10th SHANKARRAO KANITKAR NATIONAL MOOT COURT COMPETITION 2016,

MODERN LAW COLLEGE,

IN THE HONORABLE SUPREME COURT OF INDIA
IN THE MATTER OF

MLRC
VS.
UNION OF INDIA

MEMORIAL FILED ON BEHALF OF RESPONDENT

COUNSEL HARSHITA APPEARING ON BEHALF OF UNION OF INDIA

TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................ 2
STATEMENT OF FACTS.............................................................................................................
STATEMENT OF JURISDICTION...............................................................................................
STATEMENT OF ISSUES............................................................................................................ 3
ARGUMENTS ADVANCED 4-9
I.
II.

Whether probation can be asked as a matter of right?

Whether current machinery provided under the Act is adequate and proper?

PRAYER. 10
BIBLIOGRAPHY...........................................................................................................
Cases...............................................................................................................
Statutes............................................................................................................
Books...............................................................................................................

STATEMENT OF ISSUES
I.
II.

WHETHER PROBATION CAN BE ASKED AS A MATTER OF RIGHT?

WHETHER CURRENT MACHINERY PROVIDED UNDER THE ACT IS
ADEQUATE AND PROPER?

ARGUMENTS ADVANCED
I.
1. Swapnil was found guilty for the offence of outraging the modesty of Seema, punishable
under Section 354 of Indian Penal Code (IPC) by the trial court. The Supreme Court
noted in the State of Himachal Pradesh Vs. Dharam Pal1 case that, In a traditional and
conservative country like India, any attempt to misbehave or sexually assault a woman is
one of the most depraved acts. The Act (Probation of Offenders Act, 1958) is intended to
reform the persons who can be reformed and would cease to be a nuisance in the society.
But the discretion to exercise the jurisdiction under Section 4 (of the Probation of
Offenders Act, 1958) is hedged with a condition about the nature of the offence and the
character of the offender.
2. In a similar case Ajahar Ali Vs. State of West Bengal2 of conviction under 354 IPC, the
Supreme court established that, ...The appellant has committed a heinous crime and with
the social condition prevailing in the society, the modesty of a woman has to be strongly
guarded and as the appellant behaved like a road side Romeo, we do not think it is a fit
case where the benefit of the Act 1958 should be given to the appellant.
3. Also, the SC stated in State Of Madhya Pradesh vs Babulal3, Social impact of the
crime, particularly where it relates to offences against women, cannot be lost sight of and
per se require exemplary treatment. Any liberal attitude of imposition of meager sentence
or too sympathetic view may be counter productive in the long run and against social
interest which needs to be cared for, protected and strengthened by string of deterrence
inbuilt in the sentencing system.
4. On the contention whether Probation is a matter of right, the SC said in Commandant 20
Bn Itb Police vs Sanjay Binjola4 that, It is true that nobody can claim the benefit of
Sections 3 and 4 of the Probation of Offenders Act as a matter of right and the court has
to pass appropriate orders in the facts and circumstances of each case having regard to the
1 State of Himachal Pradesh Vs. Dharam Pal, (2004) 9 SCC 681
2 Ajahar Ali Vs. State of West Bengal, (2013) 10 SCC 31
3 State Of Madhya Pradesh vs Babulal, AIR (2008) SC 582
4 Commandant 20 Bn Itb Police vs Sanjay Binjola, (2001) Crl LJ 2349
4

nature of the offence, its general effect on the society and the character of the offender,
etc. There are laws which specifically direct that the provisions of Probation of Offenders
Act shall not apply to the persons convicted for those offences and there may be cases
under other laws as well which may not justify the exercise of the powers of Probation of
Offenders Act. Those are instances for showing how the nature of the offence could
dissuade the court to give the benefit. This makes it apparent that Probation cannot be
asked as a matter of right especially in crimes against women and other depraved crimes
that need adequate sentencing.
5. Moreover, in B.G. Goswami v. Delhi Administration5, Supreme Court stated:
Now the question of sentence is always a difficult question, requiring as it does, proper
adjustment and balancing of various considerations which weigh with a judicial mind in
determining its appropriate quantum in a given case. The main purpose of the sentence
broadly stated is that the accused must realise that he has committed an act which is not
only harmful to the society of which he forms an integral part but is also harmful to his
own future, both as an individual and as a member of the society. Punishment is designed
to protect society by deterring potential offenders as also by preventing the guilty party
from repeating the offence; it is also designed to reform the offender and re-claim him as
a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and
punitive aspects of punishment thus play their due part in judicial thinking while
determining this question. In modern civilized societies, however, reformatory aspect is
being given somewhat greater importance. Too lenient as well as too harsh sentences both
lose their efficaciousness. One does not deter and the other may frustrate thereby making
the offender a hardened criminal.
6. Hence, letting off such criminals with mere probation is an extremely lenient punishment
that does not offer much deterrence and leads to recidivism. Also, Section 4 of the Act
which deals with the power of the Court to release certain offenders on probation of good
conduct, reads as follows: Power of Court to release certain offenders on probation of
good conduct.
(1) When any person is found guilty of having committed an offence not punishable with
death or imprisonment for life and the Court by which the person is found guilty is of
opinion that, having regard to the circumstances of the case including the nature of the
5 B.G. Goswami v. Delhi Administration, (1974) 3 SCC 85
5

offence and the character of the offender, it is expedient to release him on probation of
good conduct) then, notwithstanding anything contained in any other law for the time
being in force, the Court may, instead of sentencing him at once to any punishment, direct
that he be released on his entering into a bond, with or without sureties, to appear and
receive sentence when called upon during such period, not exceeding three years, as the
Court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the Court shall not direct such release of an offender unless it is satisfied
that the offender or his surety, if any, has a fixed place of abode or regular occupation in
the place over which the Court exercises jurisdiction or in which the offender is likely to
live during the period for which he enters into the bond.
(2) Before making any order under Sub-section (1), the Court shall take into
consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under Sub-section (1) is made, the Court may, if it is of opinion that in
the interests of the offender and of the public it is expedient so to do, in addition pass a
supervision order directing that the offender shall remain under the supervision of a
probation officer named in the order during such period, not being less than one year, as
may be specified therein, and may in such supervision order impose such conditions as it
deems necessary for the due supervision of the offender.
(4) The Court making a supervision order under Sub-section (3) shall require the
offender, before he is released, to enter into a bond, with or without sureties, to observe
the conditions specified in such order and such additional conditions with respect to
residence, abstention from intoxicants or any other matter as the Court may, having
regard to the particular circumstances, consider fit to impose for preventing a repetition
of the same offence or a commission of other offences by the offender.
(5) The Court making a supervision order under Sub-section (3) shall explain to the
offender the terms and conditions of the order and shall forthwith furnish one copy of the
supervision order to each of the offenders, the sureties, if any, and the probation officer
concerned.
7. It was laid down in the Dasappa vs State Of Mysore6 case that, It is obvious from the
wording of Sub-section (1) that the power to release an accused on probation of good
conduct is discretionary. The discretion has to be exercised with due regard to the
6 Dasappa v. State of Mysore, AIR (1965) Mys 224
6

circumstances, under which the offence was committed, the nature of the offence and the
character of the offender. In taking the last factor into consideration the Court is bound to
consider the report of the Probation Officer concerned, if any in relation to the accused.
In the present case as the point was not raised, the trial Court did not call for any report of
the Probation Officer, nor was any evidence adduced by the accused as regards his
character and previous antecedents. No doubt, it is possible to gather from the judgment
of the trial Court the circumstances, under which the offence was committed and the
nature of the offence for which the accused was convicted. It is therefore manifest that it
is only when the Court forms an opinion that the offender in a given case should be
released on probation of good conduct that it has to act as provided by Section 4 of the
Act. It was for the accused to have placed all the necessary material before the Court
which could have enabled it to consider that the first accused was an offender to whom
the benefit of Section 4 could be extended.
8. In the light of the above precedents and the societal condition of women in contemporary
world, the Trial court was completely right in its judgement of not giving benefit of
Probation to Swapnil even if there was no report by any probation officer.
II.
9. The section 17 of Probation of Offenders act, 1958 states that, Power to make rules.
(1) The State Government may, with the approval of the Central Government, by
notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:
(a) appointment of probation officers, the terms and conditions of their service and
the area within which they are to exercise jurisdiction;
(b) duties of probation officers under this Act and the submission of reports by them;
(c) the conditions on which societies may be recognised for the purposes of clause (b)
of sub-section (1) of section 13;
(d) the payment of remuneration and expenses to probation officers or of a subsidy to
any society which provides probation officers; and
(e) any other matter which is to be, or may be, prescribed.
(3) All rules made under this section shall be subject to the condition of previous
publication and shall, as soon as may be after they are made, be laid before the State
Legislature.

10. States like Rajasthan, Uttar Pradesh, Assam and Himachal Pradesh have linked probation
with social welfare and others state like Bihar, West Bengal, Punjab, Andhra Pradesh,
Tamil Nadu and Kerala with the Prison Department. Madhya Pradesh has linked it with
the Law Department, while Karnataka has its separate Directorate. The probation officer
has been assigned two functions: social investigation and supervision of probationers. On
an average, one probation officer investigates 20 cases and supervises ten cases a year.
11. Chapter XI of the Criminal Manual of State of Maharashtra states that: Lists containing
the names of (i) Probation Officers appointed by the State Government. (ii) salaried
Probation Officers provided by Societies, and (ii) part-time Probation Officers, for
service in the District or in specified areas of the District or allocated to
specified Courts in the district, shall be kept by the District Probation Officer
and made available to the Court whenever necessary.
The Court may appoint a Special Probation Officer under cluase (c) of subsection (1) of
Section 13 of the Act in view of the special circumstances of particular case, when no
Probation Officer on the lists referred to in clause (b), subrule (3) of Rule 12 of the
Maharashtra Probation of Offenders Rules, 1966, is available or is considered suitable
enough to attend to the case.
12. Under Section 13(1)(b) of the Probation of Offenders Act, 1958, read with
rule 24 of the Maharashtra Probation of Offenders Rules, 1966, the following
institutions have been recongnised by the Government of Maharashtra.
1. The Nava-Jeevan Mandal, Pune.
2. The Maharashtra State Probation and AfterCare Assocation, Greater Bombay, Bombay
3. The NavaJeevan Mandal, Nashik.
4. The Marathwada Nav Jeevan Mandal, Aurangabad.
The above facts depict that the Probation of Offenders act has been successfully
implemented and adopted by the state governments in their own essence.

In conclusion, the object of punishment has been succinctly stated in Halsbury's Laws of
England7, thus; The aims of punishment are now considered to be retribution, justice,
deterrence, reformation and protection and modern sentencing policy reflects a combination of
7 Halsbury's Laws of England, 4th Edition; Vol.II; para 482
8

several or all of these aims. The retributive element is intended to show public revulsion to the
offence and to punish the offender for his wrong conduct. The concept of justice as an aim of
punishment means both that the punishment should fit the offence and also that like offences
should receive similar punishments. An increasingly important aspect of punishment is
deterrence and sentences are aimed at deterring not only the actual offender from further
offences but also potential offenders from breaking the law. The importance of reformation of the
offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial
opinion towards this particular aim is varied and rehabilitation will not usually be accorded
precedence over deterrence. The main aim of punishment in judicial thought, however, is still the
protection of society and the other objects frequently receive only secondary consideration when
sentences are being decided.

PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before this Honourable Court that it may be pleased to:

1. Dismiss the petition and uphold the decision of the trial court in the case
concerning Swapnil;

AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience.
COUNSELS ON BEHALF OF RESPONDENT

10