Section 361 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!

This is a new section which makes it mandatory for the Court to state special reasons in their judgment as to why the provisions of Section 360 or the Probation of Offenders Act or the Special law relating to Juveniles etc. were not applied in the case when they could have been applied for the reformation and rehabilitation of the offender.

However, where the nature of the offence or the antecedents of the offender are such that benefit of release on probation could not be admitted under Section 360 or any other Special law, no reasons need be recorded.

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Explaining the rationale of probation under Section 360, Cr.P.C. and the Probation of Offenders Act, 1958, the Supreme Court has observed:

“The object of the Act is to prevent conversion of youthful offender into obdurate criminals as results of their association with hardened criminals of mature age in case of youthful offenders are sentenced to undergo imprisonment in jail.”

Section 361 requires the Court to allow the benefit of release on probation even to an offender who has been previously convicted unless there are special reasons for denying this benefit to him.

Omission to state Special reasons for denying the benefit of probation to an offender has been held to be a mere irregularity and the Court of appeal or revision may set aside the sentence passed by the lower Court and order release of the accused on probation of good conduct.

A mere omission to mention reasons for not invoking the provisions of Sections 360 and 361 will not render the sentence ipso facto erroneous if the facts of the case clearly indicate absence of any mitigating circumstances.

It has been held that mandatory provisions of Section 361 should be followed by the Courts suo motu while trying young offenders and these provisions supplement the provisions of the probation of Offender’s Act, 1958 and, therefore, there is no conflict between the two.

In Ramesh Dass v. Raghunath & others, the accused was convicted for an offence under Section 326/149, IPC and sentenced to five years’ imprisonment and was ordered to pay Rs. 20,000/- and Rs. 5,000/- respectively to the two victims of his offence as damages.

The accused filed a revision petition against this sentence before the High Court of Punjab and Haryana whereas the State appealed for enhancement of the sentence. The Court dismissed the appeal of the State and ordered release of the accused on probation of good conduct under Section 360 of Cr. P. C. but enhanced the amount of fine.

The State went in appeal before the Supreme Court against the order of the High Court. The Apex Court held that the offence under Section 326/149, IPC being punishable with imprisonment for life, the provisions of Section 360 of Cr. P. C. could not be applicable in the case. The Court, however, ruled that the case could have been tried under the Probation of Offenders Act, 1958. The Court therefore, remanded the case to the High Court with above observations.


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