Section 11 of the Probation of Offenders Act, 1958: Courts Competent to Grant Probation, Probation for the First Time in Appeal or Revision, Appeals against Orders under Sections 3 and 4, the Special Review for Offenders under Twenty-One, Setting Aside Probation Orders, the Ceiling on Punishment, and Probation in the Supreme Court

Section 11 of the Probation of Offenders Act, 1958 answers four procedural questions. Which courts can make an order under the Act? Can an order be challenged, and where? What happens when a young offender is sent to prison and nobody appeals? And what can an appellate or revisional court do with a probation order it disagrees with? The answers are generous to the offender. Every court that can try and imprison him can release him, and so can every court that hears his case in appeal or revision, even if probation was never raised below. This note explains each sub-section and how the Supreme Court has used the Act in appeals under Article 136.

1. Section 11 — The Text

Section 11, POA — Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision

(1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.

(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

(4) When an order has been made under section 3 or section 4 in respect of any offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty.

2. Courts Competent to Grant Probation: Section 11(1)

Courts that may make an order under the Act

Figure 1: Courts that may make an order under the Act

Trial court. Any court 'empowered to try and sentence the offender to imprisonment'. A Magistrate who can try the offence can release the offender under Section 3 or 4, whatever the maximum sentence the Magistrate could impose.
Non obstante effect. The power exists 'notwithstanding anything contained in the Code or any other law', so limits in the procedural code on the sentencing powers of a class of court do not restrict the power to release.
High Court. May make an order under the Act when the case comes before it in appeal or revision, and also when it tries a case itself.
Any other appellate or revisional court. A Court of Session hearing an appeal from a Magistrate, or exercising revisional jurisdiction, may make an order under the Act.

2.1 Probation for the first time in appeal or revision

Section 11(1) empowers the appellate or revisional court to make an order under the Act 'when the case comes before it'. It need not be asked to do so by the trial court, and the offender need not have claimed probation below. The appellate court may substitute release under Section 3 or 4 for the sentence of imprisonment the trial court imposed. The Supreme Court held in Rattan Lal v. State of Punjab, AIR 1965 SC 444 that the appellate or revisional court may apply the Act even if it came into force in the area only after the trial court's decision, because the Act is beneficial.

⚠ Age and the appellate stage

For Section 6, the relevant age is the offender's age when the trial court sentenced him (Ramji Missar; Sudesh Kumar v. State of Uttarakhand, 2008). An appellate court therefore applies Section 6 by reference to that date, even if the offender has crossed twenty-one during the appeal. The Supreme Court in Sudesh Kumar also said that a plea of age should be raised before the trial court and not for the first time in appeal.

3. Appeals against Orders under Sections 3 and 4: Section 11(2)

An order under Section 3 or 4 is not a sentence, so without Section 11(2) it could be argued that the Code's provisions on appeals against sentence did not reach it. Section 11(2) settles the point: where such an order is made by any court trying the offender, other than a High Court, an appeal lies to the court to which appeals ordinarily lie from that court's sentences.

The forum of appeal under Section 11(2)

Figure 2: The forum of appeal under Section 11(2)

Appeal against a Section 3 order. Lies to the ordinary appellate court. The offender may challenge the conviction on which the admonition rests.
Appeal against a Section 4 order. Lies to the same court. The offender may challenge the conviction or the conditions of the bond and supervision order.
Orders of a High Court. Excluded from Section 11(2). A challenge lies only as the general law and the Constitution allow, typically to the Supreme Court.
Where the State considers probation wrong. The appellate or revisional court may set the order aside and pass sentence under Section 11(4), within the ceiling in its proviso.

4. Special Protection Where an Offender under 21 Is Imprisoned: Section 11(3)

Section 11(3) is a safety net for young offenders. It applies where a person under twenty-one has been found guilty, the court has declined to deal with him under Section 3 or 4, and it has passed a sentence of imprisonment, with or without fine, from which no appeal lies or is preferred. In that situation, the ordinary appellate court may intervene even though no appeal is before it.

The Section 11(3) safety net

Figure 3: The Section 11(3) safety net

Own motion. The appellate court may act suo motu, for example on noticing the case in the course of inspection or on information received.
Application by the convicted person. A young offender who did not appeal, perhaps because the sentence was short or he lacked legal help, may apply directly.
Application by the probation officer. The officer, who may know the offender's circumstances better than anyone, may bring the case to the appellate court's notice.
Calling for the record. The appellate court calls for and examines the record of the case.
Order. It may pass 'such order thereon as it thinks fit', including release under Section 3 or 4 in place of the imprisonment.

⚠ Section 11(3) and Section 6

Section 6 requires the trial court to call for a report and record reasons before imprisoning an offender under twenty-one. Section 11(3) ensures that a failure to comply with Section 6 does not go uncorrected merely because no appeal was filed. Read together, they make it very difficult for a young offender to be imprisoned without the question of probation being properly considered at some level.

5. Setting Aside a Probation Order and the Ceiling on Punishment: Section 11(4)

Section 11(4) works in the other direction. Where an order under Section 3 or 4 has been made, the Appellate Court or the High Court in revision may set it aside and in lieu thereof pass sentence on the offender according to law. This is the route by which a lenient order that was wrongly made can be corrected.

Substituting a sentence for probation, within the ceiling

Figure 4: Substituting a sentence for probation, within the ceiling

Who may do it. The Appellate Court, or the High Court in revision.
Sentence according to law. The substituted sentence must be one the law permits for the offence.
The ceiling. The proviso forbids a greater punishment than the court that found the offender guilty could have inflicted. If a Magistrate of the first class tried the case, the appellate court cannot exceed that Magistrate's sentencing powers even though the offence itself carries more.
Hearing. Since the offender will be worse off, he must be heard before the order is set aside and sentence passed.

6. Section 11 and the Supreme Court

The Supreme Court is 'any other court' before which the case comes 'on appeal' within Section 11(1). In appeals under Article 136, it has repeatedly applied the Act itself rather than remitting the matter, and it can use its power under Article 142 to do complete justice in the case.

Daulat Ram v. State of Haryana, AIR 1972 SC 2434. Applied Section 6 at the Supreme Court stage and released a young offender on probation where the courts below had not dealt with it.
Lakhvir Singh v. State of Punjab, (2021) 2 SCC 763. Held Section 6 mandatory and released two young appellants on probation in the Supreme Court, noting that the benefit is available at any stage.
Kunti Kumari v. State of Jharkhand (2022). Affirmed the conviction and released the appellant after due admonition under Section 3.
Chellammal v. State, 2025 INSC 540. Remitted the matter to the High Court for a probation officer's report, holding that the courts below had failed to consider probation.
Milind Ashruba Dhanve v. State of Maharashtra, 2026 INSC 355. Released the appellants on probation under Section 4 although only fines had been imposed, and directed the fines to be paid as compensation.

📖 Lakhvir Singh v. State of Punjab, (2021) 2 SCC 763

Facts: Two young men, aged nineteen and twenty at the time of the incident, had been sentenced to seven years' imprisonment. They had since compromised with the complainant.

Held: The Supreme Court held Section 6 to be mandatory and released the appellants on probation of good conduct, observing that the benefit could be extended at the stage of the Supreme Court itself.

Ratio: The Supreme Court, as an appellate court, is within Section 11(1), and probation relief is available at every stage up to and including the Supreme Court.

7. Quick Revision and Memory Aids

'Can imprison, can release'. Section 11(1): any court empowered to try and sentence to imprisonment may grant probation.
'Every level, even the top'. Appellate, revisional, High Court and Supreme Court.
'Appeal up one step, High Court excluded'. Section 11(2)
'Young, jailed, no appeal? The appellate court may still look'. Section 11(3): suo motu, offender's or probation officer's application.
'Set aside, but no heavier than below'. Section 11(4) and its ceiling.
'Article 136 to apply, Article 142 to complete'. The Supreme Court's route.

8. Frequently Asked Questions

Which courts can grant probation under the Act?

Any court empowered to try and sentence the offender to imprisonment, and the High Court or any other court when the case comes before it in appeal or revision (Section 11(1)).

Can probation be granted for the first time in appeal?

Yes. The appellate court may make an order under the Act even if probation was not considered or claimed at trial, and even if the Act came into force in the area after the trial court's decision (Rattan Lal v. State of Punjab, 1965).

Is an order under Section 3 or 4 appealable?

Yes. Section 11(2) provides an appeal to the court to which appeals ordinarily lie from the trial court's sentences, except where the order is made by a High Court.

What is the special power under Section 11(3)?

Where an offender under twenty-one has been imprisoned and no appeal lies or is filed, the appellate court may call for the record of its own motion or on the application of the offender or the probation officer and pass any appropriate order.

Can an appellate court cancel probation and impose a sentence?

Yes, under Section 11(4), but it cannot impose a greater punishment than the trial court could have inflicted.

Can the Supreme Court grant probation?

Yes. In appeals under Article 136 it acts as an appellate court within Section 11(1), and it has granted probation in cases such as Daulat Ram (1972), Lakhvir Singh (2021), Kunti Kumari (2022) and Milind Ashruba Dhanve (2026).

9. Related Topics and Provisions

Topic 9: Section 6. The mandatory protection that Section 11(3) backs up.
Topics 5 and 6: Sections 3 and 4. The orders that may be appealed or set aside.
Articles 136 and 142, Constitution. Supreme Court's appellate and complete justice powers.
Appeals and revision under the BNSS. The general law that Section 11 supplements