By Harisur Rohoman
In the criminal justice system, if a person is found guilty, the court sends him to jail. But if he is given a chance to live a normal life without being sent to prison even after being found guilty in the court, it is said to be released on probation. Probation usually means suspending an offender’s sentence of imprisonment and providing normal life under certain conditions.
The maxim ‘hate the sin, not the sinner’ is related to the idea of release on probation. The purpose of release on probation is to provide the offender with a chance for improvement. Since probation is a conditional release, if the offender violates the conditions, the court may send the offender back to jail. Usually, in cases of juvenile delinquency and minor offences for the first time, the court grants probation release under the supervision and condition of a probation officer without sending the offender to jail. In this process, the criminal develops behaviour as a law abiding citizen. Most of the cases, it is seen that after being sent to jail for petty crimes, offenders commit more crimes. Besides, as a result of being sent to jail, the negative perception about that person is created in the society. So, he can no longer go back to his normal life. Because the people of the society label him as ‘criminal’, and every other person in the society avoids him. It makes his life miserable.
Section 4 of the Probation of Offenders Ordinance 1960 allows the court to grant probation for a maximum of 1 year depending on the age, the physical and mental condition of the offender, and the type and nature of the offence if the offender commits the crime for the first time and is liable to imprisonment for a term not exceeding two years. According to section 4 (3), before ordering probation, the court should explain to the offender in simple language that if the offender commits the offence again or does not do good deeds, the court will punish him. On the other hand, male offenders will not be released on probation as per section 5 of The Probation of Offenders Ordinance, 1960, which provides for some serious offences under the Penal Code 1860. And women offenders can be considered for release on probation for all crimes except the death penalty. According to this law, the court may grant conditional probation to a woman for 1-3 years who is involved in a first-time offence and a minor offence. Children and adolescents are also eligible for release on probation under the Children Act 2013.
But the biggest problem with the law is that it is not adequately enforced. In the Nur Mohammad vs Government and other (15 SCOB [2021] AD), the Appellate Division regreted the indifference of the courts in enforcing the probation law. The court further said that if this law had been appropriately implemented in the trial court, then the case would not have come to the appellate division. Non enforcement of the said law is not only regretful but also contrary to the prevailing law.
But the hope is that in recent times, many judges in our country have set a precedent by granting release on probation. On January 20, 2021, the third court in Satkhira’s Senior Judicial Magistrate sentenced a convict to six months in prison in a drug case. Subsequently, the accused made apology to the court, and he seeks an opportunity for improvement, the court granted him release on the condition that the accused will not be allowed to use drugs, but he has to campaign against drugs, plant trees, campaign against child marriage, educate his children and take care of his mother. Moreover, a person sentenced to 1 year in Rajshahi was released, considering his age, educational qualifications, and type of crime, on the condition that he should provide education to three illiterate persons in his area.
Proper implementation of release on probation will create positive change in society. Because, if the criminals are sent to jail, they can be associated with more prominent criminals and be involved in more aggravated crimes. Therefore, release on probation should be appropriately applied because there is no guarantee that criminals will be corrected only if they are kept in jail. So, in order to convert criminal behaviour as law-abiding citizens, probation must be appropriately enforced.
Harisur Rohoman, student of LLB program, Department of Law and Human Rights, University of Asia Pacific.
