Criminology and Penology Project

On

“A study on probation and parole from Indian Perspective”

Submitted to:

Mr. Manoj Kumar

Faculty, Criminology and Penology

By:

Pankaj Sharma

Roll no. 100

Section A

Semester IX, B.A. LLB(Hons.)

Submitted on:

October 25, 2018

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

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 Declaration

I, Pankaj Sharma, of Semester IX, Section A, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Mr. Manoj
KumarFaculty, Criminology and Penology. The work is a bona fide creation done by me.
Due references in terms of footnotes have been duly given wherever necessary.

Pankaj sharma
Roll No. 100

Section A

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 Acknowledgements
I feel elated to work on the project “A study on probation and parole from
Indian Perspective”. The practical realization of the project has obligated the
assistance of many Persons. Firstly I express my deepest gratitude towards, Mr.
Manoj Kumar Faculty, Criminology and Penology, to provide me with the
opportunity to work on this project. His able guidance and supervision were of
extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing
extensive database resources in the library and for the internet facilities provided by
the University.

Some printing errors might have crept in which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Pankaj Sharma

Roll No. 100

Section A, Semester IX

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 Table of Contents

Declaration……………….………………………………………….2

Acknowledgments ………………….…………………………….…3

1. Introduction …………………………………….….…………5
 Research methodology………….…..6
 Objectives of study …………………6
 Questions ……………………….…..6
 Hypothesis……………………….….6
 Scope of study ……………………...6
 Mode of citation………………….….6

2. Probation ……………………………….…7
3. parole…………………………..… 13
4. key differences between probation and parole…….………..17

Conclusion………………………………………………………………18

Bibliography………………………………………………………….…19

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Introduction

Probation and parole as a method of correctional service evolved after the criminologists and
legal jurists thought of means of reformation to criminals by giving them a chance to prove
“their worth” and not confine them to the prison bars. The word “probation” is derived from
the latin word “probatus” meaning “tested” or “proved”.

Probation is a method of treating (correcting) suitably selected offender by releasing him into
the community upon certain conditions prescribed by the court on conviction, before
sentencing (offender) generally upon supervision of Probation Officer. Probation is governed
by the provisions of Probation of Offenders Act, 1958.

Parole is a method of conditional release of persons sentenced or committed to penal or

correctional institutions after serving a portion of the sentence or term imposed by the Court.
J.L. Gillin, “Parole is the release from a penal or reformative institution, of an offender who
remains under the control of correctional authorities, in an attempt to find out whether he is
fit to live in the free society without supervision.

In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894
and Prisoner Act, 1900. In parole there is a Parole Board consists of parole administrators
who are from among the respectable members of society.. They are performing a quasi-
judicial function

Correctional services like Probation and Parole is also important in the administration of
Criminal Justice and in the method of mainstreaming criminals as it is an integral part of the
total structure of the punishment system in a contemporary legal world. It also serves as an
alternative to imprisonment especially of short-term and has now taken within its purview all
the offences except those punishable with death or imprisonment for life.

Correctional services like Probation and Parole is a milestone in the progress of modern
liberal trend of reform in the field of penology. It is the result of the recognition of the
principle that the purpose of criminology is more to reform the criminal than to punish him.

The underlying object of Probation and Parole is to stop the conversion of youthful offenders
into stubborn criminals as a result of their association with hardened criminals of mature age
in case the youthful offenders are sentenced to undergo imprisonment in jail. The efforts
should be made to bring about correction and reformation of individual offenders and not to
resort to retributive justice.

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Research Methodology

The method of research adopted is doctrinal & descriptive in nature. Secondary sources of
information have been used to give the research work a concrete structure. Websites & e-
articles have been extensively referred for relying on the data. Other relevant sources as
suggested by the faculty coordinator have been referred to. Footnotes have been provided
wherever required.

Objectives of study

 To study about the probation and parole.

 To examine the legal analysis of parole and probation under various laws in India.
 To study various case-laws.

Questions

 What is Probation and parole? Whether they are the correctional methods to reform
the criminals?

Hypothesis

Probation is a methods of treating the offenders by releasing them on good behavior upon
conditions prescribed by court and under guidance of probation officer. Parole is the other
name of “Conditional Early Release” from Prison or Jail under supervision, after serving a
portion of the sentence that was sanctioned for the offender. Correctional Institution making
correction to the offender so each person of the society will be advanced in making correction
of the offenders

Scope of study

In this project, the author discusses about the probation and parole and how it is given under
the laws.

Mode of citation

The mode of citation of this project is bluebook 19th edition.

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Probation

Probation is one of the measures which may be used by Courts as an improved form of non-
custodial alternative in place of incarceration. This correctional device is being increasingly
used by the magistracy in modern times. It aims at rehabilitation of offenders by returning
them to society during the period of supervision rather than sending them into an unnatural
and socially unhealthy atmosphere of prisons. The offender is allowed to remain in the
community and develop as a normal human being in his own natural surroundings.

probation is used as an institutional method of treatment which is a necessary appendage of

the concept of crime and probation received statutory recognition for the first time in 1898
through Section 562 of the Code of Criminal Procedure, 1898 (now Section 360 of Code of
Criminal Procedure, 1973)

In the case of Chhanni v. State of U.P., in which the Supreme Court held that the
enforcement Probation of Offenders Act, 1958 in particular area excludes the applicability of
provisions of Section 360 of the Code of Criminal Procedure, 1973 and the scope of Section
4 of the Probation of Offenders Act is much wider than Section 360 of the Code of Criminal
Procedure which relates only to persons not under the age of 21 years, convicted for offences
punishable with fine only or with imprisonment up to 7 years, and any woman convicted of
an offence not punishable with death or imprisonment for life .

A person is granted probation when he is found guilty for commission of an offence, in which
the accused is not sent to jail rather he is allowed to stay in the community, provided that he
adopts ethical conduct and not commit any crime in future, or else he will be sent to jail.

The condition of probation differs regarding the accused and the criminal offence, which
encompasses community service, fines, reporting to a probationary officer, restriction on
consumption of drugs and alcohol, counselling, jail time and so forth.

The Probation of Offenders Act 1958 contains elaborate provisions relating to probation of
offenders, which are made applicable throughout the country. The Act provides four different
modes of dealing with youthful and other offenders in lieu of sentence, subject to certain
conditions. These include:—

(1) Release after admonition;

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(2) Release on entering a bond on probation of good conduct with or without supervision, and
on payment by the offender the compensation and costs to the victim if so ordered, the courts
being empowered to vary the conditions of the bond and to sentence and impose a fine if he
failed to observe the conditions of the bond;

(3) Persons under twenty-one years of age are not to be sentenced to imprisonment unless the
court calls for a report from the probation officer or records reasons to the contrary in writing;
and

(4) The person released on probation does not suffer a disqualification attached to a
conviction under any other law.

There are five types of probation:

 Straight probation – offenders sentenced only for the probation.

 Suspended sentence probation – judge pronounced for the jail or prison but the
sentences are suspended for the well behavior of the offenders.
 Split sentence – single sentence divided relatively short term jail and probation (
sentence for 5 years but 6 month in jail)
 Shock probation – offender initially send to prison but after few days recall to court
and placed on probation.
 Residential probation – structured probation but open and living environment.

The offender may be released on probation after the suspension of his sentence on the
following two considerations, namely:

1) His case may be considered as really hopeful when judicial leniency is expedient.
2) Probation may be intended to serve a positive role as method of guidance; assistance
and supervision of the probationer so that he may rehabilitate himself for the normal
social life.

As with the probation, the utilitarian aims of treatment and incapacitation have been the
paramount goals of probation

Process and procedure in probation: Probation can be viewed as a process with an

identifiable beginning and end. The process consist three basic stages:

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  Placement of an offender on the probation.
 Supervision and service delivery for the probationer.
 Termination of the probation.

Duties of Probation officers: Staff officers in probation departments are usually charged
with four primary tasks:

 Investigation,
 Intake,
 Diagnosis and
 Treatment Supervision.

Function of a probation officer:

Probation officers are the individuals that supervise offenders who have been sentenced to
non custodial sanctions or those released from incarceration. The main purpose of the
probation officer appointed by the court is to help the offender in reforming his character and
rehabilitating him in the society.

David Dressler mentioned four types of techniques in his book 'Practice and Theory of
Probation and Parole'1 These are:

Material aid techniques

If the probation officer thinks that the offender needs the financial help to return to the
normal life and to lead an honest life; he can recommended for financial aid. For example, if
any jobless labor is under the probation system the probation officer can help to get a job in
any mill or establishment if it helps him to lead a normal life and reform his character.

Executive techniques

The offender can be sent to any organization or person or agency of the society who are
related with the system and can help the offender by giving him specific aid, by the probation
officer. For example the offender can be sent to any legal organizer.

1
Dressler, David: Practice and Theory of Probation, 1959, p, 167

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Guidance techniques

The probation officer can help the rehabilitating system of the offender by giving him
different types of advice directly or indirectly.

Counseling techniques

The probation officer can help the rehabilitating system of the offender by giving him
different types of advice directly or indirectly

It must be stated that the provisions of the Probation of Offenders Act are not confined to
juveniles alone, but extend to adults also. Again, provisions of the Act are not only confined
to offences committed under the Indian Penal Code but they extend to offences under other
special laws.

The object of the Probation of Offenders‟ Act,1958 is the protection of society by preventing
the crime through rehabilitation of the offender in the society as its useful member without
curbing his freedom, subjecting him to rigorous prison life and depriving him of his social
and economic obligations. The Act also seems to accomplish this object by replacing punitive
approach of punishment with reformatory ones. The Act is also significant in the modern
liberal trend of reform in the field of penology. The Act also provides provisions for
reformation, social rehabilitation of prisoners, helping prisoners‟ families and in terms of
removal of disqualification in employment opportunities.

Section 4 of the act deals with the power of the court to release certain offenders on
probation of good conduct.

As per Section 4, if any person is found guilty of having committed an offence not punishable
with death or imprisonment for life and the court by which the person is found guilty is of
opinion that, having regard to the circumstances of the case including the nature of the
offence and the character of the offender, it is expedient to release him on probation of good
conduct, then, notwithstanding anything contained in any other law for the time being in
force, 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, as the court may direct and
in the meantime to keep the peace and be of good behavior.

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The section further requires that the offender or his surety has a fixed place of residence or
regular occupation in a place where the court exercises jurisdiction. Also, before making any
such order, the court shall take into consideration the report, if any, of the probation officer
concerned in relation to the case. However, it is not necessary that the court has to act on
probation officers report. It can also gather information from other source and on its own
analysis.

The court may also require the offender to remain under the supervision of a probation officer
during certain period, if it thinks that it is in the interests of the offender and of the public. It
can also impose appropriate conditions which might be required for such supervision. In case
the court does specify such conditional release, it must require the offender has to enter into a
bond, with or without sureties, enumerating the conditions. The conditions may relate to
place of residence, abstention from intoxicants, or any other matter as the court thinks
appropriate to ensure that the crime is not repeated.

The non-obstante clause in section 4 of the Act is a clear manifestation of the intention of the
legislatures that the provisions of the Act would have effected notwithstanding any other law
for the time being in force.

It is a general section under which the benefit is extended to the offenders under 21 years of
age and also offenders who are above 21 years of age. Discretion is exercised by the court
while giving the benefit of probation to the offenders above 21 years of age. No reasons are
to be recorded when the benefit of probation is granted to the offenders above 21 years of
age.

Section 4 laid down that the court shall consider the report of the P.O if any. It is not
obligatory on the court to call for and consider the report of the P.O. in terms of section 4(2)

An order of release on probation came into existence only after the accused is found guilty
and is convicted of the offence. Thus the conviction of the accused or the finding of the court
that he is guilty cannot be washed out at all because that is the sine quo non for the order of
release on probation of the offender. The order of release on probation of the offender is
merely in substitution of the sentence to be imposed by the court. This has been made
permissible by the c statute with a humanist point of view in order to reform youthful
offenders ad to prevent them from becoming hardened criminals.

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In Divisional Officer v T.R.Chellappan, the Supreme Court ruled that “ the order of release
on probation is merely in substitution of the sentence to be imposed by the Court and that the
factum of guilt on the criminal charge is not swept away merely by passing the order
releasing the offender on probation”.

Important place of Probation in Penology System –

Probation as a correctional measure occupies an important place in reformative justice. It

seeks to reconcile the conflicting claims of "punitive" and "treatment" reactions to crime. The
suspension of sentence under probation serves the dual purpose of deterrence and
reformation.

It would, therefore, be convenient to assess the utility of probation as a punitive reaction to

crime under the following heads:

Utility of probation from the point of view of the delinquent

Probation keeps the offender away from the criminal world. If the delinquent is set at liberty
without adequate guidance and supervision, he is inclined to feel that his delinquent conduct
has been accepted by society and thus he will continue his criminal activities unfettered.

The fear of punishment in case of violation of probation law has a psychological effect of the
offender. It deters him from law-breaking during the period of probation. Thus probation
indirectly prevents an offender from adopting a revengeful attitude towards the society.

Probation seeks to socialize the criminal as the liberty which he enjoys during the probation
period enables him to pick up those life-habits which are necessary for a law-abiding member
of the community.

Utility of probation from the stand-point of Society

It is well known that the interest of society are best served when all its members play a
positive role by seeking their self-rehabilitation. Since this object is fully achieved by the
probation system, it is indeed an effective method of preserving social solidarity by keeping
the law-breakers well under control.

Whatever work an offender is doing as a probationer, he is contributing to the national

economy. Thus, he no longer remains a burden on society.

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Parole

Parole is a release from prison after part of the sentence has been served, the prisoner still
conditions until discharged and liable to return to the institution for violation of any of these
conditions. It helps in reducing over-crowding in prisons. According to Donald Taft, “Parole
is a release from prison after part of the sentence has been served, the prisoner still remaining
in custody and under stated conditions until discharged and liable to return to the institution
for violation of any of these conditions.

The Supreme Court in Smt. Poonam Lata v. Wadhawan & Others, has clarified that parole
is a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on
parole does not, in any way, change the status of the prisoner.

In case of Avtar Singh v. State of Haryana, Supreme Court held that generally speaking,
the act of granting parole is an administrative action and parole is a form of temporary release
from prison custody, which does not suspend the sentence of the period of detention, but
provides conditional release from the prison and changes the mode of undergoing the
sentence.

The main objectives of parole technique as stated in the Model Prison Manual are:-

 To enable the inmate to maintain continuity with his family life and deal with family
matters;
 To save the inmate from the evil effects of continuous prison life;
 To enable the inmate to retain self-confidence and active interest in life.
In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894
and Prisoner Act, 1900. In parole there is a Parole Board consists of parole administrators
who are from among the respectable members of society. These members are assigned the
function of discharging convicted prisoners on parole after careful scrutiny. They are
performing a quasi-judicial function.

In this, the prisoner is temporarily or permanently released from the jail, subject to the
conditions set forth by the parole board. These conditions ensure the safety of the members of
the society include appearing before the parole officer whenever needed, obeying the law,
restriction on the consumption of alcohol or drugs, avoiding contact with certain people,
restriction on leaving the specified geographical area without the permission of the officer,
getting employment and so forth.

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While on parole, the convicts are not considered as free from their sentence, rather they have
to serve the community and rehabilitate themselves and comply with the rules specified, or
else they will be sent back to jail on the grounds of the original sentence.

In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894
and Prisoner Act, 1900. Each of the States has its own parole rules, which have minor
variations with each other. There are two types of parole- custody and regular.

The custody parole is granted in emergency circumstances like death in the family, serious
illness or marriage in the family. It is limited to a time span of six hours during which the
prisoner is escorted to the place of visit and return therefrom. The grant of parole is subject to
verification of the circumstances from the concerned police station and is granted by the
Superintendent of Jail.

Regular Parole is allowed for a maximum period of one month, except in special
circumstances, to convicts who have served at least one year in prison. It is granted on certain
grounds such as:

 Serious Illness of a family member

 Accident or Death of a family member
 Marriage of a member of the family
 Delivery of Child by wife of the convict
 Maintain family or social ties
 Serious damage to life or property of the family of convict by natural calamities
 Pursue filing of a Special Leave Petition.

Certain categories of convicts are not eligible for being released on parole like prisoners
involved in offences against the State, or threats to national security, non-citizens of India etc.
People convicted of murder and rape of children or multiple murders etc. are also exempted
except at the discretion of the granting authority.

As per procedure, after an inmate seeks parole, jail authority (Superintendent) asks for a
report from the police station that had made the arrest. The report, with all other papers like
medical report (in case of illness being reason for parole), recommendation of the
Superintendent are then sent to the Deputy Secretary, Home (General), State Government
which decides on the application

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In some States, the application along with the police report and recommendation is sent to the
Inspector General of Prison, which is then considered by the District Magistrate. The State
Government takes the decision in consultation with the District Magistrate. A prisoner who
overstays parole is deemed to have committed an offence under Section 224 Indian Penal
Code, 1860 and may be prosecuted with Government sanction and forfeit all remissions
earned.

Judicial Position on Parole

In the view of Indian judicial system, parole is claimed to be a success in rehabilitation and
checking crime attitude. Parole has been defined by Hon. Court as “a conditional release of a
prisoner, generally under supervision of a parole officer, who has served part of the term for
which he was sentenced to prison”. Parole relates to executive action taken after the door has
been closed on a convict. [Mohinder Sing vs state of Haryana, 2000 ]

During parole period there is no suspension of sentence but the sentence is actually
continuing to run during that period also.”[sunil fulchandshah vs Union of india ,2001]

Hon. court remarked that “It is not out of place to mention that if the State takes up a flexible
attitude it may be possible to permit long spells of parole, under controlled conditions, so that
fear that the full freedom if bailed out, might be abused may be eliminated by this
experimental measure, punctuated by reversion to prison. Unremitting insulation in the harsh
and hardened company of prisoners leads to many unmentionable vices that humanizing
interludes of parole are part of the compassionate constitutionalism of our system” [ Babu
Singh and Ors. v State of U.P]

The Court opined that persons kept incarcerated and embittered without trial should be given
some chance to reform themselves by reasonable recourse to the parole powe, calculated
risks, by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction
being wisely exercised. [Babulal Das v The State of West Bengal ]

In Inder Singh v The State of Delhi Administration the Court has emphasized on the need
for liberal use of parole even in the case of heinous crimes.

Parole Regulations

1) The paroled person should hold the permit always and should produce on being tendered
by any police officer or magistrate or any other competent authority.

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2) He shall not associate with notorious bad characters, ruffians and anti-social elements.

3) He shall not indulge in coercing any of the witnesses or complainant to adduce evidence in
his favor.

4) He shall report any charge in the address or his movement and leaving the locality or
jurisdiction which is specifically prescribed in

his behalf.

5) He shall also obey all laws and public ordinances.

6) He shall not indulge in alcoholism, intoxicating beverages and narcotic.

Refusal of Parole

They reject parole on grounds like breach of peace or the possibility of the prisoner
committing a crime during the parole period,

The criteria for probable refusal of parole, laid down by Delhi High Court are as follows:

i) A reasonable apprehension, based upon material available with the Government that the
petitioner, if released on bail may not return back to Jail to undergo the remaining portion of
the sentence awarded to him;

ii) A serious apprehension of breach of law and order or commission of another offence by
the petitioner if he comes out on parole;

iii) Past conduct of the petitioner such as jumping the bail or parole granted earlier to him;

iv) A reasonable possibility of the petitioner trying to intimidate or harm those who have
deposed against him or their relatives.

The Court emphasized that it is neither possible nor desirable to exhaustively lay down all
such grounds as would justify denial of parole in a particular case. Each case has to be
examined by the Government dispassionately and with an open mind.

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Key Difference Between Probation and Parole

The points stated below are relevant, so far as the difference between probation and parole is
concerned:

1) Probation refers to the sentence given to the criminals, in which they remain out of
prison, under the supervision of an officer and follows the rules set forth by the court.
Parole connotes the before time release of the inmate, on the condition that the inmate
will be under the supervision of the authority and detention will be resumed upon the
non-compliance of conditions specified.
2) Probation is granted by the judge instead of the imprisonment, whereas parole is
nothing but a form of conditional release from the prison.
3) The decision of probation of an accused or suspect is taken by the court. Unlike, the
parole board takes the decision regarding parole of a prisoner.
4) The probation is granted to the accused before incarceration, i.e. in spite of directly
sending the accused to the jail, they are given a chance to rehabilitate themselves,
through this process. On the other extreme, parole is allowed after the offender has
completed a specified portion of their sentence term in prison.
5) Probation is awarded to those person’s who have no prior criminal record so far and
also for the crimes that do not involve violence. As against, parole is allowed to those
criminals which are already in jail, and also available to serious offenders, who pursue
good conduct, during the term of their sentence.
6) A person who is granted probation, reports to the probation officer, however, failure
in reporting to the appropriate authority may lead to resentencing to jail, for a
particular period. Conversely, the offender under parole has to report to the parole
officer, but in case if the accused defaults in reporting without reasonable cause, the
offender is sent back to the jail on the grounds of the original sentence.

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 Conclusion

The release on probation of good conduct without supervision of probation officer is

unjustified and undesirable for it defies the very definition of probation according to which it
means conditional suspension of sentence. The violation of conditions of probation leads to
its revocation and imposition of the suspended sentence. It implies that there must be
someone to watch and ensure the compliance of conditions by the probationers. Freedom and
liberty of conscience should be the concept of parole and establish societal love and
acceptance.

probation and parole share many similar aspects but are not one and the same thing as
probation is for those offenders who do not have any previous criminal record, whereas
parole is for those convicts who are serving detention due to a serious crime committed by
them, but pursues good behaviour and follows the rules of jail properly. So, for that, they are
awarded parole.

After releasing from the jail we have give them some works on which matter he is able to do
and we have to help them to preventing the stress

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 Bibliography

 Paranjape N.V. Prof., Criminology and Penology with Victimology, 16th Edition,
Central Law Publications, Allahabad, 2014,
 Taft R. Donald, Criminology (4th Ed.).
 History of Parole System, www.wikipedia.org
 JaytilakGuha Roy, Prisons and Society: A Study of the Indian Jail System (Gian
Publishing House Delhi 1989)
 J. C. Chaturvedi, Penology and Correctional Administration (Isha Books New Delhi
2006)
 All India Jail manual
 Indian Kanoon.com for relevant court decisions

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