As we know, there are different types of punishment theories used to punish the offenders. But “RETRIBUTIVE THEORY” is a famous one during ancient times. Retributive Theory is a type of theory in which the offenders are treated in the same way as victims. For example, A convicted of throwing acid into the face of B, which results in blinding her. according to retributive theory, A should be blinded for his punishment. But in modern time there is a new theory comes forward “REFORMATIVE THEORY” according to this theory crime should be finished not the criminals. This theory follows a principle of reforms. One should get a chance to reform himself into a good human being. PROBATION is based on this theory.
Once said by Mahatma Gandhi, HATE THE CRIME, NOT THE CRIMINALS. Why? Because a person is not a born criminal, due to the influences or behavior of the society with any type of discrimination like poverty, insanity, lower costs, etc. a mind of a person affected on a very serious note, and due to these circumstances arises where a person becomes a criminal for revenge or say to fit in society. Hence, we need to hate the crime or remove the crime from society, not a criminal.
LAWS WHICH GOVERN PROBATION IN INDIA
1. CRIMINAL PROCEDURE CODE, 1973
Before amendment section 562 of criminal procedure code, 1898 deals with probation but after amendment section 360 of Cr.P.C., 1973. It is defined that, “when a person under the age 21 years is convicted for an offense punishable with fine or with imprisonment for a term of 7 years or less or women or a person under the age of 21 years not punishable with death or imprisonment for life and they have not been convicted before then the offender should be released on probation for good conduct with entering in a probation bond which includes rules to obey with or without sureties. any person who convicted for theft, theft in a building, or an offense punishable with not more than 2 years imprisonment or any offense with a fine only” can be released on probation. Or if the court thinks fit, has insanity or unsoundness or any other reason feels to release the offender on probation. Under section 361 of Cr.P.C.,1973 it is mandatory for a judge to record a reason for not giving probation to an offender under section 360 of Cr.P.C.
2. PROBATION OF OFFENDERS ACT, 1958
Under section 13 of this act probation officer appointed by the state government or any exceptional case, any other person with the opinion of the court is fit to act as a probation officer. Section 6 of the probation of offenders act, 1958 the judge has to give a reason as to why probation is not granted to the offender below the age of 21 years.
If a offender released on probation under the supervision of a probation officer with some rules which he has to follow if not, the probation officer reports the same to the court, and a warrant has been issued against the offender to convict him.
ESSENTIALS OF GRANTING PROBATION:
1) While granting probation court should keep in mind that the offender is not a habitual offender. Habitual offenders are those who have a habit to commit a crime or who have a conviction history, they don’t get probation.
2) While granting probation court should know the nature of the offense. If the offense is of such nature that its punishment is more than 7 years or say a capital punishment or imprisonment for life, then the court will not grant probation to the offender.
3) While granting probation character of the offender also considered an essential point. If the character of the offender is bad in the society that he is of aggressive nature, violent, abusive then the court will not grant probation to such offender.
4) While granting probation circumstances of the case is also an essential view. It is non-avoidable to know in which circumstances the offender commits the crime. Suppose the offender commits theft for his need or necessity then he can be released on probation but on the other hand, he robbed a bank then it is not considered under necessity he will not get probation.
CONDITIONS OF PROBATION
There is a time scheduled for an offender who released on probation, on which he has to meet the probation officer on the violation of which the probation can be canceled. Submitting to random drug testing if he/she using any kind of drugs or intoxicated materials the probation can be canceled and a conviction order can be issued against the offender. The offender has to avoid places on which generally criminals present.
TYPES OF PROBATION
Firstly, supervised probation is probation in which the offender is supervised by a probationer officer on the regular basis. Secondly, unsupervised probation is probation under which the offender is free from direct supervision of the probation officer but the offender should obey the probation bond/rules.
Thirdly, community control probation is a type of probation under which if an offender wants to go outside for school, meeting, etc. is allowed with a tracking device wraped on the offender’s ankle to trach the offender.
You may have heard this word before so many times from someone that “I am out on parole” or “he is on parole” but you may don’t know what exactly parole is. Parole is a temporary release of prisoners who agree to follow some conditions, it is a kind of option for prisoners based on good behavior.
Parole is also a reformative theory which gives chance to prisoners to reform themselves into a good person. Parole is effective for prisoners because after getting parole they think positively about the law system and try to reform themselves for more opportunities to get out of jail. Sometimes prisoners after getting parole and watch the condition of their family think positive and keep in mind not to do any time of offense gain.
Parole is originated from the French word “Je donna ma parole” which means I give my word. In the previous time, there was a concept of the release of a person from a person who promises to return after a fixed time. It is a kind of parole. A parolee is a person released on parole.
The main objective of parole is to decrease the burden on prisons, there are so many prisoners in jail that it becomes difficult for officials to manage them. There is a ticket of leave concept which gives freedoms to the good prisoner. After that, there is a point when the court thinks that there must be a parole system in the justice system like if there is a prisoner with good behavior in the jail then he can be released on parole which can be beneficial for the prisoners to make their good image in the society. It is a type of reward for them to correct themselves.
Parole is used as a correctional process. There is no hard and fast rule in India to grant parole it is totally an administrative action. It also results in no. of prisoners in jail because due to this reward most of the prisoners try to reform them into useful persons for society or to develop their value or image in the society. There are no. theories that support the concept of parole like grace, contract, custody, exhausted rights theories.
KINDS OF PAROLE:
I. CUSTODY PAROLE
Custody parole is generally granted for a specific period and in specific circumstances which is very important for prisoners to make contact with their families or society. As you can see in the name of this parole it is a kind of custody where a prisoner be released for some time and after the completion of what prisoner bring back to prison by a police officer. There are some circumstances where custody parole granted.:
a) If there is a death of any of the family members of the prisoner and he is in prison then he shall be released on custody parole. Suppose the prisoner is the only child of the dead person then the prisoner will be released on parole for some time. As we know it is a right of a dead person to get a peaceful buriel hence, it is an important role of custody parole to do so. It is not important that if he/she the only child then he/she gets parole it is the right of a prisoner to get parole if there is a death of their family member.
b) Marriage or family member, if there is a marriage in the family of the prisoner and their presence is important then the prisoner can be released on parole.
c) Serious illness of family member, if there is someone in the family of prisoner seriously ill and there is no one except prisoner to take care of them then the offender can be released on parole.
d) Any other situation where the presence of a prisoner is important or necessary.
Under custody parole, a prisoner is surrounded by police officers for the parole period, and when the period over the prisoner sent back to the prison by a police officer.
II. REGULAR PAROLE
Regular parole is parole under which a prisoner released on parole on the basis of terms and conditions prescribed. A parolee has to follow the rules prescribed accordingly on the violation of which can result in cancel of parole and further conviction.
There are no police officers with parolees under regular parole like custody parole. Prisoners released on trust that they will follow the guidelines or rules accordingly. It is at the discretion of the authority to grant this type of parole on good behavior. There are some grounds on which regular parole granted:-
a. Serious illness of a family member of the prisoner.
b. Marriage of any family member of the prisoner then he can get regular parole.
c. Delivery of the child of a wife of a prisoner and there is no one to take care of her then he can be released on regular parole.
d. Serious damage to the family or property of the offender or of a family member then he can be released on regular parole.
There are some rules defined for parolee like, if a prisoner released on regular parole, parolee can not marry someone, parolee can not go to bar or clubs for enjoyment because drugs and intoxication items can not be used by a parolee, parolee can not go outside after sunset and parolee is not allowed to leave the state or the city or country without prior permission.
DIFFERENCE BETWEEN PAROLE AND PROBATION. Probation is granted to an offender before the court decides the quantum of the sentence. Or in other words, probation is granted to an offender when he/she is not convicted.
Whereas, parole is granted when an offender is already in the prison.
B. Parole can be temporary or permanent.
Probation is permanent until the offender does something against the probation bond
C. Probation is a suspension of sentence of an offender to give them a chance to live in society and reform them into useful person Parole is a release of a prisoner before the expiry of sentence to serve a better time in society.
D. Probation is another way of jail because the offender is released but under the supervision of a probation officer. Parole is a type of conditional release from prison because once the period over prisoners needs to come back to prison.
E. Probation is granted by the court; Parole is granted by a parole board.
Hence, probation and parole both are important for our law system to reform prisoners and offenders into useful persons or to make/develop a better country.
Author: HITAKSHI MAGGO, FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY