Probation Of Offenders Act: Supreme Court Says Nature Of Offence, Criminal Antecedents Must Guide Release

The Supreme Court has held that release of an offender on probation under Section 4 of the Probation of Offenders Act, 1958 is not automatic and must be based on a careful consideration of the nature of the offence, the circumstances of the case and the character of the offender.

Section 4 of the Probation of Offenders Act empowers courts to release certain offenders on probation of good conduct instead of sentencing them to immediate imprisonment. It applies to any person found guilty of an offence not punishable with death or imprisonment for life.

A Bench of Justices J B Pardiwala and K Vinod Chandran said courts should not grant the benefit of probation where the offender has criminal antecedents or where the brutality of the crime calls for a deterrent sentence.

The Bench made the observations while allowing an appeal filed by Umesh Chand, brother of the victim, against an order of the Allahabad High Court which had released two accused on probation despite their criminal antecedents and the serious injuries suffered by the victim.

Court said the Allahabad High Court had incorrectly applied Section 4 of the PoO Act without properly considering the criminal antecedents of the accused and the nature and brutality of the offence.

"We have before us a case, doomed from its inception insofar as justice delivery to the victim is concerned, consequent to a brutal attack with very grievous injuries, the aftermath of which is even now suffered by the injured victim," the Bench said.

The Additional Sessions Judge, Bahraich, who conducted the trial, had sentenced accused Onkar Nath and Shiv Kumar to five years' rigorous imprisonment and a fine of Rs 20,000 each, with a default sentence of one year of simple imprisonment, under Section 308 of the IPC [now Section 110 of the Bharatiya Nyaya Sanhita, 2023 (BNS)].

Court noted that the high court had been "very indulgent" in releasing the accused under Section 4 of the PoO Act.

The prosecution case was that the accused attacked the victim after becoming angry with him for opening a shop next to theirs.

Court also noted that the victim had suffered cut injuries and gunshot wounds which, on a plain reading, would fall within the definition of "grievous hurt" under Section 320 of the IPC [now Section 116 of the BNS], and not merely "hurt" under Section 319 [now Section 114 of the BNS].

It observed that Section 308 therefore ought not to have been invoked and that the offence would clearly fall under Section 307 of the IPC [now Section 109 of the BNS].

"Be that as it may, the charge was under Section 308 of the IPC, and the trial was proceeded with and there is little we can do at this stage," the Bench said.

Court found that the accused were not first-time offenders. The report of the Probation Officer showed that Onkar Nath faced five criminal cases, while Shiv Kumar faced six.

Counsel for the appellant also pointed out that the accused had been involved in several criminal cases during the trial and appeal. The State informed the Court that the accused had been recommended for preventive detention and that their criminal antecedents had been specifically brought to the high court's notice.

The State also pointed out that the high court had not called for or considered the report of the Probation Officer before extending the benefit of Section 4 of the PoO Act.

The accused, meanwhile, argued that the incident had occurred in 2003, that they had remained on bail throughout and were now above 60 years of age with families to look after.

"We are informed that the accused had not undergone any sentence and was not in custody even for a single day," the Bench noted.

Court took particular note of the victim's condition nearly two decades after the attack.

"More disturbing is the current status of the injured victim," the Bench said.

Referring to the Probation Officer's report, Court noted that the victim remained "visibly weak, slow, sluggish and drowsy". He walked with great difficulty, suffered continuous pain and had "lost substantial functionality of both upper limbs, right hand being disabled".

The victim's family consisted of six daughters, four of whom were married and two unmarried. His medical treatment was continuing at Max Hospital, Lucknow.

"These aspects more than explain why the victim is not before us, and the first informant, his brother is before us seeking justice to the victim," the Bench said.

Court expressed concern over the manner in which the trial court and the high court had dealt with the case, saying there was "an amount of consternation" at the "casual manner" in which the issue had been considered from the stage of taking cognizance until the release of the accused under the PoO Act.

Court said Section 4 of the PoO Act could not be applied merely on the ground that an accused was being treated as a first offender in the particular case.

It said the circumstances of the case, the nature of the offence and the character of the offender must be the "reigning factor" while deciding whether it would be expedient to release an accused on the premise of good conduct.

"In the facts of this case," Court said, "good conduct" was clearly lacking.

The brutality of the attack and the grievous injuries suffered by the victim should have led the Court to draw an adverse inference regarding the "nature of offence", it held.

The Bench said the high court had released the accused on the basis of good conduct despite an overwhelming adverse report concerning their character and despite giving "short shrift" to the nature of the offence.

"There was nothing commending the court to so release the accused, since the conduct, over the years, of the accused was anything other than ‘good’," the Bench said.

Court further rejected the high court's observation that the accused had been "suffering for twenty-two years" because of the prolonged proceedings.

"True, protracted trial is agonizing but here, the accused were on bail and merrily indulging in criminal activities. The victim, on the other hand, in the ensuing years was, day-in-and-day out suffering the debilitating effects of the attack," the Bench said.

Court accordingly set aside the high court's order and directed the accused to surrender within two weeks. It directed that, if they failed to do so, the trial court would immediately initiate proceedings to apprehend them.

Allowing the appeal, Court restored the matter to the Allahabad High Court, Lucknow Bench, with a request to take up the appeal only after ensuring that the accused were taken into custody.

Case Title: Umesh Chand Vs State of UP & Ors

Bench: Justices J B Pardiwala and K Vinod Chandran

Date of Judgment: October 07, 2026