When addressing one of the most pivotal legal considerations directly impacting the fate of convicts eligible for probation, the Punjab and Haryana High Court delivered a landmark judgment that reverberates with profound significance. In its recent ruling, the court, presided over by the distinguished and erudite Hon’ble Mr. Justice Arun Monga, unequivocally established a comprehensive framework of 15 pivotal principles. These principles are instrumental in shaping the release of convicts during their probationary period, and they stand as a testament to the court’s unwavering commitment to fairness and justice in criminal cases.
The case in question, Nasri Vs. State of Haryana and Others, as identified by CRM-A-38-MA-2017 (O&M) and Neutral Citation No. 2023:PHHC:099408, serves as the legal crucible upon which these principles are forged. In an act of remarkable foresight, Justice Arun Monga, sitting as a Single Judge Bench, has mandated the wide dissemination of these principles. The court has taken the laudable step of instructing the Registry to circulate copies of this judgment to all courts across Punjab, Haryana, and Chandigarh. This dissemination serves as an essential step in ensuring that these principles, along with their sub-clauses and the pertinent provisions of the Probation of Offenders Act, 1958, are well-versed among the judges who operate within the District Judiciary.
The 15 core principles presented by the High Court are nothing short of a legal compass, guiding judicial discretion in cases of probation. These principles encompass a wide spectrum of considerations, including the nature of the offense, the delivery of individualized justice, an examination of the criminal history, the potential for rehabilitation, adherence to probationary conditions, the imperative of preventing recidivism, evaluating community ties, assessing the risk to public safety, the reduction of overcrowding in correctional facilities, the promotion of productivity, the opportunity for a second chance and reformation, the facilitation of reintegration into society, the obligation of providing compensation to the aggrieved, probation officer assessments, and, notably, the exercise of judicial discretion.
It is important to highlight that the Punjab and Haryana High Court, in the course of rendering these vital principles, also addressed a plea filed by Nasir. Nasir sought leave to appeal the release of five convicts who were convicted on December 1, 2016, by an Additional Sessions Judge in Palwal for their involvement in an assault case. The High Court, in its wisdom, dismissed Nasir’s plea.
This article will delve into the specifics of each of these 15 guiding principles, dissecting their implications and significance within the broader spectrum of criminal justice. As we embark on this journey through the nuances of these principles, the overarching objective remains the promotion of a just and rehabilitative approach to criminal sentencing, one that accommodates the unique circumstances of each case and stands as a beacon of fairness in our legal landscape.
To put things in perspective, the Bench envisages in para 2 that, “Succinct facts of the present case, as noted by learned trial Court in the impugned judgment, are that on 27.06.2012 at about 6.00 pm, complainant went to her vacant plot for tethering her cattle. Accused Aslam resisted the same due to which an altercation took place. Later on, accused Yusuf, Aarif, Arshad, Ibri, Islam, Sajid, Kallu, Jubeda, Nasi, Sabroon, Sansida and Asraf, having lathies and dandas, entered complainant’s house and attacked her. Nasri gave kick blow on her stomach, whereas Jubeda gave leg and fist blows. On hearing noises, mother-in-law of complainant came to rescue her. Ashraf gave kick blow to her mother-in-law on her stomach. When they raised hue and cry, Hari Singh and Sabir reached the spot and accused persons fled away threatening to kill the complainant. At that time complainant was four months pregnant. She was taken to hospital where after medical examination it was found that her child died in womb. Only DDR was recorded of the incident and that is where it was dropped.
2.1 A private complaint was then filed by applicant Nasri in the Court against 12 persons, including 5 private respondents No. 2 to 6 herein for offences under Sections 148, 323, 452, 316, 506 read with Section 149 IPC. The learned Ilaqa Magistrate recorded the preliminary evidence and committed the case to learned Sessions Court as the offence under Section 316 IPC was triable exclusively by the Court of Session.”
As it turned out, the Bench states in para 3 that, “The learned Additional Sessions Judge, Palwal framed charge against all the 12 accused persons for offences under Sections 148, 323, 452, 316, 506 read with Section 149 IPC. On conclusion of trail, learned Additional Sessions Judge passed the impugned judgment dated 01.12.2016 holding private respondents No. 2 to 6 namely Yusuf, Aarif, Jubeda, Nasri wife of Islam and Shamshida and convicting them for the offence under Section 323 IPC and wholly acquitting the remaining 7 accused. The aforesaid 5 convicts were extended the benefit of probation under Section 4 of the Probation of Offenders Act, 1958 and required to pay the compensation of Rs.5000/- each, total Rs. 25000/- to injured/complainant Nasri.”
Do note, the Bench notes in para 4 that, “The applicant-appellant’s grievance is two fold. Firstly; that the five private respondents have been wrongly acquitted of the charge for offences under Sections 148, 452, 316, 506 read with section 149 IPC, though they should have been convicted for these offences also; secondly; that the convicts have been wrongly given the benefit of release on probation whereas they should have been sentenced to undergo imprisonment and pay fine.”
Most notably, the Bench mandates in para 11 propounding that, “There is no gain saying that the relevant statutory provisions and the principles underlying and pertaining to release of offenders on probation, instead of straightaway sentencing them, need to be kept in mind by the Courts while passing sentencing orders.
11.1 Probation of Offenders Act, 1958 (for short “Act”) was enacted in order to save offenders in appropriate cases from being habitual offenders by providing them with a chance to reform rather than dumpling into jails. For ready reference, Section 4 of Act is reproduced herein below:
Section 4 in The Probation of Offenders Act, 1958
4. Power of court to release certain offenders on probation of good conduct.—
(1) When 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 behaviour: 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) 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) 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) 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 with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
11.2. 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 inheres the concept of probation. Modern criminal justice system often aims to balance punishment with rehabilitation, emphasizing the potential for positive change in individuals who have committed crime. 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. This perspective emphasizes the potentials of offenders to reform and reintegrate into society as law-abiding citizens. Probation is one of the mechanisms used to achieve this reformation objective. In certain cases, certain offenders may be asked to remain under community supervision rather than being incarcerated. During such probation period, the offender can be put to follow certain conditions, such as regular reporting to a probation officer, participating in counselling or treatment programs and maintaining employment or education. The aim is to provide support, guidance and opportunities for the offender and to address the root causes of their criminal behaviour and develop positive life skills. Close monitoring and guidance provided during probation can help the offender make positive changes in their life and reduce the likelihood of reoffending.
11.3 Overall, the concept of focusing on reformation and using alternatives to imprisonment, such as release on probation, reflects a more holistic approach of criminal justice that takes into account the potential for positive change and the overall betterment of both the individual and society.
11.4 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.
a) Nature of the Offense: The severity and type of offense committed by the individual are important considerations. Less serious offenses, such as non-violent crimes or violent but arising out of self defense or first time offenses, might make an individual more eligible for probation.
b) Individualized Justice: 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. It allows for tailored sentencing that considers the unique needs and characteristics of the offender, promoting a more just and proportionate response to the offense.
c) Criminal History: A convict’s prior criminal history must be assessed to determine if they have a pattern of repeat offenses. A history of violent or serious crimes might make an individual less likely to be granted probation.
d) Rehabilitation Potential: The offender’s willingness and potential to rehabilitate play a significant role. If there’s evidence that the individual is committed to changing their behavior, participating in counseling, and addressing the underlying causes of their criminal activity, they ought to be considered for probation.
e) Compliance with Probation Terms: Convicts on probation are required to follow specific conditions, such as regular reporting to a probation officer, avoiding criminal activity, and attending counseling or rehabilitation programs. A person’s willingness and ability to comply with these terms would influence their eligibility for probation.
f) Preventing Recidivism:- Probation, as an alternative to incarceration, can indeed help prevent first-time offenders from becoming habitual or “hardened” criminals. By providing rehabilitation and support services, probation aims to address the underlying factors that contribute to criminal behaviour, giving offenders a chance to change their ways.
g) 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. h) Risk to Public Safety: The safety of the community is a crucial factor. Assessments are made to determine whether releasing an individual on probation poses a low risk of committing new offenses or harming others.
i) Reducing Overcrowding:- Probation can help alleviate the overcrowding of jails and prisons. Non-violent offenders who are eligible for probation can be kept under community supervision, freeing up space in correctional facilities for more serious offenders.
j) 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. This, in turn, can lead to them contributing as taxpayers instead of being a burden on the State.
k) Second chance and Reformation:- Probation offers a second chance to offenders by allowing them to avoid imprisonment and providing an opportunity for reformation. Through counselling, treatment, and supervision, offenders can address the root causes of their criminal behaviour and work towards positive change.
l) 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. This reduces the likelihood of recidivism and helps break the cycle of criminal behaviour.
m) 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.
n) Probation Officer Assessment: Probation officer may be asked by a court to conduct an assessment of the offender to gather information about their background, behavior, and potential for rehabilitation. Such an assessment would help take an informed decision regarding probation.
o) 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 goal of probation is to offer an alternative to incarceration that addresses the individual needs of the offender while maintaining public safety.”
As a corollary, the Bench holds in para 12 that, “Keeping the aforesaid in mind, I am thus of the view 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.”
Be it noted, the Bench notes in para 13 that, “In the premise, instant application seeking leave to appeal is hereby dismissed. Pending application(s), if any, shall also stand disposed of.”
Finally, the Bench concludes by holding in para 14 that, “Before parting with the case, it is considered appropriate to direct that a copy of this order be circulated by the Registry to all the Courts in States of Punjab, Haryana and Chandigah, so that the principles enunciated in para 11 and its sub paras above and the relevant provisions of the Probation of Offenders Act, 1958 be brought to knowledge of all the learned Judges in the district judiciary, to enable them to be keep the same in mind while passing sentencing orders in criminal cases.”
In sum, the fifteen principles laid down by the Punjab and Haryana High Court for release of convicts on probation must be emulated by all the High Courts in India as they strike the right chord and have been most meticulously prepared! It would of immensely beneficial for all the Trial Court Judges to go through this notable judgment and abide by them as laid down. No denying it!
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