The Punjab and Haryana High Court has laid down sixteen guidelines that sentencing courts must follow while exercising the discretion to award probationary sentence to a convict.
seat of Judge Aaron Monga He noted that the Offenders Probation Act was enacted to provide offenders with an opportunity to reform instead of being imprisoned.
“Thus probation can also be described as an alternative form of punishment provided for in the criminal justice system. In my opinion, the following principles or what may be termed the potential benefits of probation should be kept in mind by the sentencing courts below for the exercise of judicial discretion to grant probation, provided there is a case that merits it,” He Said.
The principles include the following factors that sentencing courts must apply before deciding on a motion for control:
Nature of the crime: The severity and type of crime committed by the individual is an important consideration
Individual justice: Under this heading, the court stated the following:Before probation is granted, one has to consider the individual circumstances of the offender, i.e. the nature of the offense against the possibility of positive change“.
criminal history: The convict’s past criminal history must be evaluated to determine if he or she has a pattern of recurrent offenses.
Possibility of rehabilitation: The offender’s desire and potential for rehabilitation play an important role.
Compliance with test conditions: A person’s willingness and ability to comply with these conditions may affect their eligibility for monitoring.
Preventing recidivism: Probation, as an alternative to imprisonment, can indeed help prevent first-time offenders from becoming habitual or “hardened” offenders.
Community relations: An assessment of the offender’s relationships with society, such as family, employment and stable housing, should be undertaken. Strong community ties can indicate a support system that can help prevent further criminal activity.
Danger to public safety: Evaluations are conducted to determine if an individual released on probation poses a low risk of committing new crimes or harming others.
Reducing overcrowding: Monitoring can help decongest jails and prisons.
Productivity Enhancement: By allowing offenders to remain in the community and engage in productive activities such as work, education, or community service, probation can contribute to making them productive members of society.
Second chance and fix: Probation provides a second chance to offenders by allowing them to avoid imprisonment and providing an opportunity for reform.
Reintegration into society: Probation allows offenders to maintain links with their families, jobs and communities, which can enhance their chances of successful reintegration after the end of their sentence.
Compensation for those affected: The court can also require the offender to pay compensation (by way of punishment) to the injured person as a means of retribution or atonement as a precondition to release on probation.
Monitoring Officer Rating: The court may ask the probation officer to conduct an evaluation of the offender to gather information about his or her background, behavior, and potential for rehabilitation. Such an evaluation would help in making an informed decision about testing.
Judiciary: Ultimately, depending on the facts and circumstances of the case, it is up to the court to decide whether or not to grant the probation. They must take into account all relevant factors and balance the interests of rehabilitation, public safety and justice in the decision-making process.
The remarks come in a petition for leave to appeal against the release of five convicts on probation who were convicted by the Sessions Tribunal in 2016 of voluntary causing harm. They were tried together under Sections 148, 323, 316, 452, 506 read with Article 149 but were only found guilty under Section 323 of the International Penal Code and released on probation for six months. They were directed to pay compensation of 5,000 rupees each (25,000 rupees in total) to the injured Nasri.
The complainant stated that the convicts were wrongly given the benefit of probation when they should have been sentenced to imprisonment and a fine.
After examining the notes, the court said:The aims and principles of criminal law as outlined in the preceding text, apart from deterrence against committing a crime against society, focus, inter alia, on reforming offenders, which inherits the concept of surveillance.“
The court stressed that the aim of criminal law goes beyond mere punishment. He added that while punishment serves to deter individuals and hold them accountable for their actions, there is growing recognition of the importance of addressing the underlying factors that contribute to criminal behaviour.
Judge Monga further explained that the perspective emphasizes the potential of offenders to reform and reintegrate into society as law-abiding citizens and probation is one of the mechanisms used to achieve this goal of reform.
In light of the above, the Court held that probation, as in the present case, could indeed serve the dual purpose of deterrence and reform. By allowing probation, the aim here is to deter their criminal behavior in the future, while also providing an opportunity for reform and rehabilitation.
Hence, Nasri’s request for leave to appeal was denied.
Case Title: Nasri v. State of Haryana and Others
Citation: 2023 LiveLaw (PH) 155