Probation as an Alternative to Imprisonment: Contextual Analysis

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Probation is a highly efficacious legal approach to offenders to correct and rehabilitate them from committing crimes. Though we have an old law of 1960 in our jurisprudence of criminal justice system, the application of this law was unknown to us. In the Indian sub-continent, India introduced the Act in 1958. Two years later Pakistan followed it as Ordinance no. XLV of 1960. After the independence of Bangladesh, the government of Bangabandhu Sheikh Mujibur Rahman initiated a move to make the law effective. The law was updated in 1973. The Ordinance was amended in 1964. The Rule of the Probation of Offenders Ordinance was promulgated in 1971.

The practice of probation has been aphoristically described by honourable Justice Imman Ali. In his words: “The use of probation by our Trial Courts is very rare, possibly due to the punitive attitude of the learned Judges which appears to be prevalent across the country.” For giving essence, the Supreme Court of Bangladesh has taken eventual initiative to issue circular regarding probation vide memo no J-01/2-2019 dated February 12, 2019 inspiring all sub-ordinate courts to practice probation in dispensation of justice. Now probation is very unique and well known legal tool to the people across the country.

The gradual application of The Probation of Offenders Ordinance, 1960 (hereinafter Ordinance-1960) to prevent and control crimes is a good progress. It is important to take into consideration the age and surrounding environment while punishing offenders. The word probation comes from Latin 'probo'. Probation means I can prove my ability. This ability means utilizing an opportunity of correcting mistakes. The citizen will prove that he or she is not a breaker of law and able to lead life in compliance with the laws. In such prevailing situations, probation is a good option to offenders to be corrected and rehabilitated from crimes. Moreover, convicting the accused is not the only purpose of law and judiciary. The law has given an alternative scope to be resorted too. The Probation of Offenders Ordinance, 1960 has brought an ample scope for discharging an offender conditionally or sending him in probation in certain cases.

The 1960 Ordinance states that the purpose of probation is to “prevent a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law abiding citizen” [section 5(2)]. The High Court Division has also articulated the purpose of probation in the case of Abdul Khaleque vs. Hazera Begum and Another [58 DLR 322 (2006)] that “the penal system of Bangladesh is essentially reformative in character as opposed to retributive. The Probation of Offenders Ordinance is a prime example of such a policy. If a sentence of probation is imposed for a period of time, then it is likely to be more of a deterrent and will have a rehabilitating effect which will fulfill the intention of the legislature.”

International law also inspires the states to make laws correcting offenders in an alternative way other than custody in prison. In the case of Md. Moti Matbor vs The State [Criminal Revision No. 1651 of 2017], honourable High Court Division (HCD) held citing international legal instrument that “in Article 7.1 of the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (adopted by the General Assembly on 14.12.1990) emphasis has been given on obtaining report prepared by the competent authority for the purpose of passing non-custodial order by judicial authority.”

The Ordinance 1960 postulates two types in discharging accused through the courts. One is discharge under section 4 which requires no condition to be followed and another is probation under section 5 which requires some conditions to be followed during the probation. Upon certain conditions provided by section 4 of the Ordinance, the Court may discharge any person, not proved to have been previously convicted, convicted of an offence punishable with imprisonment for not more than two years, after its admonition or subject to the condition that he enters into a bond, with or without sureties, for committing no offence and being of good behaviour during such period not exceeding one year from the date of the order. The court must follow the obligation of section 4(3) that “before making an order for conditional discharge, the court shall explain to the offender in ordinary language that if he commits any offence or does not remain of good behaviour during the period of conditional discharge he will be liable to be sentenced for the original offence.”

Section 5 of the Ordinance 1960 deals with the provisions and requirements of granting probation order. As per mandate of section 5, any male person convicted of an offence not being an offence under Chapter VI or Chapter VII of the Penal Code, or under Sections 216A, 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455 or 458 of that Code, or an offence punishable with death or imprisonment for life, can take the opportunity of this ordinance. Any female person convicted of any offence other than an offence punishable with death can also take advantage of the Probation of Offenders Ordinance, 1960.

The rationale for probation is to facilitate social reintegration. In considering whether to grant probation, Courts generally consider the following factors in granting probation, the age, character, antecedents or physical or mental condition of the offender; and the nature of the offence or any extenuating circumstances attending the commission of the offence [section 4(1)]. However, the Court will only pass a probation order under the Ordinance 1960 on being satisfied that the offender or one of her/his sureties (if any) has a fixed place of abode or a regular occupation within the local limits of its jurisdiction and is likely to continue in such place of abode or such occupation during the period of probation [proviso of section 5(1) (b)].

Section 6 of the Ordinance contains provisions empowering the court to direct an offender, against whom a conditional discharge order under section 4 of the Ordinance or a probation order under section 5 of the Ordinance is made, to pay compensation or damages to the person or persons injured by the offence committed by the offender. But the amount of compensation, damages and costs so awarded shall in no case exceed the amount of fine which the court might have imposed in respect of the offence. For encouraging probation in personal cases where victim has interest in the case personally, the power of awarding compensation by the court should be extended on reasonable basis.

The supervision and rehabilitation of the accused on probation is a great challenge in our social and administrative context. The Probation Officer is appointed and deputed under the Social Welfare Department. In the District level, there are a few probation officers. Most of the posts are vacant for long time. The Upazila Social Welfare Officer is generally in-charge of the probation officer of the concerned Upazila. For such prevailing circumstances, maintaining conditions imposed by the courts and time to time supervision on the accused on probation is a basic impediment for accelerating the goals of probation. A Probation Officer is authorized to conduct pre-sentencing inquiry (PSI), social inquiry, to monitor probationers and to report the status of the probationer to the Court.

According to section 13 of the Ordinance 1960, the duties of a Probation Officer are to visit or receive visits from the offender at such reasonable intervals, to see that the offender observes the conditions of the order of probation, to report to the competent authority as to the behaviour of the offender, to advise, assist and befriend the offender, and when necessary endeavour to find her or him suitable employment and to perform any other duty this may be prescribed by the Rules made under this Ordinance.

Probation is very important legal action in our criminal justice system to make offenders a good human being, law abiding citizen and corrected person of the society. The Prison of Bangladesh has accommodation for almost 30 thousand prisoners. But in an average 80-90 thousand prisoners live in those prisons. As a result of holding more inmates than the capacity, prisons become incompatible for prisoners and providing proper service and facilities became a tough task.

The honourable High Court Division of Pakistan held in the case of State vs. Mazdoor (PLD 1969 Peshwar 226) that “the object of punishing an offender is the prevention of offences or reformation of the offender. Punishment would be a greater evil, if instead of reforming an offender; it is likely to harm the offender to repetition of crime with the possibility of irreparable injury to him. The provisions of the Probation of Offenders Ordinance are, thus, intended to enable the Court to carry out the object of reformation and give the accused person a chance of reformation which he would lose by being incarcerated in the prison”.

In recent time, the practice of probation orders has been increasing across the country. The honourble HC recently delivered a landmark judgment in a drug case. It was second probation order from High Court and the first one was in 2006. One Moti Matbor, a convict sentenced to five years in jail will look after his old mother (age 75) and his children. He will be under watch of a probation officer. If the convicted person behaves satisfactorily, he will be acquitted of the rest of the punishment.

The Sub-ordinate Courts, specially Magistrate Courts, have been practicing probation orders imposing some innovative and reformative conditions such as tree plantation, watching movies on liberation war and country, reading books on our liberation war, history and the father of the nation, not carrying-taking-selling drugs, engaging social works and contributing in anti-narcotics campaign etc. The probation orders have been issued firstly in Magura by Chief Judicial Magistrate, then Rajshahi, Sunamganj, Bandarban, Cox’s Bazar, Feni, Narayonganj, Sathkhira and other districts too. On the foregoing discussions, we can expect that our judiciary will keep an iconic role to promote probation and make a change in the mind of offenders to come back in their right path to be corrected and law abiding citizen.

(The writer acknowledges with gratitude the different sources of information.)

The Writer is a member of Bangladesh Judicial Service and Senior Judicial Magistrate, Feni.

  • High Court
  • Law
  • Bangabandhu Sheikh Mujibur Rahman

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