An indigent legal-aid appellant was sent to jail only because he could not deposit Rs 10,000; the Rajasthan High Court has held that a convict’s inability to pay prosecution costs cannot revoke probation, and has set that order aside.
Jodhpur: Probation granted to a convict has been restored by the Rajasthan High Court after a trial court withdrew it, and sent him to prison, when he failed to deposit Rs 10,000 towards the costs of the proceedings. Financial incapacity alone, the High Court held, is not a deliberate violation of probation conditions [S. v. State of Rajasthan].
Justice Farjand Ali partly allowed S.B. Criminal Appeal No. 1466/2026 by a judgment dated September 28, 2026. Advocate Daya Gulsar, provided through the Rajasthan High Court Legal Services Committee, appeared for the appellant, and Deputy Government Advocate Ramesh Devasi for the State.
Wilful violation and inability to pay are not the same
A person who wilfully violates the conditions of probation may face the consequences under Section 9, the Court said, but inability to pay, by itself, is not a deliberate violation unless there is material showing the failure was wilful. The Bench observed:
“Such a consequence would make the benefit of probation dependent upon the financial capacity of the offender.”
No material showed that the appellant had deliberately failed to comply, misused his liberty, repeated the offence or otherwise breached the conditions, the Court found. It recorded:
“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 compensation to the injured persons was a distinct component, the Court stressed, and it was not affected by dispensing with the remaining prosecution expenses. Were financial inability alone to lead to jail, it said, probation would depend on the offender’s capacity to pay rather than on his suitability for reform.
From probation to prison over Rs 10,000
On May 2, 2026, the Additional Sessions Judge, Rawatsar, District Hanumangarh, convicted the appellant and co-accused under Sections 148, 452, 341, 323/149, 325/149 and 427 of the Indian Penal Code. Considering their age, antecedents and other circumstances, the trial court released them on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958. Under Section 5, each of the five convicts was to deposit Rs 10,000, an aggregate of Rs 50,000: Rs 30,000 for the wife of one injured man, Rs 10,000 for another injured person, and the balance towards prosecution expenses.
The appellant could not pay. On June 29, 2026 the trial court treated the non-payment as non-compliance with the probation conditions, withdrew the benefit of probation and imposed substantive sentences for the original offences. He was taken into custody and had been in jail for more than three months when the appeal was heard. He did not press his challenge to the conviction and sought relief only against the consequence of the default.
What the Probation of Offenders Act provides
Section 4 lets a court release an offender on probation of good conduct instead of sentencing him at once, the Court noted in going through the scheme of the Act. Section 5 allows a further order to pay compensation for loss or injury, or such costs of the proceedings as the court considers reasonable, and sub-section (2) provides for recovery of that amount as a fine. Section 9 separately deals with failure to observe the conditions of the bond and its consequences. Section 5 itself, the Bench observed, does not say that non-payment shall lead to imprisonment.
The same Judge has taken a similar view in an earlier ruling under the Negotiable Instruments Act, holding that costs imposed on compounding of an offence are regulatory in nature and cannot be enforced in a way that deprives a person of liberty because of financial incapacity, in the absence of wilful default.
Release forthwith
The conviction under the IPC provisions was affirmed. Section 4 probation was restored, the remaining Rs 10,000 towards prosecution expenses was dispensed with, and the June 29, 2026 order, along with the sentences and fines that followed from it, was set aside. The appellant is to be released forthwith, if not required in any other case, on furnishing the bond and surety fixed by the trial court, and a copy of the judgment was sent to the trial court for compliance.
Reform, not a penalty on poverty
The Court’s reading keeps a reformative measure from turning into a penalty on poverty. A monetary direction attached to probation is a matter for recovery as a fine under Section 5(2), and the Court said it cannot be converted into imprisonment unless the default is shown to be deliberate. The decision was limited to the peculiar facts: a legal-aid appellant, a distinct compensation component and no misuse of liberty.
Case Title: S. v. State of Rajasthan [S.B. Criminal Appeal (SB) No. 1466/2026]
Bench: Justice Farjand Ali, Rajasthan High Court (Jodhpur)
Date of Judgment: September 28, 2026
Appearances: Advocate Daya Gulsar for the appellant; Deputy Government Advocate Ramesh Devasi for the State