The Probation System in Bangladesh
What is Probation?
Probation is variably defined under different laws as an “order for conditional discharge” or “an order requiring [the offender] to be under the supervision of Probation Officer”.
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”.
The High Court Division has also articulated the purpose of probation as follows;
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 fulfil the intention of the legislature
Notably, the Children Act, 2013 empowers the National Child Welfare Board to devise a policy, strategy and implementation plan for integration and rehabilitation of children in conflict with the law. It also provides a safeguard against any person on probation being stigmatized as convicted by providing that probation is to be “deemed not to be a conviction”, especially for those who are less than eighteen years of age. The probation system also allows the competent court to “order the offender conditionally discharged to pay compensation or damages for loss or injury caused to any person by the offence”.
In short, the purposes of probation in Bangladesh are the prevention of offences and recidivism as well as fostering rehabilitation, reintegration, non-stigmatization of offenders, and, in some cases, restitution to the victims.
Offences for which Probation can be granted
In theory, probation is a form of sentencing applicable to offenders who are found guilty of offences (usually non-grievous). Initially sections 562
to 564 of the CrPC dealt with first offenders, and enabled special provision for sentencing was applied. But these sections have been repealed by section 16 of the Probation of Offenders Ordinance,1960.
Progressively, with increasing liberalization of penal theory, probation has been further extended for particular offenders based on their gender and age, in other words for women and children.
Adult men convicted of the following offences are not entitled to be released on probation:
· Offences punishable with death or imprisonment for life;
· Offences against the State (Chapter VI of the Penal Code);
· Offences relating to the Army, Navy and Air Force (Chapter VII of the Penal Code);
· Offence of harbouring robbers or dacoits (section 216A of the Penal Code);
· Offence of causing hurt by means of poison, etc, with intent to commit an offence (section 328 of the Penal Code);
· Theft after preparation made for causing death, hurt or restraint, in order to commit theft (section 382 of the Penal Code);
· Extortion by putting a person in fear of death or grievous hurt (section 386 of the Penal Code);
· Putting person in fear of death or of grievous hurt, in order to commit extortion (section 387 of the Penal Code);
· Extortion by threat of accusation of an offence punishable with death or
Imprisonment, etc. (sections 388-389 of the Penal Code);
·Robbery (section 392 of the Penal Code);
·Attempt to commit robbery (section 393 of the Penal Code);
·Robbery or dacoity, with attempt to cause death or grievous hurt (section 397 of the Penal Code);
·Attempt to commit robbery or dacoity when armed with deadly weapon (section 398 of the Penal Code);
·Making preparation to commit dacoity (section 399 of the Penal Code);
·Punishment for belonging to gang of thieves (section 401 of the Penal Code);
·Assembling for purpose of committing dacoity (section 402 of the Penal Code);
·Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint (section 455 of the Penal Code); and
·Lurking, house-trespass or house-breaking by night, after preparation for hurt, assault or wrongful restraint (section 458 of the Penal Code). Women offenders may be granted probation in case of any offence, other than those punishable by death, pursuant to section 5(1) (b) of the 1960 Ordinance, which provides as follows: “All convicted female persons can be granted probation other than convicted for an offence punishable with death.” As for children, probation may be granted in respect of all offences subject to the discretion of the Juvenile Court. In exceptional cases, children in conflict with law may be sentenced to alternatives to imprisonment (e.g.diversion, alternative care, safe custody), or institutional correction.
Factors associated with granting probation
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. However, the Court will only pass a probation order under the 1960 Ordinance 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.
In passing sentence on a child, the Court takes into account the following factors:
(a) her/his age and sex;
(b) her/his physical and mental condition;
(c) her/his educational qualifications;
(d) her/his social, cultural and ethnic identity;
(e) her/his financial condition;
(f) her/his lifestyle and that of their family;
g)Reasons behind the commission of the offence, information on association, overall condition and context;
(h) her/his opinion;
(i) Social inquiry report; and
(j) Consideration of issues necessary for correction of the child or for her/his best interest.
The Probation Officer
A Probation Officer is recruited by the DSS under the Ministry of Social Welfare. S/he is authorized to conduct social inquiry, to monitor probationers, and to report the status of the probationer to the Court as well as to the DSS.
Duties and Responsibilities of a Probation Officer
According to section 13 of the 1960 Ordinance, the duties of a Probation Officer are as follows:
(a) to visit or receive visits from the offender at such reasonable intervals as may be specified in the probation order or, subject thereto, as the government may think fit;
(b) to see that the offender observes the conditions of the order of probation;
(c) to report to the competent authority as to the behaviour of the offender;
(d) to advise, assist and befriend the offender, and when necessary endeavour to find her or him suitable employment; and
(e) to perform any other duty this may be prescribed by the Rules made under this Ordinance.
Each Probation Officer is required to operate “within such local area or in respect of such cases or class of cases of probationers as may be specified by the Director of Social Welfare”.
The Probation of Offenders Rules, 1971 further imposes these specific duties upon every Probation Officer:
(i) explain to every probationer placed under her/his charge, the terms and conditions of the probation order made in respect of such probationer, and if so deemed necessary, by warning, endeavour to ensure the observance thereof by the probationer;
(ii) in the first two months of probation, meet the probationer at least once in a fortnight, and thereafter, subject to the probation order
or any general or special order of the Director keep in close touch with the probationer, meet her/him frequently, make enquiries into her/his conduct, mode of life and environment, and wherever practicable, visit her/his home from time to time;
(iii)if any probationer under her/his charge be out of employment, endeavour to find suitable employment for her/him and assist, befriend and advise her/him and strive to improve her/his conduct and general condition of living;
(iv)encourage every probationer placed under her/his supervision to make use of any recognized agency, statutory or voluntary, which might contribute towards her/his welfare and general well-being and to take advantage of the social, recreational and educational facilities which such agencies might provide;
(v) where a probationer under her/his supervision, who has executed a bond with sureties (or with conditions), is found to have committed breach of the terms of the bond or to have otherwise misconducted her/himself, bring such breach or misconduct to the notice of the Court and the probationer’s sureties;
(vi) maintain the books and registers and submit reports prescribed by the rules; and
(vii) Carry out the instructions of the Court in regard to any probationer placed by the Court under her/his supervision.
The 1960 Ordinance applies to all offenders irrespective of their age and sex as it does not specifically state that it is applicable only to adult offenders. However, the probation scheme applied to children does not strictly follow the Probation of Offenders Ordinance. The provisions of the Ordinance are in addition to and not in derogation of the Children Act. Therefore, the probation process is different for adult offenders (both adult men and adult women) and for children in conflict with law.