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Department of Laws

" ALTERNATIVES TO IMPRISONMENT"

Submitted to. Submitted by

Mrs. Reena. Priyanka

(B.A.LL.B. 5th year)

ALTERNATIVES TO

IMPRISONMENT

INTRODUCTION

Alternatives to imprisonment are a positive aspect of a criminal justice system. It is the reformative approach of crime. India has some provisions, but the practical applicability of these features is absent. DRAWBACK OF IMPRISONMENT ● Locking up of human beings and keeping in custody is totally against the basic principles of humanity. ● Prisons are overcrowded. ● Overcrowding has lead to the scarcity of resources to provide for proper accommodation, health care and neglect of schemes for reformation and offender rehabilitation. ● Adversely affects the justice system and hereby the safety and health of society.

● Remission ● Open prisons PROBATION The concept of probation is based on the concept of reformative theory. Mahatma Gandhi:- hate the crime, not the criminals. Probation is originated from the Latin word "probatio" which means testing time. In modern context the concept of probation is originated in USA. John Augustus is known as the father of Probation.

Meaning :- Probation is a period of time during

which a person who has committed a crime has to obey the law and be supervised by the probation officer rather than being sent to prison. The conditional release of an offender on the promise of good behaviour is known as Probation. In other words :- It is suspension of sentence of an offender by the court and releasing him on certain

conditions to live in community with or without the supervision of a probation officer.

Objective :- Probation is intended to be used to

prevent young person's from being committed to jail where they're associated with hardened criminals who provoke for involvement in criminal activities.

Essential requirements of granting

Probation

● Accused must be first offender- Habitual offender is not released on Probation. ● Nature of the offence - Probation is also determined on the nature of the offence. ● Character of the offender. ● Circumstances of the case. Acts related to Probation:- There are two acts under which the concept of probation is covered- ● Criminal procedure code,1974 (Section 360 &

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 behaviour: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been

heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) Admonition (It means to threaten to follow the rules during the probation period):- ● In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or ● any offence punishable with fine only and ● no previous conviction is proved against him, ● the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any

requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour) shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) Fixed place of Abode :- The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) Issue warrant :- If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may

either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Overriding provisions : - Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

Section 361 :- Special reasons to be

recorded in certain cases

Mandatory for the judge to declare the reasons for not awarding the benefit of probation :- ● Where in any case the Court could have dealt with,- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or

(c) In any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case. (2) A court which passes an order under section 4 or the District Magistrate of the district in which the offender for the time being resides may, at any time, appoint any probation officer in the place of the person named in the supervision order. Explanation.—For the purposes of this section, a presidency-town shall be deemed to be a district and chief presidency magistrate shall be deemed to be the district magistrate of that district. (3) Control of District Magistrate :- A probation officer, in the exercise of his duties under this Act, shall be subject to the control of the district magistrate of the district in which the offender for the time being resides.

Section 14. Duties of probation officers.—

A probation officer shall, subject to such conditions and restrictions, as may be prescribed :-

● (a) inquire , in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court; ● (b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment ; ● (c) advise and assist offenders in the payment of compensation or costs ordered by the Court; ● (d) advise and assist , in such cases and in such manner as may be prescribed, persons who have been released under section 4; and ● (e) perform such other duties as may be prescribed.

Section 15. Probation officers to be public

servants:-

of the offence and the character of the offender, it is expedient to release him on probation of good conduct, ● then 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 behaviour: ● Fixed place of abode :- 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. (2) Consider the Probation report :- 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) Supervision Order :- When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) Bond and it's Conditions :- The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, ● to observe the conditions specified in such order and ● such additional conditions

make at the same time a further order directing him to pay— (a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and (b) such costs of the proceedings as the court thinks reasonable. (2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

Section 9. Procedure in case of offender

failing to observe conditions of bond :-

(1)Arrest warrant or issue summon:- ● If the court which passes an order under section 4 in respect of an offender or any court which could have dealt with the offender in respect of his original offence ● has reason to believe , on the report of a probation officer or otherwise, that the offender has failed to observe any of the

conditions of the bond or bonds entered into by him, ● it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons. (2) Remand or Bail :- The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing. (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 ; or (b) where the failure is for the first time , then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.