The Rajasthan High Court has held that a convict's inability to pay prosecution costs cannot, by itself, be a ground to revoke the benefit of probation and subject him to imprisonment.

Justice Farjand Ali was hearing an appeal filed by a convict who had been granted the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, despite being convicted of offences under the Indian Penal Code (IPC). The trial court had also directed him to deposit ₹10,000 towards the costs of the proceedings under Section 5 of the Act.

As the appellant could not pay the amount due to his poor financial condition, the trial court treated the non-payment as non-compliance with the conditions of probation, withdrew the benefit of probation, and imposed substantive sentences of imprisonment. Challenging this order, the appellant approached the High Court.It was argued on behalf of the appellant that his incarceration was merely on account of his inability to deposit the amount due to his extremely poor condition.

After hearing the contentions, the Court opined that difference had to be made between deliberate violation of the probation conditions and inability to comply with a monetary direction.

While wilful violation might result in consequences under Section 9 of the Act, inability to pay an amount, by itself, could not be treated as deliberate violation. Hence, benefit of violation once granted could not be withdrawn merely because an appellant was unable to arrange such amount.

“Such a consequence would make the benefit of probation dependent upon the financial capacity of the offender. In the present case, there is no material to show that the appellant deliberately failed to comply with the monetary direction or that he otherwise violated the conditions of probation. His inability to arrange the amount of Rs.10,000/- has resulted in his incarceration. In these circumstances, the mere failure to pay the amount towards prosecution expenses cannot, in the opinion of this Court, be treated as sufficient ground for withdrawing the benefit of probation already granted to him.”

The Court further held that the amount earmarked for compensation of victim under Section 5 was distinct from the remaining amount towards prosecution expenses, and the appellant's financial incapacity to deposit the latter could not have resulted in such a serious consequence like his incarceration.

Accordingly, the trial court's order was set aside, with a direction to dispense with the monetary condition, and the appellant was directed to be released.