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Report No. 142

9.25. Commentary.-

The P.O. Act and the provision embodied in section 380, Cr. P.C. constitute benevolent provisions calculated to benefit the community as a whole as also to extend humane treatment with an eye on the reformation of the offender in respect of matters whore the imposition of a substantive term of jail would be counter-productive both to the community as well as to the offender. As indicated in the Statement of Objects and Reasons of the P.O. Act and in a catena of court cases-

(1) There has been an increasing emphasis on the reformation and rehabilitation of the offender as a useful and self-reliant member of society without subjecting him to deleterious effects of jail life;

(2) A conviction coupled with supervision through the Probationary Officers may result in reformation and make the offenders useful members of the community and prevent them from indulging in anti-social behaviour in future;

(3) Many of the offenders are not habitual or dangerous criminals but are weak characters who have surrendered to temptation or through mis-fortune have been brought into the operations of the police and the courts. They, therefore, deserve to be given an opportunity to behave as responsible citizens in future;

(4) The offender is not thrown in the company of hardened criminals and exposed to being led to deeper waters or more serious crimes and adopting a criminal way of life in future, having earned a stigma of undergoing a jail sentence and having lost respectability in the society;

(5) Recourse to probation in preference to sentencing to a term in jail results in reducing the burden on jails which are already over-crowded and saves the community from spending on the upkeep of those who have harmed the community in the past and those who are exposed to be initiated on a path harmful to the community;

(6) A person who has once gone to jail may not mind going to jail once again for another offence for the harm to his character and standing in the community has already befallen him and having once been painted black, his social visage would remain tarnished.

The Court would, therefore, make an enlightened approach and extend the benefit of these provisions to such offenders who seek to avail of the benevolent provisions. But as at present, it is both common knowledge and it is gathered in the course of the interviews with the persons concerned with the administration of these provisions as well as the members of the Judiciary and the members of the Bar, these provisions are availed of but infrequently. It is common knowledge that only very few persons avail of the benefit of these provisions.

The factor which is responsible for the apathy in invoking and applying these provisions is not difficult to identify. Recourse to these provisions can be made by an offender who pleads guilty in a summons case as soon as he appears. There is no attraction to do so unless his prayer for release on probation is likely to succeed. If he pleads not guilty he can make recourse only after a protracted trial which results in conviction.

An offender who has already undergone the heart-breaking travails of a criminal trial involving tremendous time-cost, money-cost and effort-cost till the conclusion of the trial has little incentive to avail of these provisions if and when the trial ultimately results in conviction. He would have already spent considerable amount in legal cost in securing the services of a professional lawyer and would have spent considerable time in making innumerable visits to instruct his lawyer at his office and numerable visits to the court where, after having to wait for hours, his matter would have been adjourned from time to time.

He would have lost many working hours many working days in the course of this exercise. At the conclusion of the trial, because of the inavailability of some witness or on account of the failure of the witness to give a consistent and coherent account after a lapse of a long time between the date of the occurrence and the date of his giving evidence on account of some technical lacuna on the part of the prosecution, he would have secured an unmerited acquittal oven if he was really guilty of an offence with which he was charged.

In case he was convicted be of would still have hops of securing an acquittal in the appeal or revisional court. Having suffered for a long time, he would not mind suffering for some more time in pursuing an appeal or a revision. If ultimately the conviction is confirmed, [the statistics show that the ratio of conviction is perhaps less than 20%j, he may at least secure a short sentence. Under the circumstances, there is a little enthusiasm to invoke the aforesaid provisions of the Act.

If, however, he has the option to approach the Competent Authority under the scheme to avail of the benefit of these provisions at a very early stage when he has not expended his money, time and energy resources, he would be in a better position to realise the advantages of these beneficent provisions. It is, therefore, desirable to enable an offender to make a composite application containing a prayer for allowing him to plead guilty and releasing him on probation, etc., in accordance with the letter and the spirit of the aforesaid provisions.

The Competent Authority must, however, be authorised by the statute itself to dispense with the requirement as regards calling for the report of the probation officer if the Competent Authority considers it fit case for dispensing with the same so that time is saved in fit cases. The purpose of the community would have been served in view of the conviction recorded in the case which would uphold the banner of rule of law. So also the purpose of giving an opportunity to the offender to cleanse himself would have been served.

It would, therefore, be advantageous to all concerned to make a provision in this behalf on the lines indicated hereinabove. If the Competent Authority is of the view that having regard to the gravity of the offence of having regard to the limitations engrafted in the provisions or having regard to the particular circumstances of the case, it is not a fit case for exercise of the powers, the Competent Authority would reject the application for pleading guilty, for recording conviction and release on probation and direct that the matter shall be tried by the trial court in the regular court in the regular manner and the offender shall undergo trial.

It would not result in prejudice either to the prosecution or defence in that event, for the making of the application itself would remain a confidential matter and there would be a statutory prohibition against this fact being mentioned in the court holding the trial or this factor being taken into consideration for reaching the conclusion in the trial which would have to be disposed of in accordance with law on merits on the basis of the evidence on record.

9.26. The plea judge shall follow the same procedure as prescribed by section 360, Cr. P.C. and so far as practicable, shall be informed by the same spirit and record reasons for declining the prayer for release on probation as envisaged by section 361 of Code of Criminal Procedure.

Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining Back

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