Report No. 47

Chapter 10

Probation

10.1. Introductory.- In this chapter we deal with some specific points affecting punishment and liability.

10.2. There is a suggestion1 that amendments should be introduced either in each of the Acts-the Income-Tax Act, Wealth Tax Act, Gold Control Act, Customs Act, Excise Act- or in the Probation of Offenders Act itself, to bar the application of the Probation Act to the offenders under the above Acts. A concession (it is stated) may be made only in regard to offenders under 18 years of age, who may be allowed to be released on probation on bond for three years, subject to the other conditions in sections 4 and 6 of the Probation of Offenders Act. Somewhat similar suggestion has been made regarding the Foreign Exchange Act.2

1. Suggestion of a Ministry of the Government of India.

2. Letter dated 28-12-1971.

10.3. After careful consideration we are satisfied that the suggestion should be accepted and in our view the suggested amendment is desirable in respect of offences under all the Acts with which this Report is concerned.

We appreciate that the suggested amendment would be in apparent conflict with current trends in sentencing. But ultimately, the justification of all sentencing is the protection of society. There are occasions when an offender is so anti-social that his immediate and sometimes prolonged confinement is the best assurance of society's protection. The consideration of rehabilitation has to give way, because of the paramount need for the protection of society. We are, therefore, recommending suitable amendment in all the Acts, to exclude probation in the above cases:

"Whoever abets the commission of an offence punishable with imprisonment by a child under fifteen years of age, whether or not the offence is committed in consequence of the abetment, shall be punished with imprisonment of any description provided for that offence for a term which may extend to twice the longest term of imprisonment provided for that offence and shall also be liable to fine."

We agree with the above recommendation, which is of particular value in the context of economic offences.

10.4. Accordingly, we recommend the insertion of the following section in all the Acts:-

Amendment regarding Probation Act.

Section to be inserted in all the Acts.

Section 6 of the Probation of Offenders Act, 1958, shall, in relation to offences under this Act, be read as if for the words "twenty-one years of age", the words "eighteen years of age" were substituted.

10.5. In the Law Commission's Report on the Indian Penal Code1, there is a recommendation for the insertion of a new section in the Code for dealing with abetment of offences by children. The relevant section (as recommended) is as follows:--(See para 5.23 & 5.24 of 42nd Report).

1. 42nd Report (Indian Penal Code), paras. 5.23 and 5.24.