Barrister H M Shanjid Siddique :
The legal provision which allows the Government to suspend the execution of sentence of a convict who is undergoing sentence of imprisonment has come to light after release of former Prime Minister, Begum Khaleda Zia. She was convicted in two graft cases, known as the Zia Orphanage Trust Case and Zia Charitable Trust Case. In the former case, she was initially sentenced to 5 (five) years of imprisonment that was later enhanced by the High Court to 10 (ten) years after an appeal filed by the Anti-Corruption Commission against the adequacy of sentence. In the later, she was sentenced to 7 (seven) years of imprisonment. The legal counsels of Begum Khaleda Zia have made repeated applications for her bail both in the High Court Division and Appellate Division citing specific legal and medical grounds.
But when all their endeavors failed and the doors for her release by the order of judiciary became more confined, the family of Begum Khaleda Zia approached the Government by making an application under section 401 of the Code of Criminal Procedure, 1898. The younger brother of Begum Khaleda Zia, Shamim Eskander, made the application to the Secretary, Security Services Division, Ministry of Home Affairs. The said application was forwarded to the Ministry of Law for legal opinion and after obtaining consent from the highest authority of the Executive, Begum Khaleda Zia was released with her execution of sentences in both the cases being suspended for six months pursuant to section 401 of the Code of Criminal Procedure.
What does the law say?
Section 401 of the Code of Criminal Procedure deals with power to suspend or remit sentences. Specifically section 401(1) provides that when any person has been sentenced to punishment for an offence, the Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Thus, the provision empowers the Executive Government to suspend the execution of sentence of a convict which was passed by a court. This power can be exercised by the Government on the application of any prisoner. No order can be given suo moto by the Government.
This power of the Government can be exercised “at any time” which means that even if the sentence has been confirmed by the appellate court or the appeal filed by the convict is pending for disposal, the execution of sentence can be suspended. In addition, the Government is entitled to impose conditions for suspension of execution of sentence which the convict shall accept to be released. If the person does not comply with the condition on which the execution of sentence was suspended, the Government is entitled to cancel the suspension and secure his arrest to make him undergo the unexpired portion of his sentence.
It is pertinent to state that section 401(2) provides that the Government may take opinion from the court which passed the conviction to state his opinion with regard to whether the execution of sentence of the convict ought to be suspended or not. But taking of such opinion of the court is not mandatory for the Government.
By section 402A of the Cr. P.C the power conferred by section 401 upon the Government may, in the case of sentences of death, also be exercised by the President.
This provision is akin to the power of the Government to release an accused who is in jail on parole. There is no specific law in Bangladesh which deals with release on parole of an accused in jail, but it is a common practice of the Government to release an accused on parole either to allow him to take treatment or when a close family member of the accused dies. One essential difference is that an accused in jail can be released on parole by the Government who has not been convicted and facing his trial.
But section 401(1) of the Cr. P.C is applicable for prisoners who have already been convicted and undergoing sentences. The authority of the executive to release a prisoner on parole derives from the Prisons Act, 1894. Section 59 of the Act empowers the Government to make rules for the award of marks and the shortening of sentences, defining the circumstances and regulating the conditions under which prisoners in danger of death may be released and in regard to the treatment and release of prisoners.
Apart from this, section 54 of the Penal Code entitles the Government to commute the sentence of death of a convict to any other punishment and section 55 allows the Government to commute the sentence of imprisonment for life of an offender to a punishment for imprisonment not exceeding 20 (twenty) years.
Concluding remarks
The executive is empowered under the law to suspend the execution of a sentence, remit a sentence in whole or in part or commute a sentence. This prerogative of the Government is often deluded by the critics as being to curtail or interfere with the authority of the judiciary. In Sarwar Kamal vs The State, reported in 64 DLR (2012) 329, the High Court Division in relation to remission of a sentence by the Government under section 401 of the Cr.P.C. observed that “Having regard to the fact that to exercise the above power by the Government there is no Rule or standard guideline. Thus, we are of the view that for fair, proper and bonafide exercise of the above power Government may frame Rule and guideline or even amend the code, as has been done in one of our neighbouring countries.
Possibly, this is the high time for the Government to think over the matter to avoid controversy, criticism and misuse of power.” The Appellate Division in Ataur Mridha and Ors. Vs. The State, reported in 14ADC(2017)333, took the view that “It is, therefore, expected from the society that this judicial power exercised by the court should not be interfered with by the executive government in exercise of its power of remission under section 401 of the code of criminal procedure.
I think the time has come to make legislative changes for allowing the court to pass “suspended sentence” and “release on license” for the offenders in the pretext of the over-crowded prisons we have. In the UK and most European countries, the court may pass suspended sentence which means that the offender does not go to prison immediately, but is given the chance to stay out of trouble and to comply with requirements set by the court. In Bangladesh, the court is entitled to pass order of conditional discharge or probation order under the Probation of Offenders Ordinance, 1960. If the courts can fully embrace these concepts of sentencing, specifically probation and suspended sentence, it will reduce the burden on our prisons and make our criminal justice system in line with that of developed countries.
(Barrister H M Shanjid Siddique, advocate of the Supreme Court of Bangladesh and Programme Director of Nottingham Law Academy)
