Section 7 – Report of probation officer to be confidential – Probation of Offenders Act:
The report of a Probation Officer referred to in sub-section (2) of Section 4 or sub section (2) of Section 6 shall be treated as confidential:
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Provided that the Court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report.
The report of the Probation Officer which he submits to the Court is confidential in nature. However, if the Court in its discretion deems it in the interest of the accused, the contents of the report may be disclosed to the accused or any other person as the Court directs.
The report referred to under this section is called Pre-sentence Report, which constitutes the basis for the trial Court to decide whether to allow the benefit of release on probation to the accused or to sentence him.
The report is prepared by the Probation Officer after a thorough investigation of the case-history of the offender which includes his family background, surroundings, level of education, past criminal record and other antecedents. The section does not make it mandatory for the Court to call for a Presentence report of a Probation Officer for deciding about the release of accused on probation.
It, therefore, follows that the Court is not bound by the opinion expressed by the Probation Officer in the Pre-sentence report. In other words, the Court may accept it or even ignore it at its discretion. But generally the report helps the Court in making a decision about grant of benefit of probation to the accused who is found guilty of an offence by the Court.
As stated earlier, in the case of Abdul Qayum v. State of Bihar, the accused aged 16 years pick-pocketed Rs. 56/-. The Probation Officer submitted a favourable report about the antecedents of the accused. But despite that report, the Court denied the benefit of probation to the accused and sentenced him to six months’ rigorous imprisonment because of his association with gangster pick-pockets.
It may be stated that confidential nature of Probation Officer’s pre-sentence report under Section 7 of the Act, may sometimes be unnecessarily damaging to the offender and is likely to deprive him of his right to liberty. On the other hand, if the report is not to be treated as confidential, it may perhaps lead to more dangerous consequences. Because in that case, the Probation Officer may be hesitant in giving true report and information about the offender due to the apprehension of being subject to challenge in a law Court and being put to unnecessary harassment.
Thus it is bound to affect the true and frank reporting about the offender’s antecedents by Probation Officer to the sentencing Court. The High Court of Goa in State v. Naguesh G. Govenkar had expressed a view that consideration of the report of the Probation Officer is a condition precedent for the release of the accused on probation. Similar view was expressed by the High Court of Mysore in Asstt. Collector of Central Excise v. Basiklal Chandmal.
Emphasising the significance of Pre-sentence report Mr. Justice V.R. Krishna Iyer of the Supreme Court (as he then was ) quoting from an American case, observed in Dilbagh Singh v. State of Punjab as follows:—
“For a Judge who wants to sentence persons on the best available information rather than on guess work, inadequate information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation.”
The Pre-sentence report of the Probation Officer should contain sufficient information about the personality, character, health, environmental circumstances and other factors which motivated the offender to commit the offence. It should contain details relating to marital status of the offender and his family background as also neighbourhood surroundings and previous criminal record, if any.
The report should be concluded with an objective evaluative summary about the offender and Probation Officer’s overall assessment about the case so as to enable the sentencing Magistrate/Judge to take final decision regarding offender’s release on probation under the Probation of Offenders Act, 1958.
The requirement of Pre-sentence report is mandatory in case of offenders who are below the age of 21 years but not considered fit for release on probation under Section 6 (2) of the Act.
The provisions regarding requirement of Pre-sentence report by the Court for releasing offenders on probation are to be found in Sections 4 (2) and 6 (2) of the Probation of Offenders Act. Section 4 applies to a person of any age whereas Section 6 expressly provides a more liberal application of probation law to offenders who are under 21 years of age.
The distinction in approach towards these two categories of persons in the matter of application of probation law becomes more conspicuous from the pharaseology used in these two sections. Section 4 (2) says that before making an order of probation under this section, the Court shall take into consideration the Pre-sentence report, if any, but Section 6 mandates that while considering the case of a person under 21 years of age for release on probation, the Court shall call for a report from the Probation Officer and obtain information about the character and physical and mental condition of the offender.
It, therefore, follows that the requirement of Pre-sentence report of Probation Officer is mandatory in case where offender is under 21 years of age and not considered fit for release on probation whereas it is not mandatory in case of Section 4 as indicated by the use of words “if any” in that section.
The Supreme Court in Mohd Aziz Mohammad Nasir v. State of Maharashtra observed that even if the requisition of requirement of Pre-sentence report was not raised in the Court below, the higher Court, i.e., the High Court or the Supreme Court itself could allow this benefit to the accused instead of remanding the case to the trial Court.