Gujarat High Court Criminal Manual (subordinate court practice), 1977
The provisions of section 562 of the Code of Criminal Procedure shall cease to apply to the place where the provisions of Probation of Offenders Act, 1958, are applicable. The Act provides for three distinctive methods of treatment for the offenders. (a) Section 3 of the Probation of Offenders Act, 1958, deals exclusively with the first offenders, who are convicted for the offences punishable under sections 379, 380, 381, 404, 420 I.P.C. or for an offence punishable with imprisonment not more than two years or with fine or both under the I. P. Code or under any other law. It provides for the release of such offender after due admonition. This method of treatment is likely to be effective only to a small number of offenders, as it provides neither for bond nor sureties and merely sends the offender back, without any constructive help to live in the same conditions in which he lived, when he committed the offence. (b) Section 4 (1) provides for the release on probation. No order for probation of good conduct can be passed against the person who is found guilty of having committed the offence punishable with death or imprisonment for life. The section provides that the offender should enter into the bond. The offender may also be required to give sureties. It would normally be advisable to take sureties, in addition to the personal bond as sureties are themselves a guarantee of some efforts towards reform and a safeguard against the offender removing himself outside the jurisdiction of the court and breaking the condition of the bond entered into by him. (c) Section 4 (3) provides for the supervision order. by the Court. When the court passes the order for the supervision of good conduct on executing the bond, with or without sureties, the court may, in addition, pass a supervision order. directing that the offender shall remain under the supervision of the Probation Officer named in the order during such period not being less than one year as may be specified in the order. The court has also powers to impose conditions as it deems necessary for the due supervision of the offender and the Court has to specify such conditions in the supervision order. When the order of supervision is passed against the offender, the Court shall require the offender to enter into the bond, with or without sureties, to observe the conditions specified in the order and also such additional conditions with respect to residence, etc., as mentioned in Sub-section (4) of section 4 of the Act. It is obligatory on the court to explain to the offender the terms and conditions of the order of supervision and it is obligatory to furnish supervision order to each of the offender, the sureties, if any, and also to the concerned Probation Officer. Releasing on probation with the supervision order is the most constructive type of treatment and experience has proved that the delinquents are far more likely to make good: when placed under the guidance of a Probation Officer. It is, therefore, advisable that even in the case of first offender, they should be dealt with under section 4 of the Act in preference to discharge after due admonition under section 3 of the Act. (d) In suitable cases, the offender may be directed under section 5 of the Act to pay compensation and the cost of the proceedings to the person to whom loss or injury has been caused. (e) The most important provision laying down restriction on punishment of the imprisonment to the offender under 21 years of age is contained in section 6 of the Act. It restricts the powers of the court to sentence to imprisonment to the young offender under 21 years of age who is found guilty of having committed an offence punishable with imprisonment, except for the imprisonment of life. In such cases, the court 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 of the Act. It is necessary for the court to decide and to record the reasons for not passing the orders under section 3 or 4 of the Act. It is obligatory upon the court to call for the report of the Probation Officer and to consider the report, if any, and consider any information available to the Court relating to the character, physical and mental condition of the offender for the purpose of justifying itself as to whether it would not be desirable to deal with under section 3 or 4 of the Act before sentencing the offender under 21 years of age, to imprisonment. The report of the Probation Officer should be treated as confidential. The mandatory provisions of section 6 of the Act should be strictly complied by the Courts.