An Overview of the Probation System in Bangladesh

Introduction?

The probation system in Bangladesh represents a critical component of the criminal justice system, designed to offer an alternative to incarceration for certain offenders. Established to facilitate the reintegration of offenders into society while ensuring public safety, the probation system aims to balance punishment with rehabilitation. Since the mid-19th century, there has been a growing recognition of the need for reformative approaches beyond traditional incarceration. The process of entering the criminal justice system is a crucial juncture, as every civilized society strives to judge and penalize offenders. However, severe punishment alone cannot fully deter a person from committing crimes or ensure their successful reintegration into society. Recognizing this limitation, criminologists, modern thinkers, and social workers have developed alternative methods of rehabilitation, focusing on constructive reform rather than mere punishment. Probation is one such legal reformative method, wherein an offender's sentence is suspended under the condition that they demonstrate improved behavior and character while being supervised by a probation officer within the community. This approach aims to restore the offender’s behavior through structured guidance and support.??

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”.?

Establishment of Probation Services in Bangladesh?

The Probation of Offenders Ordinance, enacted in 1960, introduced probation as a correctional measure in Bangladesh. During the Second Five-Year Plan (1962), two initiatives were launched: the Probation of Offenders Project and the After Care Service Project. Initially, these programs were implemented separately in ten locations across the country. In 1965, they were merged into a single initiative, and since then, 21 units have been operating in various district headquarters under the supervision of the Social Service Department of the Bangladesh Government.?

The 1960 Probation of Offenders Ordinance specified the creation of a 'Probation Department' responsible for administering the ordinance. This department was tasked with appointing probation officers and establishing their qualifications as outlined in the ordinance's regulations. Following amendments by the former East Pakistan Assembly in 1964, the ordinance was renamed the Probation of Offenders Act of 1964. Consequently, the Directorate of Social Welfare, now known as the Social Service Department, assumed responsibility for administering probation services. This department oversees not only the probation program but also other services such as casework, group work, community development, and general welfare.?

Offences for Which Probation can be Granted??

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.?

Need for a Probation System in Bangladesh?

The reintegration of offenders into society after their release is often challenging due to the stigma attached to their past formal punishment. The transition process is influenced by the socio-legal environment, suggesting that the conditions for an offender’s reentry into the community should be carefully considered. Various alternative methods for releasing offenders, such as suspended sentences, probation, early release, and fines, have emerged. However, these methods often fall short or may be counterproductive.?

Probation and restitution stand out as approaches grounded in legal philosophy aimed at rehabilitating individuals who are not inherently criminal. These methods focus on those who are relatively inexperienced in criminal behavior, with the aim of helping them avoid stigmatization. Probation, in particular, involves deferring the final verdict or execution of a sentence under specific conditions set by the court and monitored by a probation officer. This approach reflects the belief that attitudes and behavior are better changed through meaningful guidance and human interaction rather than mere punishment.?

Probation allows offenders, especially first-time or juvenile offenders, to live within the community with their families, relatives, or foster care while under the supervision of a probation officer. This setup facilitates their adjustment to socially acceptable behavior without being confined to a correctional facility.?

The social aspects of probation are threefold: (1) it allows the probationer to lead a normal life in the community and adapt to acceptable behaviors without imprisonment; (2) it is granted based on a social investigation by the court, which assesses the likelihood of the probationer leading a lawful life; and (3) it involves supervised adjustment with the help of a probation officer.?

The High Court Division underscores that the probation system in Bangladesh is reformative rather than retributive. The Probation of Offenders Ordinance exemplifies this reformative approach, aiming to deter recidivism and promote rehabilitation through probation sentences.?

The Children Act of 2013 further supports this reformative approach by tasking the National Child Welfare Board with creating policies and strategies for the rehabilitation and integration of juvenile offenders. It ensures that probation is not stigmatizing by stating that it is "deemed not to be a conviction" for those under 18. Additionally, courts may order offenders to pay compensation for any harm caused by their offenses, with the total amount not exceeding what could have been imposed as a fine.?

The goals of probation in Bangladesh include preventing repeat offenses, facilitating reintegration, reducing stigma, and compensating victims where applicable.?

Factors Influencing the Granting or Denial of Probation?

A) Factors Favoring the Granting of Probation?

Probation may be granted based on various considerations, including-?

According to Section 4 of "The Probation of Offenders Ordinance, 1960":?

• Absence of a prior conviction report for the individual.?

• A conviction report with a sentence of no more than two years in prison.?

• The offender's gender.?

• The offender’s personal characteristics.?

• The offender’s physical health.?

• The offender’s mental health.?

• The nature of the offense.?

Under Section 34(6) of The Children Act, 2013, factors for granting probation or making decisions for a child include:?

• Age.?

• Gender.?

• Physical health.?

• Mental health.?

• Educational background.?

• Social, cultural, and ethnic background.?

• Lifestyle of the individual and their family.?

• Reasons for the offense.?

• The individual’s perspective.?

• Findings from a social investigation.?

B) Factors Leading to the Denial of Probation?

Probation is generally not granted to adults in the following situations:?

• When the individual is sentenced to death or life imprisonment.?

• When the offense is against the State.?

• When the offender is affiliated with the Army, Navy, or Air Force.?

• When accused of harboring robbers or dacoits.?

• When accused of inflicting harm using poison or similar means with intent to commit a crime.?

• When charged with theft involving preparations to cause death, harm, or restraint.?

• When accused of extortion through threats of death or serious injury.?

• When accused of putting someone in fear of death or serious injury to commit extortion.?

• When accused of extortion involving threats of accusations punishable by death or imprisonment.?

• When accused of robbery or attempted robbery.?

• When accused of robbery or dacoity with intent to cause death or serious injury.?

• When accused of attempted robbery or dacoity while armed with deadly weapons.?

• When accused of preparing to commit dacoity.?

• When sentenced for involvement in a gang of thieves.?

• When accused of assembling to commit dacoity.?

• When accused of lurking with the intent to trespass or break into a house after preparing to cause harm, assault, or restraint.?

• When accused of lurking, house-trespassing, or breaking into a house at night with similar preparations.?

How and When Probation is Granted?

A. Process for Granting Probation?

When a person is found guilty and is eligible for probation, the judge will postpone the final sentencing and direct the Probation Officer to conduct an investigation into the offender’s social and economic background. This investigation must result in a detailed pre-sentence report, as outlined in Rule 12 of the Probation Code. The Probation Officer assesses the offender’s character, socio-economic status, family dynamics, and relationships with neighbors. The investigation includes examining the offender’s physical health, personal history, mental state, and social and cultural environment. Based on this evaluation, if the Probation Officer believes that probation would be beneficial for correction, they will recommend it. If not, the offender will face traditional sentencing. The judge may grant probation if the report supports suspending the offender’s sentence.?

B. Judicial Discretion in Granting Probation?

Judges or magistrates have the discretion to grant probation on their own accord. If a judge determines that the offender is a first-time convict and their offense does not fall under the categories specified in Section 5 of the Probation Ordinance, they may grant probation for a period of one to three years. This decision is based on a review of the case file and the offender’s overall condition, subject to certain conditions being met.?

The Probation Process?

The 1960 Ordinance applies to all offenders, regardless of their age or gender, as it does not specify that it is limited to adults. However, the probation system for children does not adhere strictly to the Probation of Offenders Ordinance. Instead, the Ordinance's provisions are supplementary and do not override the stipulations of the Children Act. As a result, the probation process differs for adult offenders (both men and women) compared to children involved in legal issues.?

Probation Process for Adult Offenders (Men and Women)?

The process of granting probation to adult offenders begins prior to the final judgment or sentencing. If the court believes that an offender might benefit from probation, it will request a Pre-Sentence Report (PSR) from a designated Probation Officer. The Probation Officer is required to submit this report within a specified timeframe. Based on the PSR, if the court is persuaded that the offender will exhibit good behavior, it may issue a probation order, which involves taking a bond from the offender or their sureties for a period ranging from one to three years.?

Once the probation order is issued, a Probation Officer is assigned to supervise the probationer. It is crucial to ensure that no female offender is assigned to a male Probation Officer. After probation is granted, the Probation Officer is responsible for monitoring the probationer and reporting their progress to both the court and the department. The court will determine the frequency of these reports, such as bi-weekly or monthly, based on the risk assessment of the offender. The Probation Officer must maintain a register of probationers using Form 'A' and keep a diary to document visits and meetings with probationers and their sureties. These records are essential for assessing risks and planning effective supervision. They include a detailed and dated log of all interactions with the probationer and relevant individuals, as well as copies of all correspondence and reports related to the case.?

If the court learns of any breaches of the probation conditions, either from the Probation Officer’s report or other sources, it may revoke the probation, sentence the offender for the original offense, or continue the probation while imposing a fine. The offender has the right to appeal or seek a revision of the Probation Order under Section 5 of the Ordinance. The appellate court or revision court may either overturn or modify the Probation Order.?

Probation Process for Children in Conflict with the Law?

The probation process for children starts as soon as a child is involved in legal issues, which begins when the child is brought to the police station. The Children Act, 2013 supports appointing a female Sub-Inspector, if available, to handle cases involving children. The police officer in charge of children's affairs is responsible for notifying both the Probation Officer and the child's guardian about the child's arrest. Additionally, the police officer must provide any needed psychological and medical support and address the child's basic needs, ensuring the child's best interests are met. This includes verifying the child's age by reviewing birth certificates or other official documents.?

Once a Probation Officer becomes aware that a child is in police custody, they must undertake several key responsibilities: (a) Determine why the child was brought to the police station. (b) Meet with the child to provide assurance and necessary support. (c) Coordinate with the police to understand the allegations against the child. (d) Locate the child's parents and assist the police in contacting them. (e) Evaluate the possibility of granting bail and, if feasible, initiate diversion measures. (f) Take steps to ensure the child is placed in safe custody with the assistance of the police officer responsible for children's affairs before the child is presented in court.?

The Children Act, 2013 requires the establishment of at least one Children Court in each district and metropolitan area. These courts are distinct from adult courts, though they may be housed in the same building. Proceedings for children are conducted separately from those involving adults, and the court must confirm the child’s age before starting the proceedings. The court’s age determination is final. Trials involving children must be conducted in a manner that ensures confidentiality and is child-friendly, upholding the child's best interests. The Act also stipulates that action be taken against any police or Probation Officers who neglect their duties.?

During the trial in a Children Court, the presence of the Probation Officer is mandatory. Their duties include: (a) Attending the trial and providing support to the child as needed. (b) Preparing a Social Inquiry Report based on an investigation and the surrounding circumstances, and submitting this report to the court. (c) Ensuring the child has legal representation if necessary, with assistance from the District Legal Aid Committee (DLAC). (d) Coordinating with non-governmental legal aid.?

Recommendations?

• Expansion and Support: There is a pressing need to increase human resources and logistical support to extend probation services across all districts, ensuring comprehensive coverage in Upazilas and metropolitan areas.?

• Alternative Measures: The adoption of laws and practices that offer alternatives to incarceration, such as community service, deferred sentences, fines, and Alternative Dispute Resolution (ADR), should be pursued. Special attention should be given to women with young children, prioritizing their access to these alternatives.?

• Budget and Capacity Building: A dedicated and adequate budget should be allocated for probation services. Additionally, resources must be directed toward the professional development of Probation Officers, focusing on both adult and child probationers. Continuous training, seminars, and workshops should be organized for all stakeholders involved in probation, including judges, Probation Officers, police officers, prison officials, lawyers, and Social Welfare Officers.?

• Local Government Involvement: It has been observed that Probation Officers often rely heavily on local government representatives for monitoring and rehabilitation. It is recommended that local government officials be formally integrated into the probation and rehabilitation process through legal provisions.?

• Specialization of Probation Officers: Probation Officers should be categorized based on their area of specialization, distinguishing between those who handle adult probationers and those who work with children in conflict with the law.?

• Office Relocation: The offices of Probation Officers should be moved from the Department of Social Services (DSS) or Deputy Commissioner’s (DC) offices to court buildings. This relocation would facilitate better integration and coordination with the courts that issue probation orders.?

Conclusion?

The probation system in Bangladesh plays a vital role in the criminal justice system, offering an alternative to incarceration and supporting the rehabilitation of offenders. While there have been significant advancements, challenges remain that hinder the system's effectiveness. By addressing resource limitations, legislative gaps, and societal stigma, and by learning from international best practices, Bangladesh can enhance its probation system to better serve both offenders and society. Investing in these improvements not only benefits individual probationers but also contributes to a more just and rehabilitative criminal justice system.?

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