AMITY UNIVERSITY RAJASTHAN

PROBATION AND PAROLE ASSIGNMENT

COURT COMEPETEND TO MAKE ORDER OF APPEAL AND RIVISION AND POWERS OF

COURTS IN APPEAL AND RIVISION SEC. 11 OF PROBATION AND OFFENDERS ACT, 1958
INTODUCTION

The Probation Services in India are being regulated by Probation of Offenders Act (1958) and Section 360 of
Code of Criminal Procedure Cr. Pc 1973 which allows release of the offender on probation on fulfilling
certain conditions in lieu of his/her stay in prison on conviction.
The Section 562 of the Cr. Pc (1898) was the earliest provision which dealt with probation. However, after
the amendment in 1974 it became the Section 360 which states:
When any person not under twenty-one years of age is convicted of an offence punishable with fine only
or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age
or any woman is convicted of an offence not punishable with death or imprisonment for life, and no
previous conviction is proved against the offender, if it appears to the Court before which he is convicted,
regard being had to the age, character or antecedents of the offender, and to the circumstances in which
the offence was committed, that it is expedient that the offender should be released on probation of good
conduct, 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.
However, under the Section 360 of the Cr. Pc benefits of probation can only be given to the first- time
offenders while the Section 4 of the Probation of Offenders Act allows the benefits for probation to repeat
and petty offenders as well.

DEFINITION
The release of offenders on probation is a treatment device prescribed by the court for persons convicted
of offences against the law, during which the probationer lives in the community and regulates his own life
under conditions imposed by the court or other constituted authority, and is subject to the supervision by
the probation officer.
The term probation is derived from the Latin word “probare” this means “to test” or “to prove”.
Etymologically, probation means “I prove my worth”. Probation is often misconceived by some people as
an easy let off or a form of leniency and not a punishment.

COURT COMEPETEND TO MAKE ORDER OF APPEAL AND RIVISION AND POWERS OF COURTS IN APPEAL
AND RIVISION
Sec 11 of Probation and offenders act, 1958 defines Courts competent to make order under the Act, appeal
and revision and powers of courts in appeal and revision—
(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be
made by any court empowered to try and sentence the offender to imprisonment and also by the High
Court or any other court when the case comes before it on appeal or in revision.
(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made
by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals
ordinarily lie from the sentences of the former court.
(3) In any case where any person under twenty-one years of age is found guilty of having committed an
offence and the court by which he is found guilty declines to deal with him under section 3 or section 4,
and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is
preferred, then, notwithstanding anything contained in the Code or any other law, the court to which
appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an
application made to it by the convicted person or the probation officer, call for and examine the record of
the case and pass such order thereon as it thinks fit.
(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate
Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof
pass sentence on such offender according to law:
Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than
might have been inflicted by the court by which the offender was found guilty.

COURT COMPETENT TO MAKE ORDER

COMPETENT
Possessing the necessary reasoning abilities or legal qualifications; qualified; capable; sufficient.
A court is competent if it has been given jurisdiction, by statute or by constitution, to hear particular types
of lawsuits.
APPEAL AND RIVISION
APPEAL:
The term appeal is an undefined term, it means the removal of a cause from an inferior court to a superior
one for the purpose of testing the soundness of the decision of the inferior court. In other words, it is a
complaint made to a superior court against the decision of a subordinate court with the object of getting
such order set-aside or reversed. Appeal is the continuation of the original proceedings before a superior
court.
As an appeal is a continuation of the suit only such persons who were the parties to the suit and who are
adversely affected by the decree may appeal. A person who was not a party to the suit cannot appeal the
decree, unless such person is adversely affected, and is permitted by the appellate court to file an appeal.
REVISION:
Revision means re-examination of cases which involve the legal assumption, non- exercise or irregular
exercise of jurisdiction.
Revisional jurisdiction does not confer any substantive right, and the right of revision is merely a privilege
granted to a party. In revision the court can interfere, if the case bought before it is a decided case by
subordinate court, and when the same is not appealable. If this condition is fulfilled, the revisional court
may interfere to check, where the subordinate court powers of revisional authority may or may not leave,
it have no power to review the evidence unless the statute expressly confers on it that power.

DIFFERENCES
APPEAL: Appeal is a process of re-examination of the judgement and decree, or order or the decisions
passed by the original court is a suit or in a case. The expression “appeal” has not been defined, but it may
be defined as the “judicial examination of the decision by a higher court of the decision of an inferior
court”.
REVISION: Revision is re-working and re-writing. Revision, meaning “to see again,” takes place during the
entire writing process as we change words, rewrite sentences, and shift paragraphs from one location to
another in our essay. Revision means the action pf revising, especially critical or careful examination with a
view to correcting or improving.
The distinction between the appeal and revision in the following:
1. An appeal lies to a superior court, which may not necessary be a high court, while a revision
application under the code lies to the high court.
2. An appeal lies only from the decrees and appealable order, but a revision application lies from any
decision of a court subordinate to the high court from which no appeal lies to the high court or to
any subordinate court.
3. A right of appeal is a substantive right conferred by the statute, while the revisional power of the
high court is purely discretionary.
4. The grounds for an appeal revision application are also different. An appeal lies on a question of
fact or law or of fact and law, while revision application lies only on the ground of jurisdictional
error.
5. In case of appeal the memorandum of appeal must be filled before the appellate court by the
aggrieved party, but filling of an application is not necessary in case revision.

The provisions relating to appeals and revision against the order of probation passed by the Court under
Section 3 or 4 of the Probation of Offenders Act, 1958 are contained in Section 11 of the Act. The
provisions as to appeal and revision contained in this section are comprehensive and empower the
appellate Court or the High Court in exercise of its power of revision to set aside the order and in lieu
thereof pass sentence on such offender according to law.

The plea of applicability of the provisions of the Act can be taken up for the first time in appeal or revision
as held by Hon'ble Supreme Court in Sudesh Kumar Vs. State of Uttarkhand AIR 2008 SC 1120 as the
provisions are benevolent in nature, no technical objection should be raised that such plea was not taken
before the courts below but to entertain such plea there must be credible and trustworthy evidence in
support of it.

However, the appellate Court or the High Court, as the case may be, in its revision shall not inflict a greater
punishment than the one inflicted by the Court by which the offender was found guilty.

The Supreme Court in Satyabhan Kishore and another v. State of Bihar, has ruled that it can apply Section
6 suo- motu or may direct the High Court to do so in case of an offender who is under the age of 21 years
and found guilty of haying committed an offence and the Court below having declined to deal with him
under the Probation of Offenders Act, passes any sentence of imprisonment with or without fine for which
no appeal has been preferred.

The provisions of this section (i.e., Section 11) are to be beneficially construed as held by the Supreme
Court in Ramji Missar’s case. The Court, inter-alia observed:

“Section 11 of the Probation of Offenders Act, 1958, is to be given wider interpretation because it is a
beneficial statute. So, the Courts mentioned in Section 11, be they trial courts or Courts exercising
appellate or revisional jurisdiction, are thereby empowered to exercise the jurisdiction conferred on Courts
not only under Sections 3 and 4 and the consequential provisions but also under Section 6 of the Act.”
It must be noted that the appeal contemplated by Section 11 (2) of the Act refers to an appeal against the
propriety of the probation order passed by the trial Court under Section 3 or Section 4 of the Act, and not
an appeal against substantial acquittal or conviction of the offender. The right to appeal conferred under
sub-section (2) extends not only to the accused but also to the prosecution. This contention finds support
in the case of Nangthombam Kanhai v. Rajkumar Singh wherein the High Court observed that subsection
(2) of Section 11 of the Probation of Offenders Act, 1958 makes it clear that it is not the convicted person
alone who could file an appeal where probation order is improperly made under Section 3 or Section 4 by
the Court but the prosecution can also prefer an appeal to the appellate Court.

Similar view has been expressed by the High Court of Patna in Baidyanath Prasad v. Avadesh Singh
wherein the Court held that since the language of sub-section (2) is comprehensive, flexible and
unrestricted as to the person who can prefer an appeal against an improper probation order made by the
trial Court, there is no justification for conferring right of appeal only to the convicted person or to the
State when State is conducting prosecution. Therefore, the right to appeal under this sub-section also
extends to the complainant.

In the instant case the complainant had appealed against the order of the trial Magistrate who had
accepted the report of the Probation Officer stating that the accused belonged to respectable families and
there was no previous conviction against them, and ordered release of accused under Section 3 of the Act
after giving them due admonition.

The appeal preferred by the complainant under Section 11 (2) was dismissed by the Additional Sessions
Judge, Monghyr on the ground that no appeal could be made in a case under Section 380. I.P.C. and as the
prosecution in this case was conducted by the State hence a private party had no locus standi to prefer an
appeal against an order passed under Section 3 of the Probation of Offenders Act.

The complainant, thereafter filed a revision petition to the High Court challenging the correctness of the
view expressed by the Additional Sessions Judge. Dismissing the appeal, the High Court upheld the order of
probation passed by the trial Magistrate as the accused were charged of pilfering a petty sum of Rs. 100/-
from the cash box and there being no previous conviction against them, there was sufficient valid reason to
sustain order of admonition under Section 3 of the Act. But the Court clarified that the appeal was being
dismissed on merits and not because it was filed by complainant instead of the prosecution or the accused.