First time offender

Who are ‘First Time Offenders’

A first time offender, often referred to as a ‘first offender’ is someone who has been officially judged to be guilty of a crime for the first time. Though they have been found guilty for the offence in question and shall/ have been convicted, they have no previous criminal record.

Official Definition of ‘First Time Offenders’

The term ‘first time offenders’ finds mention in multiple places and has largely been defined similarly over time across different sources.

‘First Time Offenders’ as defined in Legislation

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in § 239 and 479 describes a ‘first-time offender’ as someone who has not been convicted of any offence in the past. Though the Code of Criminal Procedure, 1973 (CrPC) does not explicitly mention the term, in § 360 it mentions offenders against whom ‘no previous conviction is proved’ which is considered to be the origin of the BNSS definition. Lastly, The Probation of Offenders Act, 1958, in § 3 mentions a category of offenders against whom ‘no previous conviction is proved’.

‘First Time Offenders’ as defined in Reports

The Standing Committee of Home Affairs in 2023 conducted an analysis of the erstwhile CrPC when reviewing the draft bill of BNSS. Here they mention clause 481, wherein they defined first time offenders again as one ‘who has never been convicted of any offence in the past’. This shows a common thread in legislative development that defines first time offenders and those with no previous convictions, using largely the same language over the decades.

Provisions related to the Protection of ‘First Time Offenders’

After the release of the new criminal laws, the government has put into motion many different provisions for the protection of first time offenders.

Probation of Offenders Act, 1958

• § 3 of the Act gives courts the authority to release criminals after only a warning if the offence is related to theft, criminal misappropriation or cheating or if it is punishable by maximum two-year imprisonment, a fine, or both. The court will here consider whether the person is a first-time offender (no previous conviction is proved against him) while considering factors such as character of the offender, nature of the offence, etc.
• As per § 5 of the Act, if an offender is discharged under § 3 of the act they may be compelled to pay costs and compensation for the loss they caused before their release.
• These provisions showcase the state’s shift away from retributive jail sentences towards reintegrating offenders into society. § 3 highlights the focus on first-time offenders (for certain types of offences) for the purpose of rehabilitation.
• These provisions were perhaps the oldest form of protection for first-time offenders. The government has developed newer measures to provide further rehabilitation for first-time offenders.

Bail Provisions

• As per § 479 of the BNSS first-time offenders shall be released on bond by the Court, if they have undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law.
• The section also provides that those who are not first time offenders shall be released on bail through bond (personal bond or an undertaking for release without surety) or if the court so orders by bail bond (undertaking for release with surety) by the Court, if they have undergone detention for the period extending up to one-half of the maximum period, provided that the offence is not one that is punished by death or life imprisonment as one of the options.
• However, the public prosecutor can oppose the release beyond one-half of the maximum period, however this cannot extend beyond the maximum period of punishment.
• Hence, undertrial first-time offenders are given a lower jail time than those who have been convicted before. Further, the public prosecutor cannot oppose their release.
• Further, the Supreme Court has stated that this provision for the protection of first-time offenders has been retrospectively thus extending these provisions to those who were arrested before 1st July 2023.

Prison Architecture

• As per the Ministry of Home Affairs’ directions to Director General/ Inspector General of Prisons of all states and union territories, prisoners must be classified into 10 categories of which one category is that of first time offenders.
• This classification is then used to create separate lodging for these different categories in barracks/enclosures/cells with a view to protect other prisoners from negative influence and radicalised thought process of the hardened/habitual/high risk prisoners. Dangerous and high-risk prisoners shall be accommodated in special cells or high security prisons.
• This institutional point is further emphasised since the Model Prisons and Correctional Services Act required that wherever there is no provision of a stand-alone High Security Prison, high risk offenders, hardened criminals and habitual offenders must be segregated and lodged in separate barracks or cells of the jail, which shall have a provision of keeping them away from mingling with other prison inmates, young offenders and first time offenders.
• This provision is related to the protection of other categories of offenders such as first-time offenders and seems to suggest that they require protection from dangerous and high-risk prisoners, hence showing that the government views them as low-risk prisoners.
• This initiative is demonstrated by the action of the Delhi government to shift 4,000 first time offenders related to petty crimes to special jails for them.

Conviction and Punishment

• The Ministry of Home Affairs also released a report on first-time offenders. This included a short description on the punishment that should be received by first-time offenders. This includes-
  • Non-custodial punishment such as community service, and counselling for eligible individuals, fostering personal growth and societal reintegration through the legal framework.
  • First-time offenders are to be given relaxed punishment (one-fourth and one-sixth of stipulated punishment) in plea bargaining.
• From these stipulations it is visible that first-time offenders should be offered much less severe punishments than others, as per the government.

Categorisation of Prisoners

The image demonstrates how a new prisoner being registered is categorised as ‘habitual or casual along with the type of security that they require.

• To facilitate the above the government categorises prisoners in its database called the Prison Management System.
• The following pictures demonstrate this effort.

• As highlighted in the red box, the new prisoner is categorised as ‘habitual or casual along with the type of security that they require.
• Though this does not explicitly refer to first-time offenders, it can be inferred that they would be included in the ‘casual offender’ category.

New prisoners when being registered can be designated as a convict and their information shall continue to exist on these government databases which allows one to determine whether someone is a first time offender or not.

• Further, a prisoner can be designated as a convict and their information shall continue to exist on these government databases which allows one to determine whether someone is a first time offender or not.
• The categorisation and tracking system in the Prison Management System (PMS) also plays a crucial role in protecting first-time offenders. By distinguishing between habitual and casual offenders, the system ensures that first-time offenders—likely categorised as casual offenders—are identified separately from those with a history of repeated criminal behaviour.
• This distinction allows prison authorities to tailor rehabilitation programs and security measures accordingly, reducing the likelihood of first-time offenders being exposed to hardened criminals or negative influences. Such separation helps preserve their chances for reform and reintegration into society, aligning with the broader goals of justice and rehabilitation.

International Experience

United States of America

The United States has different laws that protect first-time offenders who have committed certain types of offences from serving jail time. Some of these are-

Federal First Offenders Act

• This special law applies to certain federal drug charges which help the offender avoid a permanent criminal record and, potentially, prison time. Under this act a first time offender is someone who is convicted for a non-violent drug related crime, who does not have a prior conviction relating to a controlled substance, and has not been offered treatment as a first offender previously under any federal or state program.
• The Act involves a programme to rehabilitate the first-time offender through a consent based probation period which can last up to one year. However, whether or not the offender is allowed access to the probation programme depends on the discretion of the judge who can assess the offender’s character, the nature and circumstances of the offence; the seriousness of the offence, and the need for punishment to deny a person access to the programme.
• Once the probation period has successfully ended with the offender following the terms of the probation, the criminal charges of the offender shall be dismissed, their conviction and charges can be dismissed and their criminal record (including arrest details) may be expunged. This record will not be available to the public but it will still remain with the Department of Justice to ensure that an offender does not get benefit under this section twice.

Government Directives

• As per 28 U.S.C. § 994(j) Directive if the defendant is a nonviolent first offender and the offence they are convicted of has a punishment of less than 15 months, the court should consider imposing a sentence other than a sentence of imprisonment. Possible alternatives to imprisonment in these cases include probation, community confinement or home detention.
• The amendment also introduces the concept of the zero-point offender, who is slightly different from the first-time offender.
• To qualify as a zero-point offender, an individual must-
  • have no prior convictions (criminal history points),
  • not have been involved in terrorism or violent crime,
  • not have caused death or bodily injury or involved the use of a deadly weapon,
  • not have been involved in a sex offence or hate crime,
  • not have committed an offence related to a vulnerable victim, and
  • not have caused severe financial loss.
• The effect of this amendment is that the sentencing for such offenders shall be reduced by 2 levels, in short this means that the offender should be provided a reduced sentence in comparison to others. To elaborate, the US Sentencing chart provides for 4 Zones of sentencing first from A to D which increase in prison time, the offenders ‘offence level’ determined as per the US sentencing guidelines would be reduced by 2 points (such as from 13 to 11) which may shift them to a lower zone and warrant a lower period of incarceration.
• This amendment reduces sentencing recommendations for a certain type of first-time offenders, recognising the importance of providing alternatives to lengthy incarceration for those who pose a lower risk to society.

These provisions aim to balance justice and rehabilitation by protecting first-time offenders from unnecessary incarceration while addressing the nature of their offences. By offering alternatives such as probation, reduced sentencing, and expungement of records, these laws promote rehabilitation and reintegration into society. They acknowledge that individuals with minimal criminal history and non-violent offences pose a lower risk to public safety, emphasising restorative justice over punitive measures. This approach encourages reform, minimises the long-term consequences of a criminal record, and reduces the burden on the prison system while ensuring accountability for the offender’s actions.

Challenges & Way Ahead

The concept of first-time offenders has gained significant traction in current time with India has taken notable steps, such incorporating provisions under the BNSS. However, challenges remain in translating these ideals into effective practice. The complexities of India's diverse judicial system, combined with infrastructural and societal limitations, often hinder the consistent application of these provisions. To ensure a more rehabilitative justice system, it is imperative to examine the challenges in the current framework and identify pathways for reform.

• Limited Awareness and Uniformity:
  • There is a lack of widespread understanding and application of laws like the Probation of Offenders Act, 1958. Many courts and stakeholders fail to prioritise these provisions, often resulting in unnecessary incarceration for first-time offenders.
  • No uniform guidelines exist for defining or handling first-time offenders across all states and judicial bodies, leading to inconsistent application of justice.
• Inadequate Infrastructure:
  • Prison systems in India are overcrowded, and despite directives for segregation, facilities to house first-time offenders separately are insufficient in many regions.
  • Proper rehabilitation infrastructure, such as counselling centres and community service programs, remains underdeveloped.
• Judicial Discretion and Bias:
  • The application of probation or leniency often depends heavily on the judge’s discretion, which may be influenced by subjective factors like the nature of the offence or societal pressures for retributive justice. This can lead to disparities in sentencing for similar offences.
• Stigma and Recidivism:
  • First-time offenders, even after benefiting from probation or alternative sentencing, often face societal stigma, limiting their reintegration into society.
• Lack of Data and Monitoring:
  • Comprehensive data on first-time offenders and the outcomes of alternative sentencing are limited. Without robust data, evaluating the success of rehabilitation efforts becomes challenging.

Addressing the challenges in the jurisprudence for first-time offenders is essential to create a justice system that prioritises rehabilitation and reintegration over punitive measures. While India has laid the groundwork through progressive laws and policies, the need of the hour is to build upon these foundations with targeted reforms and modern practices. Using some of the following techniques Indian jurisprudence on this issue can be substantially improved-

• Strengthen Legal Frameworks:
  • Enact clear, uniform guidelines for the treatment of first-time offenders across all jurisdictions, ensuring consistency in judicial outcomes.
  • Expand the scope of laws like the Probation of Offenders Act, 1958 to include modern, non-violent crimes like cyber offences and small-scale financial frauds.
• Focus on Rehabilitation:
  • Invest in creating and maintaining robust rehabilitation programs, such as vocational training, counselling, and community service, to facilitate reintegration into society.
  • Establish post-sentencing support mechanisms to reduce recidivism rates and encourage societal acceptance.
• Enhanced Prison Infrastructure:
  • Ensure proper classification and segregation of first-time offenders in prisons, with separate facilities that minimize exposure to hardened criminals.
• Collaborate with International Best Practices:
  • Adapt practices from countries like the U.S., where structured probation systems, sentencing guidelines, and rehabilitative programs for first-time offenders are effectively implemented.
  • Emphasise the “zero-point offender” concept, reducing punitive measures for offenders with no prior criminal history, rather than merely following probation and bail.

By addressing these challenges with structured reforms and inclusive policies, India can create a more balanced and forward-looking approach to the jurisprudence on first-time offenders, emphasising rehabilitation over retribution.