As regards the applicability of provision of Section 360, Cr. P.C., the Supreme Court in Chhanni v. State of Uttar Pradesh, clarified that the intention to retain the provisions of Section 360 of the Code and the provisions of the-Probation of Offenders Act, 1958 as applicable at the same time in a given area is justified by virtue of Section 8 (1) or the General Clauses Act. Therefore, the provisions of Section 360 of Cr. P.C. are wholly inapplicable where the provisions of the Probation of Offenders Act, 1958 have been brought into force.
The section is intended to provide opportunities for reformation and rehabilitation of certain corrigible offenders instead of sentencing them to a term of imprisonment. It enables the Court to release offenders after admonition or on probation of good conduct under certain circumstances.
The object of the section is to provide the offender an opportunity to reform and rehabilitate himself as a useful and self-reliant member of society, without subjecting him to the deleterious effects of prisonization. The benefit of release on probation of good conduct is, however, denied to the hardened and incorrigible offenders who are a positive danger to society and their prolonged confinement in jail is considered to be the only best alternative for the protection of society against their criminal activities. Commenting on this, Mr. Justice Krishna Iyer rightly observed,
“In such cases kindly application of probation principle is negatived by the imperatives of social defence and the improbabilities of moral proslytisation.”
The section empowers the Court to use discretion to allow benefit of release on probation to an offender who, in his opinion, would respond favourably to this lenient treatment. The discretion is to be used keeping in view the age, character and antecedents of the offender and the circumstances in which the offence was committed.
The purpose of release on benefit of probation is to prevent the young and first offenders from being sent to prison and thus avoid their contact with the habitual and hardened criminals of the jail-
The benefit of release on probation of good conduct under this section cannot be extended to offenders who have been previously convicted or those found guilty of any offence punishable with death or imprisonment for life. Sub-section (1) empowers the Court that it may at its discretion, release an offender on probation provided the offender is a woman or a person below 21 years of age, or a male person of any age who is not guilty of an offence punishable with more than seven years imprisonment. The words, “death or imprisonment for life” used in sub-section (1) should be used disjunctively.
It must, however, be stated that an offender cannot claim to be admitted to the benefit of release on probation as a matter of right even if he fulfills the conditions set out in subsection (1) nor is first conviction alone sufficient for his release on probation.
The reason being that the discretion whether to allow the benefit of release on probation to the offender or not solely depends on the discretion of the Court which is to be exercised judicially having regard to age, character and antecedents of the offender and the circumstances under which he committed the offence.
The order of release of offender on probation of good conduct can be passed by the Court only after conviction but before awarding the sentence because in fact, it is in substitution as an alternative for the sentence.
Sub-section (3) of this section is applicable in respect of only certain specified offences under the Penal Code which are not punishable with more than two years of imprisonment and the Court has been given the discretion to release the offender after admonition instead of sentencing him to any punishment.
The offender is generally released after admonition only in case of trivial offences. Thus in case of a minor theft, the offender can be released after admonition instead of being sentenced to any imprisonment.
So also, where a bank clerk abused the Branch Manager in presence of others and threatened him with dire consequences, he was convicted under Section 353/294 I.P.C., but the High Court allowed him to be released on probation after due admonition.
The High Court of Bombay allowed the benefit of release on probation to a twenty- years old law student who was undergoing imprisonment for one year under Section 325 I.P.C. on his furnishing personal bond and surety to the effect that he would appear and serve out the sentence whenever called during such period.
The Supreme Court, in Shravan Kumar v. State of Uttar Pradesh, held that an accused convicted of offence under Section 165, I.P.C. cannot be allowed the benefit of release on probation in view of the gravity of the offence. The Court, however, reduced the sentence of imprisonment of the accused to the period already undergone considering the facts and circumstances of the case.
A person convicted under Section 323, I.P.C. may normally be allowed the benefit of release on probation of good conduct instead of being sentenced to a term of imprisonment provided his character and antecedents do not indicate criminal propensity in him.
Thus, where a boy of seventeen years was convicted under Sections 223/324, I.P.C. he was given benefit of Probation of Offenders Act, 1958 and the High Court ordered his release on probation on the ground that he was first offender and really did not intend to cause any injury to the victim.
In Ramesh Dass v. Raghunath, the accused was charged with commission of an offence under Section 326 of IPC which is punishable with imprisonment for life. Therefore the Section 360 of Cr. P.C. had no application and the case of the accused could be considered under the provisions of the Probation of Offenders Act, 1958. As such the release of accused on probation under Section 360 Cr. P.C. was not proper and the Supreme Court remitted the case back to High Court for fresh consideration.
Where the accused caused death of an innocent person by negligent driving of a scooter, he was denied the benefit of being released on probation under Section 360 or under the Probation of Offenders Act, 1958 by the High Court of Punjab and Haryana.
Where the accused was convicted under Section 325, I.P.C. for causing grievous hurt to his superior officer on the ill-conceived thinking that he was instrumental in getting him transferred elsewhere, the High Court refused to grant him benefit of Section 360 of Cr.P.C. or Sections 3 and 4 of the Probation of Offenders Act, 1958.
Under sub-section (5), the High Court or the Court of Session has the power to set aside the order of probation passed by the Magistrate and pass sentence in lieu thereof exercising its appellate or revisional jurisdiction.
The period during which the offender can be bound over to keep good behaviour cannot exceed three years under this section and the person so released on probation is liable to be called upon to appear in Court to receive sentence if he commits any breach of condition relating to his release on probation.
Sub-section (6) makes a reference of Sections 121, 124 and 373 of the Code. These sections respectively deal with power to reject sureties, security for unexpired period of bond, and appeal from order requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour.
Even a revisional Court may order the release of the offender on probation of good conduct which was denied to him by the trial Court. The benefit of probation can be denied only if there are valid reasons for doing so.