Concept of Probation

The Concept of Probation has been widely accepted as one of the Reformative
methods to deal with corrigible (সংশোধনযোগ্য) offenders, particularly the
Juvenile offenders and the First time offenders. It aims at rehabilitation of
offenders by returning them to society during the period of supervision rather
than sending them into unnatural and socially unhealthy atmosphere of prison.

Definition of Probation
The term 'probation' is derived from the Latin word 'probare' which means 'to
test' or 'to prove'. Etimologically, probation means 'I prove my worth'. Renowned
American Penologist Don Martin Gottfredson (1926-2002) that, "Probation is a
procedure by which a convicted person is released by the Court without
imprisonment subject to conditions imposed by the Court. Thus, probation is part
of the decision-making process of Judges at the time of sentencing."

Probation is a conditional release of an offender under supervision. As a

corrective measure, supervision can be used in two ways, namely, before or after
the custodial sentence. If it is applied to an offender before sending to custody,
then it is known as 'Probation'. But if it is applied to an offender by temporarily
releasing him from custody, then it is known as 'Parole'.

Origin of The Concept of Probation

American Penologist John Augustus (1785-1859) is called the founder of the
concept of "Probation". In 1841, Augustus began the practice of supervising
individuals who were convicted of minor crimes, but he did so outside of jail,
offering to be responsible for their behavior and ensuring they stayed out of
trouble. His work is often considered as the foundation of the modern probation
system. By this he provided an alternative to imprisonment for many offenders,
particularly those who had committed nonviolent offenses. His method
emphasized on rehabilitation. After the successful application of this method by
Augustus, Massachusetts became the first state in the U.S. to pass a law formally
establishing probation in 1878 AD. This marked the beginning of probation as a
formal, legal system.

Probation in Bangladesh
Although there are five types of punishment in Bangladesh according to The Penal
Code, 1860 but there is no provision for probation. Section 562 of The Code of
Criminal Procedure, 1898 provides for probation. Later, the Probation of
Offenders Ordinance, 1960 was passed. By this Ordinance a comprehensive
Probation Act was made by repealing Section 562 of the Code of Criminal
Procedure. After Independence, The Probation of Offenders Rules, 1971 was
passed.

Who can grant Probation to whom?

Section 3 of The Probation of Offenders Ordinance, 1960 refers that the Following
Courts can grant Probation;

1. High Court Division;

2. Court of Session;

3. District Magistrate;

4. First Class Magistrate.

When the court orders probation, it may order the probationer to sign a bond
with or without a surety. Bond conditions include that the person commit no
crime, do nothing to disturb the peace and be of good behavior. Such person shall
be punished for breach of condition. If the court finds that the person under
probation has violated the said conditions, it can issue a warrant for his arrest and
issue summons against his sureties. If the court finds the person under probation
to be in violation of the bond, it may sentence him for the original offense or
impose a fine of up to 1000 TK.
Section 5 of The Probation of Offenders Ordinance, 1960 describes the parties in
favor of whom Probation can be granted:

1) A person convicted of an offense not punishable by death.

2) A male person convicted of an offense which is not punishable with

imprisonment for life or an offense under various sections of The Penal Code,
1860.

This section will not provide any obstacle in the case of offenses in which the
court can order probation as per The Children Act, 2013.

Process of Granting Probation

Probation is granted in two ways in Bangladesh. Firstly, if the judge finds that a
person has committed a crime, the judge can hold his Judgment and order the
probation officer to investigate the economic, social status of the person and to
submit a report of the investigation to the Court. If the Probation Officer after
inquiry finds that the person can be reformed by being given probation, then
officer shall make recommendations in his report. Otherwise, the court will award
him the sentence he deserves in a normal trial.

Secondly, if the Judge or Magistrate finds that a person has committed an offense
for the first time and should be given the opportunity of probation, then He can
order that on his own initiative.

Probation Officer
A probation officer is appointed for supervising Probationer. They monitor
offenders' compliance with probation conditions. Probation officers also prepare
reports for the court, make recommendations on sentencing, provide support and
services to help the individual to reintegrate into society. Their role involves both
enforcement and guidance to offenders. They help the Offenders to complete
their probation periods and avoid imprisonment.

Qualifications of Probation Officer:

According to Rule 3 of The Probation of Offenders Rules, 1971, A person shall be
appointed as probation officer if he has fulfilled the following conditions---

1) He is more than 20 years and less than 30 years or age at the time of his first
appointment;

2) He is an Honours graduate in Social Welfare or Social Work or an M. A. in Social

Welfare or Social Work from a recognised University:

3) He possesses a good character and is in good mental and physical health:

4) He is a citizen of Bangladesh.

Duties and Functions of Probation Officer:

Section 13 of The Probation of Offenders Ordinance, 1960 and Rule 4 of The
Probation of Offenders Rules, 1971 provide Duties and Functions of a Probation
Officer. Some important duties and Functions are as follows --

1) To meet the probationer regularly;

2) To check whether the probationer complies with the terms of the bond on
account of which the offender is placed on probation;

3) To report to the concerned authority about the conduct of the person under
probation;

4) To Advise and encourage the probationer to become a Law abiding citizen;

5) To arrange suitable employment for the probationer where possible.

Relationships between Parole and Probation

Similarities:
1) Both are part of Reformative theory of punishment;

2) Mostly Same types of conditions are given in both cases;

3) Both have same objects;

4) Both Parole and Probation are part of Criminal Sentence.

Dissimilarities:
1) The person to whom Parole is granted is known as Parolee. On the other hand,
The person to whom Probation is granted is known as Probationer;

2) Another notable distinction is that Probation is Judicial Function while Parole is

essentially Quasi Judicial in nature;

3) Parolee is supervised by Parole Officer. Probationer is supervised by Probation

Officer;

4) Probation is a sentence served in the community instead of jail or prison, often

for less serious crimes. That means the offender comes under the probation
program before serving the sentence. But Parole is a form of supervised early
release from prison, typically granted after an individual has served part of their
prison sentence and demonstrates readiness to reintegrate into society. Parole is
granted in our State after completion of One-Third of Punishment;

5) There is no Specific Laws for Parole in our State. But For Probation there are
The Probation of Offenders Ordinance, 1960 and The Probation of Offenders
Rules, 1971;

6) In the case of probation, there is less opportunity to judge whether there are
signs of good behavior in the criminal. On the other hand, there is room to notice
this in the case of parole. Because, before being sent to parole, there is an
opportunity to observe whether the character of criminal is improving during the
punishment.

Demerits of Parole System

Just like any other concept or theory The concept of Parole also has several
potential demerits:

1) The decision to release a prisoner, earlier, may be based on incomplete or

inaccurate reports. Which is a Huge risk to public safety;

2) This concept is against Pain and Pleasure theory. It may also reduce deterrent
effect of the sentence;

3) There is a great possibility of biasness in case of granting of Parole. Mostly

Biasness is be based on Political Ideology or Financial condition of Parolee;

4) 100% possibilities for Recedivism;

5) Supervision can't be possible all the time due to lack of Manpower;

6) It may effect victims' family.

Demerits of Probation System

It is not appropriate to say that the probation system is completely flawless. Along
with the advantages, the probation system also has some disadvantages. These
are:

1) The probation system places so much emphasis on the reformation of the

offender that there is no opportunity to look after the interests of the
complainant;

2) It undermines the effect of Deterrent. Also against the concept of "Pain and
Pleasure";

3) If the court fails to show honesty for any reason, a professional offender may
avoid punishment by getting probation. And in such case it will be a great risk to
public safety;
4) In the probation system, as the probation officer has to perform the entire
responsibility of character reformation of the offender. But carrying out the
responsibility of character correction of the criminal is not an easy task. As a
result, the extent to which a probation officer can modify an offenders' character
cannot be ascertained;

5) One of the defects of the probation system is that the offender may in do
acting (ভনিতা) that he has really reformed.

Is Parole a right or Privilege of the Prisoner?

Parole is not a right for Prisoners. It is an absolute discretionary matter of relevant
authorities which include Parole Board, Jail Authority, Ministry of Home affairs,
District Magistrate. It is basically a temporary release of the prisoner with some
conditions. It is granted on the basis of sufficient reason. Such as: Family
emergency or medical needs or other exceptional circumstances. Before granting
parole the concerned authority shall take the following factors into the account:

1) Nature of the crime,

2) Modes of committing offence,

3) the prisoner’s behavior,

4) Likelihood of re-offending.

So, From the above discussion it can be said that, Parole is not a constitutional or
legal right or Privilege for prisoner, but rather a discretionary matter.

Is Probation a right or Privilege of the Offender?

Do it by yourself.