TRANSFER OF PROPERTY

ASSIGNMENT 3

SUBMITTED TO:Ms JYOTI

SUBMITTED BY:HARSIMRAN KAUR
BCOM LLB, 6TH SEMESTER
 HISTORY AND ORIGIN OF PROBATION OF
OFFENERS ACT
Probation and parole emerged as techniques to initiate consequence of
severe punishment when imprisonment became the more common mode
of penal sanction in place of transportation and capital punishment .
The origins of what is today known as “probation” can be traced to early
English practices, and experienced a gradual development until the19th
century. During the 1880s, significant contributions were made byseveral
other countries. In the1870s, it began to receive acceptance in the USA.
However, essentially it developed from the beginning of the twentieth
century, although for various reasons and in varying degrees -throughout
Europe and North America. Probation has its origins in two distinct
traditions, common and civil law, but its historical development was also
influenced by the development of the juvenile justice system ,“positivism”
in criminology and ideologies of control outside of the criminal justice
system.
 PROBATION SYSTEM IN INDIA
The Indian probation law provides the judicial power should be solely
vested in the judiciary. The reason being that if the power of probation is
delegated to extra-judicial agencies which lack judicial techniques, it
would create serious problems as these agencies will be guided by their
own value considerations. That apart, sociologists and psychologists
would be concerned only with the problem of offender's reformation and
would not be able to appreciate the legal implications of reformative
measures. Thus, entrusting, probation service to social agencies will mean
delegating judicial functions to non judicial bodies which is against the
accepted norms of justice. Even assuming that probation is highly skilled
technique which needs to e handled by specialized agencies, the fact that
it is subjected to judicial review under Art. 226 of the Constitution of
India, would make it obligatory for the judges to finally take it up for
judicial scrutiny.
  Restrictions on imprisonment of offenders
under twenty-one years of age
SECTION 6, of the Probation of Offenders Act, 1958 , provides :
(1) When any person under twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but not with
imprisonment for life), the court by which the person is found guilty shall
not sentence him to imprisonment unless it is satisfied that, having regard
to the circumstances of the case including the nature of the offence and the
character of the offender, it would not be desirable to deal with him under
section 3 or section 4, and if the court passes any sentence of imprisonment
on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to
deal under section 3 or section 4 with an offender referred to in sub-section
(1) the court shall call for a report from the probation officer and consider
the report, if any, and any other information available to it relating to the
character and physical and mental condition of the offender.
 Advantages of probation
• Stability :While on probation, the offender can maintain employment and
continue to be a contributing member of society. His life is not interrupted, which
provides stability.
• Cost :Incarceration can cost taxpayers hundreds of dollars a day per offender,
whereas probation only costs a few dollars per day. Those on probation also
contribute to the cost of their supervision by paying monthly fees in addition to
fines or restitution.
• Rehabilitation :Offenders on probation are evaluated and may be required to
participate in rehabilitation. Treatment professionals are able to guide an offender
as challenges arise, teaching him how to cope with daily life.
• Supervision :Higher-risk offenders are monitored more closely than those of a
lesser risk, protecting society from new offenses. For example, these inviduals have
more face-to-face contact with the probation officer, and many have a curfew or
drug testing. Lower-risk offenders may report to the probation officer once a
month.
• Clean Slate :Some first-time offenders who complete probation successfully may
have their criminal record expunged. Usually, this is applicable only to first-time
offenders who participate in a special program where the charges are dismissed
upon successful completion of probation. Still, the offender will have to file a
motion to expunge with the court, and each state differs in how these types of
cases are handled.
 Problems in the practical implementation of probation in India
1. The advocates of probation system assert that this correctional method of treatment
of criminals being compatible with the advances in social and medical science, is the
only scientific approach and hence the concept of punishment must be modified ,if
not dissipated. This logic really destroys the very basis of our present sentencing
justice. Keeping in view the basis of our present sentencing justice. Keeping in view
the increasing crime rate and its frightening dimensions, undue emphasis on
"individual“ offender at the cost of societal insecurity can hardly be appreciated as a
sound penal policy.
2. Probation system lays greater emphasis on the offender and in the zeal of
reformation the interest of the victim of the delinquent's at are completely lost sight
of. This obviously is against the basic norms of justice.
3. Admitting all young offenders and first offenders to probation regardless of their
attendants, personality and mental attitude ,might lead to recidivism because many
of them may not respond favorably to this reformative mode of treatment. Section 3
of the Probation of Offenders Act, 1958 provides that the court at its direction, can
order unsupervised release of the offender after due admonition in offences such as
theft, cheating etc. This section does not require the Court to call for a pre-sentence
report from the probation officer and, therefore, the court does not possess
necessary information regarding character and antecedents of the offender.
Consequently, there is possibility of dangerous offenders being released under this
provision which may defeat the very
4. In many cases it is difficult to ascertain whether the delinquent is a first offender or
a recidivist. Therefore, there is a possibility that an offender who is otherwise a
recidivist, might be admitted to probation and he may not react favorably to this
correctional technique.
5. Section 4 of the Probation of Offenders Act, which is a key section of the Act, does
not make supervision of a person released on probation mandatory when the
court-orders release of a person on probation on his entering into a bond with or
without sureties .This is not in accordance with the probation philosophy which
considers supervision essential in the interests of the offender.
6. Though Section 6 of the Act requires the court to take into consideration the
probation officer's report when decision to grantor refuse probation to an offender
who is below 21 years is to betaken, but many a times courts do take decision
without such report. This is again, against the spirit of the philosophy enshrined in
the Probation Act.
7. Perhaps the lack of real interest for social service among the probation personnel
presents a major problem in selecting right persons for this arduous job. Prof.
Chute attributes lack of properly qualified personnel, want of adequate supervision
and excessive burden of case-work as the three major causes of inefficiency of the
probation staff. Particularly in India, probation is reduced to a mere farce and the
correctional task is being handled by persons who are mostly inexperienced and
inadequately trained for this work. The lack of enthusiasm for social service and
inadequate resources for implementation of probation programs are perhaps the
two main causes of slow progress of probation service in India.
 JUDICIAL PRONOUNCEMENTS OF PROBATION
OF OFFENDERS ACT
• 1991 CRLJ P.294 SAYED VS M.J. SIMON
• 1995 CRLJ P.2738 (P&H) NAZIR SINGH VS
STATE OF PUNJAB
• 1995 CRLJ P.3522 (PATNA) SHIVNATH RAM VS
STATE OF BIHAR
• 1998 CRLJ P.1107 (SC)(P&H)
 BIBLIOGRAPHY
• www.wikipedia.com
• www.indiankanoon.com
• www.legalfacts.com
• Bare act of the probation of offenders act,
1958