The long forgotten law of probation of offenders | The Daily Star
12:00 AM, February 19, 2019 / LAST MODIFIED: 12:06 AM, February 19, 2019

Law letter

The long forgotten law of probation of offenders

Very recently, Chief Justice of the Supreme Court of Bangladesh Syed Mahmud Hossain has directed the judges to apply to a forgotten law of the 1960s, namely the Probation of Offenders Ordinance 1960, to reduce the pressure on prison and to implement 'corrective' punishment policy on the basis of the recommendation of a Reform Committee headed by Justice Imman Ali. Such direction comes on the heels of the urgency for minimising the number of prisoners which was more than twice of the capacity of prisons according to a report of Parliament prepared two years ago.

It is to be noted that the option of probation shall not be available to convicts under the Prevention of Oppression against Women and Children Act and the Special Powers Act. 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.

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.

The law of 1960 had little to no application in the post-independence context for Bangladesh. The Bangladesh Supreme Court has issued a circular on February 12, 2019 with the directives to the judges across the country to apply the law. The fact that the law is not in use is fully attributed to how the judges exercise their discretion in this regard.

The current practice of probation has been aphoristically described by 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.” Previously, in 2006, Justice Imman Ali, in consultation with Minister Anisul Haque and Dr. Shahdin Malik, had allowed a convicted person probation.

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