PROBATION: A REFORMATIVE THEORY

Kamrizzaman Polash :

Raj Kumar Hirani, a well-known Indian filmmaker, created a song in his popular film “3 IDIOTS” in which some lines are…

“Give me some sunshine
Give me some rain
Give me another chance
I wanna grow up once again”

The main focus point of this lyrics is, there should be given a second chance to every person whether he is non criminal person or a sinner.As there is a famous quote of Mahatma Gandhi that, “Condemn the Sin, not the Sinner”. Moreover, Russian Professional Cyclist, Alexander said, “Having a second chance makes you want to work even harder”.

Let us discuss the law to determine if it provides a second chance to those who have fallen into wrongdoing and if there is even a provision that allows for a second chance to repent.

There are several theories of punishment that are used to execute criminals. These include

1. Deterrent Theory
2. Preventive Theory
3. Retributive Theory
4. Reformative Theory
5. Expiatory Theory.

It is opposed to imposing harsh penalties on criminals. It speaks of providing an opportunity for the criminal to become a law-abiding citizen.The Reformative method is similar to that of a doctor operating on a patient to relieve him of pain.Actually, the main purpose of this theory is getting back the culprits from the tainted life and restore them in civil society so that they turn into human resource.

One of the process of Reformative theory is“Probation”. The inventor of probation is Augustus also known as the father of Probation. This word Probation derived from the Latin word Probatio.

In Probation in the United State Of America by Jon Petersilla, PH.D it has been narrated that, “In USA Probation began in 1841 with the help of Augustus.Where Augustus requested a judge to postpone the sentence of a criminal and to place the criminal in his custody for three (3) weeks. The court accepted Augustus application and sent the criminal to him. As a result, after three (3) weeks the criminal reform his life with the help of Augustus and finally appeared before court and the judge imposed nominal fines instead of sending him in jail.

In Bangladesh there is a law is called, “The Probation of Offenders Ordinance,1960”, which enables judges to give criminals another chances to reform their life instead of sending them to jail.

Section 3 of “The Probation of Offenders Ordinance,1960” describes about the courts which are empowered to order a probation.

• The High Court Division
• Session Court
• District Magistrate
• a Magistrate of first class and
• any other magistrate empowered by the law.

There are certain provisions associated with granting Probation. (Under section 4 of “The Probation of Offenders Ordinance,1960”):

• Where he/she is not been previously convicted
• Convicted with imprisonment not more than 2(two) years.
• The age of the offender
• The Sex of the offender
• The character of the offender
• The physical condition of the offender
• mental condition of the offender
• The nature of the offenses

There are certain provisions associated with granting Probation or passing any order for the child (Under Section 30 of “The Children Act, 2013”):

• Age
• Sex
• Physical condition
• Mental condition
• Educational qualifications
• Social, culture and ethnic background
• Lifestyle of the child and his family
• Reasons behind the offense
• Opinion of the child
• Social inquiry

When Probation cannot be granted in case of Adult person convicted with offenses (Under section 5 of “The Probation of Offenders Ordinance,1960”):

• punishable with death or imprisonment for life;
• against the State under Chapter VI of the Penal Code 1860;
• relating to the Army, Navy and Air Force under Chapter VII of the Penal Code 1860;
• of harboring robbers or dacoits under section 216A of the Penal Code 1860;
• of causing hurt by means of poison, etc, with intent to commit an offense under section 328 of the Penal Code 1860;
• Theft after preparation made for causing death, hurt or restraint, in order to commit theft under section 382 of the Penal Code 1860;
• Extortion by putting a person in fear of death or grievous hurt under section 386 of the Penal Code 1860;
• Putting person in fear of death or of grievous hurt, in order to commit extortion under section 387 of the Penal Code 1860;
• Extortion by threat of accusation of an offense punishable with death or Imprisonment, etc. under section 388 of the Penal Code 1860;
• Putting person in fear of accusation of offense in order to commit extortion under section 389 of the Penal Code 1860;
• Robbery under section 392 of the Penal Code 1860;
• Attempt to commit robbery under section 393 of the Penal Code 1860;
• Robbery or dacoity, with attempt to cause death or grievous hurt under section 397 of the Penal Code 1860;
• Attempt to commit robbery or dacoity when armed with deadly weapon under section 398 of the Penal Code 1860;
• Making preparation to commit dacoity under section 399 of the Penal Code 1860;
• Punishment for belonging to gang of thieves under section 401 of the Penal Code 1860;
• Assembling for purpose of committing dacoity under section 402 of the Penal Code 1860;
• Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint under section 455 of the Penal Code 1860; and
• Lurking, house-trespass or house-breaking by night, after preparation for hurt, assault or wrongful restraint under section 458 of the Penal Code 1860.

In case of woman offenders probation can be granted for all offenses other than the offenses punishable with punishable with death .(U/s 5(1)(b)of this Ordinance)

Provided that, with or without sureties the offender will enter into a bond, not to commit any kind of offense and keep peace and maintain good behavior during the period and shall appear and receive sentence if it has been ordered during that period.(U/s 5(1)(b) of this Ordinance)

However, the court shall be satisfied by the offenders or his/her sureties (if any)that he/she has fixed place to reside or has regular occupation within the local limits of its jurisdiction and will continue such during the period of probation.(U/s 5(1)(b) of this Ordinance)

Section 12 of “The Probation of Offenders Ordinance,1960” says,about the Probation Officer. It has been said that the officer in charge shall appoint any person as probation officer .

Section 13 of “The Probation of Offenders Ordinance,1960” says about the duties of such probation officer. Where it has been said that,

• The probation officer shall Visit the offender with intervals specified in the probation order.
• The officer Look after that whether conditions of the probation are fulfilled by the offenders.
• Shall report to the officer in charge regarding the offender.
• Shall assist, advice the offender and endeavor to get him suitable employment, and
• Shall perform others obligations prescribed by Ordinance.

Now, Have a look on some precedents of Probation in Bangladesh,

• An offender was given 1(one) year rigorous imprisonment and 2000 taka fine . Later the offender confessed about his offense and expressed repent . The Judge with his own motion granted Probation by giving him 7 conditions under Under section 5 of “The Probation of Offenders Ordinance,1960”.____The Daily Prothom alo, 5^th January,2021;

• An offender was given 1(one) year simple imprisonment and 1000 taka fine and non-payment of fine he shall be given 15(fifteen)days more simple imprisonment. Later the Judge by considering the age of the offender postponed the sentence and granted Probation by giving him 8 conditions under “The Probation of Offenders Ordinance,1960”.____com 17^th September,2020;

• An offender was given 6(six) month imprisonment. As the offender’s age was above 60, so the court by considering age of the offender postponed the sentence and gave him a chance to reform outside of the court under “The Probation of Offenders Ordinance,1960”.____Channel i online.com 26^th ,September, 2021;

• 3 students of class nine were arrested for drug dealing. However, they confessed about their offense. The court by considering their social condition, student life and future employment granted Probation by giving them 9 conditions under “The Probation of Offenders Ordinance,1960”.____Notun Feni.28^th2020;

• An offender named Hasan Ali sardar (25) was given 1 (one) year imprisonment.However the court granted Probation by giving him 5 conditions under “The Probation of Offenders Ordinance,1960”.____Jagonews24.com, 01^st December 2020;

So, it can be said that there is also a provision in our statutory law to give a chance to the offenders instead of sending them to jail. Because it is presuming that, it the simple offender meet and live with habitual offenders in Jail they may also get influenced by the habitual offenders and may commit more dangerous offense in future. By applying Reformative theory, we can restore them in civil society and turn them into a human resource.

Writer: Student, Department of Law, East West University.