A COMPARATIVE STUDY OF PROBATION AND PAROLE

This article is written by Adhila Muhammed Arif, a student of

Government Law College, Thiruvananthapuram. This article seeks
to compare the provisions of probation and parole in the Indian
legal system.

Table of Contents

1. Introduction

2. Meaning of probation

2.1. Code of Criminal Procedure

2.1.1. Release on probation of good conduct

2.1.2. Release after admonition

2.1.3. Special reasons for not granting probation

2.2. Probation of Offenders Act, 1958

2.3. Doctrine of Harmonious Construction

2.4. Merits and demerits

3. Meaning of parole

3.1. Refusal of parole

3.2. Types of parole

3.2.1. Custody parole

3.2.2. Regular parole

3.3. Procedure

3.4. Merits and demerits

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4. Distinction between probation and parole

5. Conclusion

6. References

Introduction

Serving punishment for those who indulge in criminal activities is an

important function of the criminal justice system. There are various
theories as to why and how offenders are punished. The main
theories of punishment are retributive theory, preventive theory,
deterrent theory and reformative theory. Imprisonment is the most
popular form of punishment and it is said to be both preventive and
deterrent. However, we have been seeing a shift in society's
approach towards punishment. Now, many scholars are of the
opinion that a reformative model of punishment is necessary, as
our primary aim should be reformation and rehabilitation of
criminals. Many academicians and jurists are of the opinion that
corporal punishment and imprisonment harden the minds of petty
offenders, especially first time offenders. Therefore, it is necessary
that in certain cases, offenders must be provided with a chance to
redeem themselves. Both parole and probation are recognized as
methods of correction and rehabilitation in the Indian criminal
justice system.

Meaning of probation

The word probation is derived from the Latin word 'probare', which
means 'to test' or 'to prove'. It is an alternative method of
correction which is non-custodial. If it is established that
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incarceration is not suitable for the offender, then the offender can
be released into his community under the supervision of probation
officers, instead of being imprisoned. In India, the provisions related
to probation in the Indian legal system are provided mainly under
the Code of Criminal Procedure, 1973 and the Probation of Offender
Act, 1958.

Initially, the provision of probation was given in Section 562 of

CrPC, 1898. After several amendments, the provision is currently
provided by Section 360. The Parliament of India enacted the
Probation of Offenders Act in 1958 before the amended CrPC came
into force in 1973, which contains certain provisions not covered by
the CrPC.

Code of Criminal Procedure

In CrPC, the provisions that deal with probation are Section 360 and
361. Section 360(10) explicitly states that the provisions in Section
360 and 361 do not affect the validity of the provisions in the
Probation of Offenders Act or Children Act, 1960 or any such law.

Release on probation of good conduct

Section 360(1) of the Code of Criminal Procedure is what deals with

probation. According to this Section, if

1. Any person who is not below the age of twenty-one and is

convicted of a crime for which the punishment is either
imprisonment of seven years or a fine,
2. or any person below the age of twenty-one or any woman
convicted of an offence that is not punishable with life
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 imprisonment or death penalty and the offender has not been
convicted in the past,
3. and appears before the court, the court may release the
offender on the promise of good behaviour or good conduct,
on entering into a bond with or without sureties, to serve the
sentence if called by the court during the fixed period.

In the case of Phul Singh v. State of Haryana (1979), the Court

stated that probation on the ground of good conduct cannot be
granted to someone in his twenties who has committed a heinous
offence like rape.

Release after admonition

As per Article 360(3), the offender can be released when the

following conditions are satisfied:

1. The offender has not been convicted in the past.

1. The offence for which he is convicted is theft, theft in a
building or dishonest misappropriation or any offence under
IPC that is punishable with imprisonment of not more than two
years or with a fine only. In the case of Ahmed. V. State of
Rajasthan (2000), the Court stated that this provision cannot
apply to a person who has used explosives to incite communal
tension.

Special reasons for not granting probation

If the court does not award probation, the reason for not providing
probation to the offender must be expressly stated in the judgment,
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whether it's as per CrPC, Probation of Offenders Act, Children Act or
any such law, as per Section 361.

Probation of Offenders Act, 1958

In this Act, the provision of release on admonition is provided by

Section 3 and the provision of probation of good conduct is
provided by Section 4, and the terms are the same as the ones in
Section 360 of CrPC.

Section 5 of the Act permits the court, if it is found suitable, to

direct the offender to pay compensation to the victim for the loss or
injury incurred to him or even the cost of the legal proceedings.

Section 6 of the Act deals with offenders below the age of 21.

This Section states the following:

* The court has to first see whether Section 3 or Section 4 of the Act
is applicable for the offender under the age of 21. For that, the
court has to call for the report of the probation officer, which is
mandatory.

* On receiving the report, the court can decide whether the

provisions are applicable or not.

* If the court doesn't grant probation, it must explicitly state the

reasons for not doing so.

Section 7 of the Act states that the report of the probation officer is
meant to be confidential. Such a report is only mandatory while
dealing with offenders under the age of 21.

Doctrine of Harmonious Construction

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Even though the new CrPC was enacted subsequent to the Act, it
does not affect the applicability of the Act, especially when Section
360(10) explicitly recognizes the validity of the Act. Therefore, we
could say that offenders are entitled to the benefits of both CrPC
and the Act. According to the Doctrine of Harmonious Construction,
the legislature would not intend to contract themselves. Thus, the
enactment of the new Code would not destroy the enforceability of
the Act.

Merits and demerits

The following are the merits posed by the method of probation:

1. It helps to prevent first time offenders from being influenced by

criminals in prison.

2. It protects and rehabilitates juvenile offenders.

3. It helps in preventing prisons from being over-crowded.

4. It provides an offender with a second-chance to function normally

in society.

FYERS

The following are the demerits of the system of probation:

1. It permits offenders to free themselves from legal consequences.

2. It sends a bad message to people intending to commit crimes

that they can walk out free.

Meaning of parole
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The word 'parole' originates from the French phrase "je donne ma
parole", which means "I give my word". Like probation, the
objective of parole is to allow the prisoner to redeem himself. But
parole is a form of release that is applicable only for offenders who
are undergoing their prison sentence.

In India, rules regarding parole are provided by the Prisons Act,

1894 and the Prisoners Act, 1900. However, there is no completely
uniform law of parole in India as the state governments are free to
make their own laws for parole. The guidelines for parole have
minor variations from state to state.

Refusal of parole

The following are the types of offenders who cannot be granted

parole:

* Who are not citizens of India.

* Convicted for crimes that pose a threat to national security.

* Convicted for crimes against the State.

* Violation of disciplinary rules in prison.

Types of parole

There are mainly two types of parole, which are custody parole and
regular parole.

Custody parole
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Custody parole is also called emergency parole. It is granted for
fourteen days for reasons like the death of close family members
like grandparents, parents, siblings, children, spouse, for the
marriage of a family member like that of a sibling or son or
daughter, etc.

Regular parole

Regular parole is granted for a maximum period of one month,

usually for offenders who have served at least one year of their
sentence. It is granted for reasons similar to the following:

* Due to any family member being seriously ill.

* Death or accident of a family member.

* When the convict's wife has given birth.

* To maintain familial ties.

* When there has been serious damage to the life and property of
his family due to any natural calamity.

* To file for a special leave petition.

Procedure

On the filing of a petition for parole, usually the Superintendent of

the jail requests a report from the police station which arrested the
convict. The report, along with all the necessary documents
required for the justification of the request for parole and the
recommendation of the Superintendent, is submitted before the

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Deputy Secretary, Home (General), State Government, and he
decides whether the convict must be granted parole or not.

In some states, the above mentioned documents are sent to the

Inspector General of the Prison and he then sends them to the
District Magistrate. The District Magistrate, on the consultation of
the state government, decides whether or not parole has to be
granted.

Merits and demerits

As established in the cases of Budhi v. State of Rajasthan (2005)

and Charanjit Lal v. State

(1985), the provision of parole has certain objectives and purposes.

The following are the merits or purposes of provision of parole, as
per the decisions:

1. It enables prisoners to stay in touch with their families and

community.

2. It helps them to be involved in important matters pertaining to

their families, and also solve their personal problems.

3. It gives them a short period of relief from the ill effects of being
in prison.

4. It achieves the purpose of rehabilitation and reformation of the

prisoner.

5. It encourages prisoners to maintain good conduct in prison.

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The following are the demerits of the provision of parole:

1. Good conduct during imprisonment is not a guarantee for good

conduct after release.

2. The chances of political interference are very high. Privileged

prisoners with political connections have it easier to receive parole.

Distinction between probation and parole

1. Probation is granted to offenders who are released into the

community under supervision, instead of being imprisoned. But
parole is a temporary release for prisoners and comes with
conditions to be followed by the prisoner during that period.

2. In India, probation is governed by the Code of Criminal Procedure

and the Probation of Offenders Act. But we cannot find a uniform
and concrete set of rules and regulations for parole. Though it is
recognized under the Prisons Act and Prisoners Act, the state
governments are authorized to issue their own parole guidelines,
causing variation in parole guidelines across the nation.

3. Probation refers to the judgement given by the court to convicts.

Meanwhile, parole is just an arrangement of the temporary release
of prisoners.

4. Probation is an alternative form of penalty granted instead of

imprisonment, but parole is granted during imprisonment. Parole is
not an alternative to imprisonment.

5. Probation is pronounced by the court. Probation is judicial in

nature. Parole in India is usually decided by the Deputy Secretary of
the Home Ministry of the State or by the District Magistrate. Parole
is mostly quasi-judicial in nature.
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6. Probation is granted before the convict undergoes imprisonment
and parole is granted after the prisoner undergoes a minimum
period of imprisonment.

7. Probation is not granted to offenders who have been imprisoned

or convicted before.Parole is granted to offenders undergoing
imprisonment.

8. When an offender who has been released on probation, defaults

on any conditions of probation, he is resentenced to prison for a
particular period of time. But violating the conditions of parole
sends a convict back into prison to resume the imprisonment based
on the original judgment.

9. Probation is the first stage in the correctional system of an

offender. But parole is in the last stage after the offender
undergoes a period of punishment.

10. There is less stigma for a person undergoing probation as he is

not sentenced to prison.

But when a prisoner is released on parole, he would face

discrimination in society.

Conclusion

To sum up, both parole and probation are legally recognized

methods of rehabilitation and correction in the criminal justice
system of India, though they are not recognized as 'rights' per se. It
helps in reducing the ill effects of imprisonment on convicts and
reduces the negative influence of hard-core criminals in the minds
of other convicts. However, it might create an impression on many

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people with malicious intentions that the criminal justice system is
lenient and that they would not suffer any repercussions.

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