'Recidivism, Rehabilitation, Community Ties': Punjab & Haryana High Court Pens Down Factors For Grant Of Probation To A Convict

The Punjab & Haryana High Court has laid down sixteen guiding principles to be followed by sentencing Courts while exercising discretion for grant of probation to a convict.

A bench of Justice Arun Monga observed that Probation of Offenders Act was enacted to providing the offenders with a chance to reform rather than dumpling into jails.

“Probation can thus also be termed as an alternative form of punishment envisaged within the criminal justice system. In my opinion, following principles or what can be termed as potential benefits of release on probation ought to be kept in mind by the learned sentencing Courts below for exercise of judicial discretion to grant probation, provided a deserving case is made out,” it said.

The principles include the following factors which need to be applied by the sentencing courts before deciding plea for probation:

Nature of Offence: The severity and type of offence committed by the individual are important considerations

Individualized Justice: Under this head, the Court explained, “Before grant of the benefit of release on probation, one has to take into consideration the individual circumstances of the offender viz., the nature of the crime vis-a-vis the potential for positive change.”

Criminal History: A convict's prior criminal history must be assessed to determine if they have a pattern of repeat offences.

Rehabilitation Potential: The offender's willingness and potential to rehabilitate play a significant role.

Compliance with Probation Terms: A person's willingness and ability to comply with these terms would influence their eligibility for probation.

Preventing Recidivism: Probation, as an alternative to incarceration, can indeed help prevent first-time offenders from becoming habitual or "hardened" criminals.

Community Ties: An assessment of offender's ties to the community, such as family, employment, and stable housing ought to be carried out. Strong community ties can indicate a support system that can help prevent further criminal activity.

Risk to Public Safety: Assessments are made to determine whether releasing an individual on probation poses a low risk of committing new offences or harming others.

Reducing Overcrowding: Probation can help alleviate the overcrowding of jails and prisons.

Promoting productivity: 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 Reformation: Probation offers a second chance to offenders by allowing them to avoid imprisonment and providing an opportunity for reformation.

Reintegration into Society: Probation allows offenders to maintain ties with their families, jobs and communities, which can enhance their chances of successful reintegration after their sentence.

Compensation to the aggrieved: Court can even ask the offender to pay compensation (by way of penalty) to the aggrieved person as means of retribution or penance as a pre condition of release on probation.

Probation Officer Assessment: Probation officer may be asked by a court to conduct an assessment of the offender to gather information about their background, behaviour, and potential for rehabilitation. Such an assessment would help take an informed decision regarding probation.

Judicial Discretion: In the end, depending on facts and circumstances of the case, it is the discretion of court to determine whether to grant probation. It shall consider all relevant factors and balance the interests of rehabilitation, public safety, and justice in the decision-making process.

The observations come in a plea seeking leave to appeal against release of five convicts on probation, who were found guilty by a Sessions Court in 2016 for voluntarily causing hurt. They were tried together under Sections 148, 323, 316, 452, 506 read with Section 149 but convicted only under Section 323 IPC and were released on probation for a period of six months. They were directed to pay compensation of Rs.5,000/- each (total Rs. 25,000/-) to injured- Nasri.

The complainant argued that he convicts have been wrongly given the benefit of release on probation whereas they should have been sentenced to undergo imprisonment and pay fine.

Considering the submissions, the Court said, “Objectives and principles of criminal law as envisioned in the provision ibid, apart from deterrence against committing crime against society, are inter-alia focused on the reformation of offenders, which inherits the concept of probation.”

The Court emphasized that the goal of criminal law extends beyond mere punishment. While punishment serves to deter and hold individuals accountable for their actions, there is a growing recognition of the importance of addressing the underlying factors that contribute to criminal behaviour, it said.

Justice Monga further explained that the perspective emphasizes the potentials of offenders to reform and reintegrate into society as law-abiding citizens and probation is one of the mechanisms used to achieve this reformation objective.

In the light of the above, the Court opined that the release of the convicts on probation, as in the present case, can indeed serve the dual purpose of deterrence and reformation. By allowing release on probation, the aim herein is to deter their future criminal conduct, while also providing an opportunity for reform and rehabilitation.

It thus dismissed Nasri's application seeking leave to appeal.

CaseTitle: Nasri v. State of Haryana and others

Citation: 2023 LiveLaw (PH) 155

Click here to download/read the order.