Probation of Offenders Act
1958
Theories of Punishment
Introduction
• Jugal Kishore Prasad v. State of Bihar (1973 SC)
Objective of Probation of Offenders Act - The obdurate offender should
be separated from youthful offender.
• Sec 401 BNSS – Admonition & Probation
(Sec 360 CrPC)
Objectives of Probation
• Rehabilitation over Punishment
To reform first-time and minor offenders by providing them an opportunity to correct their behavior without undergoing the stigma of imprisonment.
• Individualized Treatment
To allow courts to consider the age, character, antecedents, and circumstances of the offender before awarding punishment.
• Avoidance of Jail Environment
To save young and minor offenders from the evil influence of hardened criminals in prisons.
• Opportunity for Reform
To provide offenders a chance to prove their good conduct by releasing them on probation, supervision, or after admonition.
• Restorative Justice
• To shift from retribution to restorative methods, where the focus is on integrating the offender back into society as a law-abiding citizen.
• Reduction of Recidivism
• By focusing on guidance, counseling, and supervision, the Act seeks to prevent repeat offences.
• Humanitarian Objective
• To recognize that imprisonment is not always the best remedy and that compassion, coupled with supervision, can help in achieving social
harmony.
S. 401 – Release on Probation or After
Admonition (old s. 360 CrPC)
(1) Release on Probation of Good Conduct
• Applies when:
Adults (21 years or above): convicted of an offence punishable with fine only or
imprisonment up to 7 years.
Persons below 21 years or women: convicted of an offence not punishable with
death or life imprisonment.
Condition: No prior conviction is proved.
• If court finds it expedient considering age, character, antecedents, and circumstances, it
may release the offender on bond/bail bond (max. 3 years) to:
Keep peace,
Be of good behavior,
Appear when called for sentence.
• If a 2nd class Magistrate (not specially empowered) wishes to use this power, he must
forward the case to a 1st class Magistrate for final decision.
(2) Powers of Magistrate of First Class
• Can pass the order or sentence as if the case was originally before him.
• Can also order further inquiry or evidence if needed.
(3) Release After Admonition
• For offences like theft, theft in a building, dishonest misappropriation, cheating, or any BNS
offence punishable with ≤ 2 years
• imprisonment or fine only.
• If no prior conviction exists and court considers:
Age, character, antecedents,
Physical/mental condition,
Trivial nature of offence,
Extenuating circumstances
Offender may be released after due admonition (warning instead of punishment).
(4) Appellate or Revisional Courts’ Powers
• Appellate Court, High Court, or Sessions Court can also pass such an order.
(5) Setting Aside Orders
• High Court or Sessions Court can set aside probation order and impose lawful sentence.
• But cannot impose punishment greater than the trial court could have imposed.
(6) Applicability of Bond Provisions
• Sections 140, 143, 414 BNSS (regarding sureties) apply to sureties under this section.
(7) Pre-condition for Release
Court must be satisfied that offender or surety has:
Fixed place of residence, or
Regular occupation in the jurisdiction.
(8) & (9) Violation of Conditions
• If offender violates conditions of bond/recognizance:
Court may issue warrant for arrest.
On being produced, court may:
• Remand in custody, or
• Release on bail with surety.
After hearing, court may pass sentence.
(10) Saving Clause
This section does not affect special laws:
Probation of Offenders Act, 1958
Juvenile Justice (Care and Protection of Children) Act, 2015
Any other law dealing with treatment, training, or rehabilitation of youthful offenders.
Probation of Offenders Act 1958
• Act no. 20 of 1958.
• Assent date – 16 May 1958
• Enforcement date different for different states
• Total sections - 19
Section 1 – Application of the Act
• Applies to whole of India
• Shall come into force as SG applies
Section 18 – Saving Clause
• The Act will not override or interfere with the following:
Reformatory Schools Act, 1897
• This law provides for sending youthful offenders (below 15 years) to
reformatory schools instead of prison.
• Section 18 ensures that the Probation of Offenders Act does not disturb or
cancel this provision.
Prevention of Corruption Act, 1947
• This provision prescribes minimum punishments for corruption offences by
public servants.
• Section 18 makes it clear that persons convicted under corruption laws
cannot claim the benefit of probation to avoid mandatory punishment.
State laws on Juvenile Offenders and Borstal Schools
• Many States had their own laws for dealing with juvenile offenders or
providing for Borstal institutions (special correctional institutions for young
offenders).
• Section 18 safeguards these State provisions and clarifies that they will
continue to operate unaffected.
Purpose of Section 18
• To avoid conflict between central and state legislations.
• To make sure that serious offences (like corruption) and juvenile
justice laws are dealt with under their special statutes, not under the
Probation of Offenders Act.
• To ensure that probation is not misused in cases where society
demands stricter treatment.
Section 19 – s.360 of the code shall cease to apply to the states or
parts thereof in which this Act is brought into force.
Definitions – Probation of Offenders Act,
1958 (Section 2)
Term Statutory Meaning
“Code” means the Code of Criminal Procedure,
Code
1898 (5 of 1898).
Officer appointed under Section 13 of this
Probation Officer
Act.
Prescribed Prescribed by rules made under this Act.
Powers of Court
Section 4 – Release
Section 3 – Power
of offender on
of admonition
good conduct
Section 5 –
Offender to pay
compensation
Section 3 – Power of admonition
Overview Provision under Section 3
Sec. 379 (Theft), Sec. 380 (Theft in
dwelling), Sec. 381 (Theft by clerk/servant),
Eligible Offences (IPC)
Sec. 404 (Misappropriation of property by
deceased’s possessor), Sec. 420 (Cheating).
Any offence punishable with ≤ 2 years’
Other Offences imprisonment, or fine, or both (IPC or any
other law).
No previous conviction proved against
Requirement
offender.
Nature of offence, character of offender,
Court’s Consideration
circumstances of case.
May release offender after due admonition
Power of Court instead of sentencing or granting probation
under Sec. 4.
“Previous conviction” includes prior orders
Explanation
under Sec. 3 or Sec. 4.
Section 4 – Release of offender on good conduct
Sub-section Provision Purpose / Effect
Court may release offender (not liable for
Sec. 4(1) death/life imprisonment) on bond (≤ 3 Offers reform instead of punishment.
years), to keep peace & good behaviour.
Offender must have fixed abode or regular
Proviso (to Sec. 4(1)) Ensures accountability & traceability.
occupation within jurisdiction.
Court must consider Probation Officer’s
Sec. 4(2) Professional input ensures fair decision.
report (if available).
Court may pass supervision order, placing
Sec. 4(3) offender under Probation Officer for ≥ 1 Provides structured rehabilitation.
year, with conditions.
Offender must enter bond to observe
Prevents relapse into crime; ensures
Sec. 4(4) supervision & additional conditions
discipline.
(residence, abstinence, etc.).
Court shall explain supervision order &
Sec. 4(5) furnish copies to offender, sureties, and Transparency & clarity of obligations.
Probation Officer.
Bond requirement:
• Offender may be released on entering into a bond (with/without
sureties),
• To appear and receive sentence when called upon,
• To maintain peace and good behaviour.
Section 5 – Compensation and Costs
Sub-section Provision Purpose / Effect
Court releasing offender
Ensures victim is not
under Sec. 3 or 4 may order
ignored; offender bears
Sec. 5(1) him to pay compensation
responsibility even if not
(to victim) and costs of
jailed.
proceedings.
Amount recoverable as fine, Provides mechanism for
Sec. 5(2) using provisions of CrPC enforcement like a monetary
(now BNSS). penalty.
Civil court deciding
Prevents double recovery
damages must deduct
Sec. 5(3) by victim; maintains
compensation already
fairness.
paid under Sec. 5.
Section 6 – Restrictions on Imprisonment of
Offenders under Twenty-One Years of Age
(1) General Rule
• Applies to any person below 21 years found guilty of an offence punishable with
imprisonment (except life imprisonment).
• Court shall not sentence him to imprisonment unless:
Having regard to nature of offence,
Character of offender,
Circumstances of the case,
It is undesirable to release under Section 3 or 4.
(2) Mandatory Report
• Before deciding, court must:
Call for a report from the Probation Officer, and
Consider the report + other information (character, physical and mental condition).
Section 7 – Confidentiality of Probation
Officer’s Report
Provision Meaning Purpose / Effect
Ensures sensitive information
Report of Probation Officer
(social background, family
Confidential Nature under Sec. 4(2) or Sec. 6(2)
details, behaviour patterns) is
must be treated as confidential.
protected.
Maintains fairness – prevents
Court may share the substance
Court’s Discretion decisions being based on
of the report with the offender.
unknown material.
Offender may be given an
Upholds principles of natural
Right to Rebuttal opportunity to produce evidence
justice.
against statements in the report.
Section 8 – Variation of Probation Conditions
Sub-section Provision Purpose / Effect
Court may vary probation bond →
Allows flexibility to match
extend/reduce period (≤ 3 years
Sec. 8(1) probation terms with offender’s
from original order), alter or add
progress or risks.
conditions.
Variation only after hearing Ensures fairness and natural
Proviso to Sec. 8(1)
offender and sureties. justice.
If surety refuses to consent -
Court may require fresh bond; if Prevents offenders from escaping
Sec. 8(2) offender refuses/fails → Court accountability; keeps sureties
may sentence him for original voluntary.
offence.
If conduct of offender shows
supervision unnecessary - Court Rewards good behaviour;
Sec. 8(3)
may discharge bond early, on promotes reintegration.
application of Probation Officer.
Section 9 – Breach of Probation Bond
Stage Provision Court’s Power / Action
If court has reason to believe (on report of probation officer or
otherwise) that the offender has violated bond conditions → Court
1. When breach is suspected Section 9(1)
may: • Issue warrant of arrest, OR
• Issue summons to offender & sureties to appear.
Court may: • Remand offender to custody, OR
2. Pending inquiry Section 9(2)
• Grant bail (with or without surety) till hearing date.
Court has two options: (a) Sentence offender for the original
3. After inquiry (Court satisfied breach
Section 9(3) offence, OR (b) If first breach only → continue bond + impose
occurred)
penalty up to ₹50.
If penalty under (3)(b) is not paid within time fixed → Court may
4. If penalty not paid Section 9(4)
sentence offender for original offence.
Section 11 – Courts Competent, Appeal &
Revision
Sub-section Provision
Any court empowered to try & sentence the offender, and also the High Court or
11(1) – Competent Courts any other court when case comes in appeal or revision, may pass an order
under the Act.
Where a trial court (other than High Court) passes an order under Section 3
11(2) – Appeal (release after admonition) or Section 4 (release on probation), an appeal lies to
the court where appeals from its sentences ordinarily lie.
If a person below 21 years is convicted and trial court refuses probation (Sec. 3
11(3) – Special power for <21 or 4) and instead gives imprisonment (with/without fine), and no appeal lies or is
years preferred → the appellate court may, on its own or on application (by offender
or probation officer), examine the record and pass suitable orders.
If an offender is released under Section 3 or 4, the Appellate Court or High
11(4) – Powers of higher Court in revision may set aside the probation order and pass a sentence
courts according to law. Proviso: Punishment cannot exceed what the trial court could
have given.
Section 12 – Removal of disqualification
attaching to conviction
• If a person is found guilty of an offence and is dealt with under
Section 3 (release after admonition) or Section 4 (release on
probation of good conduct), then he shall not suffer any
disqualification that would normally attach to a conviction under
any law.
• Proviso: If later the person is sentenced for the same offence
(because probation failed), then this protection does not apply.
• Purpose - To encourage rehabilitation by preventing social &
professional stigma.
Who is a Probation Officer ?
Sec 13
• A Probation Officer is a trained social worker/official appointed under
the Probation of Offenders Act, 1958 by the State Government.
• Person sent by a recognized social organization.
• Any person the Court thinks fit in special situations.
• They are the public servant within the meaning of s.21 of IPC. [Sec 15]
• No suit/action against them or State Govt for action taken in good
faith. [Sec 16]
Duties of probation officer
Clause Duty Explanation
On court’s direction, inquire into the character, family
background, home surroundings, and circumstances of the
(a) Inquiry into circumstances
accused. Submit a pre-sentence report to help court decide
whether probation is suitable.
Supervise probationers and other persons placed under his
(b) Supervision & Employment supervision. Where necessary, help them find suitable
employment to aid rehabilitation.
Advise and assist offenders in paying compensation or costs
(c) Assist in payments
ordered by the court, ensuring compliance with court orders.
Provide continuous guidance, counseling, and assistance to
Advise & Assist
(d) offenders released under Section 4 (release on probation of good
probationers
conduct).
Perform any additional duties as may be prescribed by rules
(e) Other prescribed duties (flexible clause to expand role as required by law or state
government).
Section 17 Power to make rules
Sub-secti
Provision
on
The State Government may, with prior approval of the Central Government, make rules via
17(1)
notification in the Official Gazette.
17(2) Rules may cover specific matters (without limiting general power). These include:
(a) Appointment, service conditions, and jurisdiction of Probation Officers.
(b) Duties of Probation Officers and submission of reports.
(c) Recognition of societies under Section 13(1)(b).
(d) Payment of remuneration/expenses to Probation Officers or subsidies to recognized societies.
(e) Any other prescribed matter.
17(3) Rules must undergo previous publication and be laid before the State Legislature.
Section 562 of the Code not to apply in
certain areas
• Once the Probation of Offenders Act, 1958 comes into force in a State
(or part of it), Section 562 of the Code of Criminal Procedure, 1898
will no longer apply there.
• This is subject to Section 18, meaning laws saved under Section 18
(e.g., Reformatory Schools Act, Prevention of Corruption Act, Borstal
laws) remain unaffected.
Case Laws on Admonition
• Keshav Sitaram Sali v. State of Maharashtra (AIR 1983 SC 291)
It highlighted the importance of leniency for minor offenses. The appellant, a railway employee, was
charged with aiding in theft but was acquitted. The High Court overturned the acquittal and imposed a
fine. The Supreme Court held that minor offenders should be given the benefit of probation instead of
being subjected to strict punishment.
• Basikesan v. State of Orissa (AIR 1967 Ori 4)
IA 20-year-old was convicted under Section 380 of the IPC. The court held that the offense was not
committed with malicious intent and granted the benefit of admonition under Section 3 of the Act.
This judgement highlighted that courts should consider the offender’s age and intention when
granting probation.
• Ahmed v. State of Rajasthan (AIR 1967 Raj 190)
The Rajasthan High Court ruled that probation cannot be extended to those who commit crimes that
result in communal tension or public disorder.
Case Laws on Probation of Good Conduct
• Smt. Devki v. State of Haryana (AIR 1979 SC 1948)
It was ruled that probation should not be extended to individuals guilty of
heinous crimes such as the abduction of minors for commercial purposes.
The judgement reinforced that probation is not a right but a privilege granted
in deserving cases.
• Dalbir Singh v. State of Haryana (AIR 2000 SC 1677)
The probation should be granted only after careful consideration of the
offense’s gravity and the offender’s background. This judgement reinforced
that courts must strike a balance between societal interests and the
offender’s reformation.
• Phul Singh v. State of Haryana (AIR 1980 SC 249)
In a case involving rape by a young offender, the Supreme Court ruled
that probation should not be misused to grant leniency in severe crimes.
The judgement in Phul Singh v. State of Haryana set a precedent that
crimes involving moral turpitude should not qualify for probation.
• Ramesh v. State of Rajasthan (2025 SC)
The Supreme Court invoked its inherent power u/A 142 of the
Constitution to extend the benefit of the Probation of Offenders Act to
an accused of 70 years in line with the benefit granted to another
accused in a cross case (Clashes between two groups of family).
Difference between s.401 BNSS & Probation of
Offenders Act
Aspect Section 401 BNSS, 2023 Probation of Offenders Act, 1958
General provision in a procedural law (BNSS, i.e.,
Nature A special legislation exclusively dealing with probation.
criminal procedure).
Limited – applies only to certain offenders: •
Broader and more comprehensive – applies to all offenders
First-time offenders, • Offenders under 21 years, •
Scope except those convicted of serious offences (like life
Conviction with imprisonment < 7 years, • Women
imprisonment, death penalty, corruption cases).
offenders.
Does not create a separate supervisory machinery. Provides for Probation Officers (Sec. 13–14) who supervise
Supervision Courts may require sureties, but no professional offenders, counsel them, submit reports to court, and aid in
follow-up. rehabilitation.
No specific protection – conviction may still lead to
Disqualification on Section 12 removes disqualifications attaching to conviction
legal disqualifications (e.g., loss of government job
conviction if offender is released under probation/admonition.
eligibility).
Section 17 gives State Governments (with Central approval)
Rule-making Power No independent rule-making; part of BNSS.
power to frame detailed rules.
Default provision of BNSS unless the State has Where the Act is in force, Section 401 BNSS does not apply
Applicability
enforced the Probation of Offenders Act. (similar to Section 19 of PO Act).
Establishes a comprehensive reformative justice system with
Provides a basic reformative alternative within
Objective emphasis on rehabilitation, supervision, and social
criminal procedure.
reintegration.
Problems of Probation in India
Problem Area Issues / Challenges
Although the Probation of Offenders Act, 1958 is in force, its use is limited
1. Implementation Gaps
– many judges still prefer imprisonment over probation.
Both offenders and society often view probation as “leniency” rather than
2. Lack of Awareness
a constructive reformative measure.
Shortage of trained probation officers → high workload, limited
3. Inadequate Probation Officers
supervision, ineffective counseling.
Probation officers often lack proper training in psychology, criminology, or
4. Poor Training & Resources
social work; minimal financial resources.
Even if legal disqualifications are removed (Sec. 12), offenders face social
5. Social Stigma
rejection, making reintegration difficult.
Some States apply probation provisions actively, while others neglect
6. Uneven Application
them - lack of uniformity.
Minimal rehabilitation schemes like vocational training, community
7. Lack of Aftercare Services
support, or halfway homes.
Many judges prefer retributive punishment due to fear of recidivism,
8. Judicial Reluctance
especially in serious offences.
Prospects of Probation
Prospect Area Opportunities / Positive Directions
1. Reformative Justice Modern criminal law focuses on rehabilitation over retribution,
Trend making probation more relevant.
Juvenile Justice Act, 2015 uses probation-like measures successfully
2. Juvenile Justice Model
→ can be expanded to adult offenders.
3. Reducing Overcrowding Probation can reduce prison overcrowding and associated costs.
Probation aligns with restorative justice by focusing on reform,
4. Restorative Justice
reconciliation, and reintegration.
5. Role of NGOs & Involving voluntary organizations, social workers, and
Community community service can strengthen probation.
Use of digital monitoring, periodic reporting apps, and online
6. Technology Support
counseling can improve supervision.
UN and other international bodies encourage alternatives to
7. International Support imprisonment → probation aligns with global standards (UN Tokyo
Rules, UNCRC, etc.).
With new BNSS 2023 and criminal reforms, more emphasis may be
8. Policy Reforms
placed on probation as a correctional tool.
