cannot be invoked or applied at all, as has been done in the
case on hand. The view taken to the contra is not legally sustainable and cannot have
our approval.
2.12. Even further in yet another decision, the Hon'ble Supreme Court in Chhanni v.
State of U.P. (2006) 2 SCC (Cri) 466 observed and held as under:
Where the provisions of the Probation Act are applicable the employment of Section
360
of the Code is not to be made. In cases of such application, it would be an illegality
resulting in highly undesirable consequences, which the legislature, who gave birth to
the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom
has obliged the Court under Section 361 of the Code to apply one of the other
beneficial provisions; be it Section 360 of the Code or the provisions of the Probation
Act. It is only by providing special reasons that their applicability can be withheld by
the Court. The comparative elevation of the provisions of the Probation Act are
further noticed in sub-section-(10) of Section 360 of the Code which makes it clear
that nothing in the said Section shall affect the provisions of the Probation Act. Those
provisions have a paramountcy of their own in the respective areas where they are
applicable.
Two statutes with such significant differences could not be intended to co-exist at the
same time in the same area. Such co-existence would lead to anomalous results. The
intention to retain the provisions of Section 360 of the Code and the provisions of the
Probation Act as applicable at the same time in a given area cannot be gathered from
the provisions of Section 360 or any other provision of the Code. Therefore, by virtue
of Section 8(1) of the General Clauses Act, where the provisions of the Act have been
brought into force, the provisions of Section 360 of the Code are wholly inapplicable.
Enforcement of Probation Act in some particular area excludes the applicability
of the provisions of Sections 360, 361 of the Code in that area.
2.13. In the light of above discussion, there remains no doubt that Section-360 CrPC
does not have any application in Delhi. Therefore, all the probation orders are

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required to be passed only under the provisions of Probation of Offenders Act, 1958
which is in force in Delhi since 29.12.1960.

Procedure of Probation:
3. It is now at this stage the further problem arises as to how to follow the provisions
of the Act. Situations may be classified into some broad categories:
i. Court does not invoke the beneficial provisions of probation.
ii. The Court does wait for an application to be made by the accused for grant of
benefit of probation.
iii. The Court does not indicate the provisions under which it declined or granted the
benefit of probation.
iv. The Court decides the issue of probation without calling any report from a
probation officer.
v. Even after grant of probation, bonds are not executed in prescribed forms.
vi. Lastly, the post-release events are not supervised.
3.1. The first three categories which can be grouped together have an answer which is
more than simple. Section-361 CrPC is mandatory and does not leave any scope for
the Court not to invoke the beneficial provisions. Needless to say that for recording
its special reasons, the Court has to say that it cannot deal the offender under any of
the beneficial provisions available therein. And since this special reason is
mandatory, the Court can not abdicate its obligation on the ground that the accused
never made any application for probation. Section 361 CrPC does not talk about the
initiatives taken by the accused, but it casts an obligation on the Court to either
invoke the beneficial provisions or to provide it special reasons for not doing so.
Further, in the light of above discussion, it is clear that the provision which a Court
can invoke for granting probation is to be found under Probation of Offenders Act
1958.
3.2. Now, the second group can include fifth and sixth categories enumerated above.
I will discuss about it a little later. For the present, focus of prime importance is the
fourth category which deals with the probation report.

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3.3 Rarely, beneficial provisions of Probation of Offenders Act are invoked. And
unfortunately, without following the due process of law enshrined in the Act.
Section-4(2) of the Act will be of some significance which reads as under:
4(2) Before making any order under sub- section (1), the court shall take into
consideration the report, if any, of the probation officer concerned in relation to the
case.
3.4. The offender can only be released on probation of good conduct under section4(1) when the Court forms an opinion, having considered the circumstances of the
case, the nature of the offence and the character of the offender, that in a particular
case, the offender should be released on probation of good conduct and from
Section-4(2) it is clear that if Court wants to make an order of probation, it must call
a report from the probation officer. The section itself is clear that before applying the
section, the Magistrate should carefully take into consideration the attendant
circumstances. Expression 'shall' leaves no doubt that it is mandatory. However, the
other expression 'if any' may hint that the Court is not obliged to call any such report
and it is only obliged to consider such report if the same is available before the Court.
Further Section-6(2) of the Act employs similar terms but with specific phraseology
of calling the report. As such there was some confusion in this area.
3.5. Taking note of some difference of language u/s-6(2) and 4(2) of the Act, Hon'ble
Bombay High Court held that calling of report of was not obligatory before passing
probation orders. The case was the State Of Maharashtra vs Bodya Ramji Patil 1978
CriLJ 411. But another decision reported as State v. Naguesh G. Shet Govenkar and
Anr., AIR (1970) Goa 49 was in contrary terms. Other High Courts were also on
varying terms on this score.
3.6. Section-4(2) was elaborately dealt with in the case of R. Mahalingam v. G.
Padmavathi and Anr., (1979) Crl. LJ NOC 20 Mad., the Court therein observed as
under :
"If any report is filed by the probation officer, the Court is bound to consider it.
Obtaining such a report of the probation officer is mandatory since the sub-s.(1) of S.
4 says that the Court shall consider the report of the probation officer. Words "if any"
do not mean that the Court need not call for a report from the probation officer. The
words "if any" would only cover a case where notwithstanding such requisition, the
probation officer for one reason or other has not submitted a report. Before deciding
to act under S. 4 (1), it is mandatory on the part of the Court to call for a report from

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the probation officer and if such a report is received, it is mandatory on the part of
the Court to consider the report. But if for one reason or the other such a report is
not forthcoming, the Court has to decide the matter on other materials available to it.
In the instant case, the Magistrate passed order releasing the accused on probation
without taking into consideration their character. Held, the requirement of S. 4(1)
was not fulfilled and therefore the case remanded."
3.7. Fortunately, the above paragraph was quoted and relied upon by the Hon'ble
Supreme Court in M.C.D vs State Of Delhi And Anr 2005 SCC(Cri) 1322. In the very
same decision, the Hon'ble Supreme Court also relied upon Naguesh G. Shet(supra).
Clearly, views contrary to the same can not be accepted.
3.8. Now, the Decisions of Hon'ble High Court of Delhi may be noted. In H.P. Vaid vs
Parveen Soni & Ors, 80 (1999) DLT 221, it was held:
However, before parting with this judgment, it appears desirable to state that the
report of
the Probation Officer must invariable be called before releasing any accused on
probation under Section 4(1) of the Probation of Offenders Act, for clearly there is no
source of collecting necessary information required under Sections 3 or 4 of the Act.
Such a report would certainly help in assessing the antecedents, the family
background, commission of similar crime(s) earlier and the expediency of releasing
on probation. The expediency of releasing the accused, can be decided only on
perusal of the report of the Probation Officer for want of any other source of
information. This Court is not oblivious to the time which is spent in obtaining report
and difficulties faced in obtaining such reports especially in absence or nonavailability of the Probation Officer in cases of the accused who have migrated to
Delhi and there is no agency to submit requisite report or when they do not submit
report. As far as possible, the report of the Probation Officer should be insisted upon.
Chief Probation Officer Delhi also must ensure that the Probation Officers are made
readily available and give a report within a week by making an appropriate
arrangement.
3.9. But in a later decision, the Hon'ble High Court of Delhi without calling for the
report of probation officer granted probation to the accused i.e. in Criminal Revision
Petition No. 185 of 2004 decided on 26.03.2004. However, the said decision was
challenged before the Hon'ble Supreme Court and the decision was overruled in

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M.C.D vs State Of Delhi And Anr 2005 SCC(Cri) 1322 wherein the Hon'ble Supreme
Court formulated the following question:
In the above background, two questions of law arise for consideration by this Court :
1. Whether the High Court was correct in extending the benefit of the Probation of
Offenders Act, 1958 to the accused respondent without calling for a report from the
Authorities relating to the conduct of the respondent as per Section 4 of the Act.
*****
The Hon'ble Supreme Court discussed the provisions and relied upon Naguesh G.
Shet(supra) and R. Mahalingam(supra) and concluded as under:
The Court is bound to call for a report as per Section 4 of POB Act but the High
Court has failed to do so although the Court is not bound by the report of the
Probationer Officer but it must call for such a report before the case comes to its
conclusion. The word "shall" in sub-section (2) of Section 4 is mandatory and the
consideration of the report of the Probationer Officer is a condition precedent to the
release of the accused as reported in thecase of State v. Naguesh G. Shet Govenkar
and Anr., AIR (1970) Goa 49 and a release without such a report would, therefore, be
illegal.
3.10. With the decision of Hon'ble Supreme Court given in M.C.D vs State Of Delhi
And Anr(supra), there remains no doubt that before passing any probation order, the
Court is duty bound to call a report from probation officer under section-4(2) of the
Probation of Offenders Act.
The stage of probation report:
4. Now the question is about the stage at which such report should be directed to be
called.
4.1. Delhi has made the Probation of Offenders Rules 1960 which were notified vied
F.4(134)/59-DSW(ii). Rule-26 thereof reads as under:
26. Enquiry into the character and antecedents.- (1) The court may direct a
Probation Officer (as in Form 110) to inquire into the character and antecedents of
the accused, the circumstances in which the offence was committed and other
matters and submit a report on a prescribed date, which should ordinarily be the
expected date of delivering judgment. The court shall consult the report only after

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finding the accused guilty. If he is not found guilty, the report should be returned to
the Probation Officer concerned for record for purposes of future reference.
(2) The court may direct the Probation Officer to make any further investigations,
and where required, to have a medical or psychiatric examination of the offender,
and report to the Court for enabling it to decide action to be taken under Sections 3,
4, 5, 6 and 7 of the Act.
4.2. The rule requires that if the court is calling a report from the probation officer, it
should be available at the time of delivery of judgment. For this, the direction has to
come before the date fixed for judgment. The natural pre-condition would be that the
Court should issue a direction to the Probation Officer at the time of conclusion of
the final arguments if it is going to reserve the judgment and in other cases at any
time prior to that stage (sometimes it happens that a Court pronounces a judgment
directly after hearing the arguments).
4.3. However, Probation Officer may file the report before the date of delivery of
judgment if no specific direction regarding date has been made by the Court.
However, in such cases, the report should be filed in sealed cover. This may be
possible by virtue of Rule-16 which deals with the duties of Probation Officer.
4.4. The concept of probation applies between two stages of a criminal trial i.e. After
finding the accused guilty and before deciding about the sentence. Probation is not a
substituted sentence but it is based upon the concept of deferred sentencing policy
limited to a three years period.
4.5. Section-4(1) and Section-9(3) of Probation of Offenders Act clarify the concept of
deferred sentencing viz a viz probation.
Section-4(1) so far as relevant reads as under:
.......the Court may, instead of sentencing him at once to any punishment direct that
he be released on his entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period not exceeding three
years.............
Section-9(3) so far as relevant reads as under:

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(3) If the court, after hearing the case, is satisfied that the offender has failed to
observe any of the conditions of the bond or bonds entered into by him, it may
forthwith- (a) sentence him for the original offence;.....
4.6. It becomes clear that if concept of probation is invoked, the sentencing
procedure cannot be made applicable unless there is a breach of condition of bond.
And if probation period is successful, there can not be any question of sentencing. On
the other hand Rule-26 clearly provides that probation report can only be consulted
by the court if it finds the accused guilty otherwise the same shall be returned to the
Probation Officer. From the above, the following stages become clear:
i. The court shall issue a direction to the probation officer to submit its report and
this direction should be issued normally at the conclusion of final arguments;
ii. The probation report should normally be submitted in the Court on the date fixed
for delivery of judgment;
iii. The Court should consult the probation report only when it finds the accused
guilty;
iv. Thereafter, the Court should decide mandatorily as to whether it is going to
proceed to deal with the case under Probation of Offenders Act and if not it should
provide its special reasons as required u/s-361 CrPC;
v. The court can not give benefit of probation without calling a report from the
Probation Officer and also it can not decline the same without such report for
obvious reason that the report will compulsorily available with the Court at the time
of pronouncement of judgment;
vi. If the Court gives benefit of probation, no sentence should even be discussed;
vii. The Court then should complete the post-grant formalities.

What are the post-grant formalities?

5. The accused has to satisfy the court about fixed place and occupation of sureties
and himself as the case may be. This is clear from proviso appended to Section-4(1)
of the Act which reads as under:

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Provided that the court shall not direct such release of an offender unless it is
satisfied that the offender or his surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises jurisdiction or in which the
offender is likely to live during the period for which he enters into the bond.
5.1. Then the accused and his surety has to execute bonds of good behavior in FormIV appended to the Probation of Offenders Rules 1960. The form is specifically
provide therefore one can not use any other form available in the market or
otherwise.
5.2. The Court may also direct the accused to pay compensation and costs to the
victims under section-5 of the Probation of Offenders Act.
5.3. The Court during the probation period may also be required to act upon
application/report of Probation Officer moved under section-8 & 9 of the Act.
Appeal against order of Probation:
6. There has been certain confusion in respect of status of order of probation. The
question is can an appeal lie against any such order? Such problem emerged due to
tradition i.e. unless a sentence is passed, accused can not make any appeal. Whereas
this is not the position in law. A bare look at section-11 of Probation of Offenders Act
will clarify the position. Sub-section-(2) thereof reads as under:
(2) Notwithstanding anything contained in the Code, where an order under section
3 or section 4 is made by any court trying the offender (other than a High Court), an
appeal shall lie to the court to which appeals ordinarily lie from the sentences of the
former court.
6.1. It becomes amply clear that even if a trial court passes an order of probation, an
appeal is maintainable and that too in the same court where regular appeal would
have been preferred against a sentence passed by that trial court.
6.2. What is interesting to note is the party neutral approach of appeal in cases of
probation orders. Means, if a trial court grants probation to the accused, then the
accused can prefer an appeal to challenge his conviction and the prosecution (or
complainant as the case may be) can move an appeal to challenge the grant of
probation irrespective of the fact that the case was instituted on a police report or on
a private complaint. Section-372 to 378 CrPC can not create a bar against such
appeal for a simple reason that Section-11(2) of the Act is having a non-obstinate

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clause viz a viz CrPC. The language of Sub-section (2) of Section 11 seems to be
comprehensive, flexible and unrestricted as to the person who can prefer an appeal.
This being so, there may be no justification for confining the right of appeal
conferred under Section 11(2) only to the accused on the one hand and the State on
the other in State prosecutions, but it must be construed that the privilege of filing an
appeal conferred Under Section 11(2) is available to a private prosecutor as well.
6.3. In the appeal preferred against order of probation, the appellate court can set
aside such order and pass a sentence on the accused. It is clear from sub-section-(4)
of Section-11. It reads as under:
(4) When an order has been made under section 3 or section 4 in respect of an
offender, the Appellate Court or the High Court in the exercise of its power of
revision may set aside such order and in lieu thereof pass sentence on such offender
according to law: Provided that the Appellate Court or the High Court in revision
shall not inflict a greater punishment than might have been inflicted by the court by
which the offender was found guilty.
6.4. On the other hand if prosecution prefers an appeal against acquittal and
appellate court finds the accused guilty or if the accused prefers an appeal against
sentence and the appellate court upheld the conviction, then the appellate court may
also exercise the power to grant probation to the accused notwithstanding anything
in the CrPC. It becomes clear from Section-11(1) of the Act which reads as under:
(1) Notwithstanding anything contained in the Code or any other law, an order
under this
Act may be made by any court empowered to try and sentence the offender to
imprisonment and also by the High Court or any other court when the case comes
before it on appeal or in revision.
6.5. A further situation may also be contemplated. Trial court passes a sentence and
accused files an appeal. The appellate court upheld the conviction and sentence. The
accused moves a revision petition. Even then the Hon'ble High Court can pass an
order of probation by virtue of Section-11(1) of the Act.
6.6. There are other several situations related to appeal and revisions. But more on
that in some other paper to be written at some stage. For the time being, the above
discussion is sufficient.

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7. On the above detailed lines, a proceeding under Probation of Offenders Act 1958
can be completed.
********************
8. It is made clear that the entire discussion revolves around the mandatory duties
and responsibilities and has not touched upon the discretionary field i.e. the offences
for which probation can be granted and those for which it can not be granted.
9. Discussion concluded.