ORDER TO RELEASE ON PROBATION OF GOOD CONDUCT OR AFTER ADMONITION [SECTION 360]

Release on Probation [Section 360 ]

Eligibility: Release on probation is applicable to:

• • Persons above 21 years of age convicted with fine only or imprisonment for a term less than seven years
  • Persons below 21 years of age or women convicted of an offence not punishable with death or imprisonment for life
  • No previous conviction is proved against the offender

Court Considerations: Before releasing an offender on probation, the court considers:

• • Age of the offender
  • Character of the offender
  • Antecedents of the offender
  • Circumstances in which the offence was committed

Terms of Probation: The court may release the offender on probation on the condition that they:

• • Enter into a bond with or without sureties
  • Appear and receive sentence when called upon during a period not exceeding three years
  • Maintain peace and good behavior during the period of probation

Proviso

Role of Magistrate of the Second Class

If the conviction is by a Magistrate of the second class is of the opinion that provisons of sub section (1) can be applied but he is not specially empowered by the High Court, He shall record his opinion to that effect and further-

• • Forward the accused to a Magistrate of the first class for release on probation
  • The Magistrate of the first class shall dispose of the case forwarded to them as if it were a case originally dealt with by him [360(2)] , means
    • ⁠he may pass sentence or
    • ⁠may conduct further enquiry
    • ⁠he may take additional evidence if necessary

Admonition and Release : This provision has been enumerated under Section 360 (3) to 360 (10).

Meaning of Admonition:

Admonition refers to a formal warning or reprimand, often given by a court or other authority, to an individual who has been found guilty of a crime or offense.

Eligibility [360(3)]

The court may release an offender after admonition if: The offender is convicted of:

• • Theft
  • Theft in a building
  • Dishonest misappropriation
  • Cheating
  • The offence is punishable with fine only or imprisonment not exceeding two years
  • No previous conviction is proved

Court Considerations: Before releasing the offender, the court considers [360(3)]

• • Age of the offender
  • Character of the offender
  • Antecedents of the offender
  • Circumstances in which the offence was committed

Terms of Release:The court may, Impose conditions on the offender, including:{360(7)}

• • Having a fixed place of abode or regular occupation
  • Other conditions deemed fit
  • Ensure the offender or their surety meets these conditions

In case of Violation of these conditions imposed by the Court [360(8 & 360(9))]: If the offender violates the conditions of release:

• • The court may order his re-arrest and the offender so arrested will be brought before the court
  • Then, the court may:

1. Remand them to custody
2. Admit them to bail until the case is disposed of

Applicability[360(10)]: This section does not affect:

• • The Probation of Offenders Act 1958
  • The Children Act, 1960
  • Any other laws in force for the treatment, training, or rehabilitation of youthful offenders

Power of Appellate Court (Court of Session or High Court )[360(4)]:An order for admonition and release can be made by:

• • Any Appellate Court
  • The High Court
  • The Court of Session, when exercising its powers of revision

If an order for admonition and release has been made in respect of an offender, the High Court or Court of Session can[360(5)]:

• • Set aside the order on appeal, if there is a right of appeal to such Court
  • Set aside the order when exercising its powers of revision
  • Pass a new sentence on the offender according to law

Provided that the High Court or Court of Session shall not impose a sentence greater than what the trial court could have imposed, based on the offence for which the offender was convicted.

Case Laws

Sunil Kumar vs State of Haryana 2012 SC

In this case it was held that , Once a court has given a verdict finding someone guilty, it can't later decide to put them on probation. That's because once the judgment is given, the court's job is done and it can't change its decision. It means the court becomes functus officio after delivery of judgement.

Joginder Singh vs State of Punjab 1980 SC

It was held that the court must follow the rules of Section 360 when deciding whether to release someone on probation. These rules have limits and require the court to consider the severity of the crime and the need for punishment, balancing rehabilitation with justice.

SPECIAL REASONS TO BE RECORDED IN CERTAIN CASES [SECTION 361]

According to section 361 , The trial court has a duty to consider the applicability of beneficial legislation, such as the Probation of Offenders Act 1958 , Children Act 1960  and Section 360 Cr.PC, and must record reasons if they choose not to apply these provisions.

This implied that accused has a statutory right to claim the benefit of beneficial legislation, and the trial court must consider this right when making its decision.

Case Laws

Jai Prakash 1979 Del.

This section indicates that courts, when dealing with convicted individuals, should prioritize non-punitive methods for their reform and rehabilitation. Section 361 limits the court's discretion in sentencing convicted individuals. It also encourages courts to use special laws more often, which they weren't doing before. The release of an offender on probation can only be denied if there are special reasons recorded by the court.

State vs Lal Singh 1990 HP High Court

Sections 360 and 361 are mandatory, meaning the court must follow them even without being asked. Section 361 complements the Probation of Offenders Act, and there's no conflict between them, as stated in the case of State v Lal Singh, 1990.