Probation: Alternative to imprisonment

RAFIZA and Rashida are twin sisters. Rafiza is meritorious but Rashida is not. Rafiza easily passed her S.S.C. examination but Rashida could not. Rafiza sat in same examination next year falsely impersonating herself as her sister. Ignoring her unwillingness, she was compelled by her guardian to do so. Unfortunately examiner found the same and she was put on trial. She pleaded guilty before the trial judge. Does the judge or magistrate have any other option but to convict the accused in this hypothetical story?
What the society will secure by putting her under bar which may lead her to be involved with more unsocial activities. Moreover, convicting the accused is not the only purpose of law and judiciary. The law has given an alternative scope to be resorted too. The Probation of Offenders Ordinance, 1960 has brought an ample scope for discharging an offender conditionally or sending him in probation in certain cases.
Application of the provisions of the Ordinance may in many cases bring back non-habitual offenders to right directions instead of pushing them to non law abiding citizens. Unfortunately most judges and magistrates are either reluctant to resort that path or I am afraid to say they are not well known about the existing provisions.  Same goes for lawyers as well.
Under section 4 of the Ordinance a court has power to conditionally discharge a persons who has no past conviction record if the judge after considering age, character etc of the offender as well as nature, circumstances etc of the offence is satisfied that it is not expedient to inflict a punishment provided the charge in hand is not punishable for more than two year. To be discharged under this section the offender must enter into a bond that he will not commit any offence and maintain good behaviour for a period which may extend to one year.
Besides discharging conditionally, in vast majority of cases the court has power to suspend a sentence to be inflicted upon an offender and send him to probation officer for a period of one year to three years. As per  section 5 of the Ordinance a woman can get benefit of probation order if she is not charged for an offence punishable with death. Scope for a male offender is less extended as he will not get benefit of the section in some other offences which are offence under chapter VI and VII of the Penal Code or under sections 216A, 328, 382,386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455 or 458 of the Penal Code or offences punishable with death or life imprisonment.
This power is not limited to the trial judge, but the judge hearing appeal or revision has the same power to discharge conditionally or to send the offender to a probation officer. It is perhaps not right to say that the judges have no power to resort the provision of the Ordinance on their own motion. Rather, a statement of Mr Justice M. Imman Ali of the Appellate Division, Supreme Court of Bangladesh which was made in a Roundtable on Probation as an Alternative to Imprisonment: Legal Framework and Current Practice organised by BLAST and Penal Reform International (PRI) on 20 December 2013 as he says 'Courts have the power to make probation orders as a matter of obligation'. If it is an obligation how the judges can refuse to exercise these provisions even if no party of the case made an application in this regard?
Besides serving corrective purpose of criminology, implementation of conditional discharge or probation is not less important to reduce the burden in overcrowding prisons.

The writer is an Advocate, Supreme Court of Bangladesh.