Bombay High Court Full Bench to decide if POCSO convicts can be granted COVID-19 emergency parole

A Full Bench of the Bombay High Court is now expected to decide on the issue of whether persons convicted under the Protections of Children from Sexual Offences (POCSO) Act are entitled to emergency parole in view of the COVID-19 pandemic under the Maharashtra Prisons (Mumbai Furlough and Parole (Amendment) Rules, 2020..The Bench of Justices SS Shinde and MS Karnik made the reference to the Full Bench in light of conflicting judgments on the matter of emergency parole amid the pandemic..The issue arose when one, PU Sonale filed a plea challenging the rejection of his parole on the ground that he was convicted for raping a minor under provisions of the Indian Penal Code (IPC) and the POCSO Act, for which he was sentenced to 10 years' imprisonment..Advocate RA Jaiswal, for Sonale, argued that under Rule 19 of 2020 Parole Rules, emergency COVID-19 parole can rejected only if the applicant has been convicted for offences under Special Acts which were enlisted in the proviso of Rule 19. Pertinently, the POCSO Act is not expressly mentioned in this list..He relied upon the decision of the High Court at Nagpur in Vijendra Malaram Ranwa v. State of Maharashtra to submit that in a similar case of conviction under the POCSO Act, emergency parole was granted by the Bombay High Court given that the POCSO Act was not listed under the proviso to Rule 19 of the 2020 Rules..The Court, however, took note of another judgment of the High Court at Aurangabad, Sardar Shawali Khan v. State of Maharashtra, which held that if the conviction is for sexual offences against a minor, then such convict cannot be granted emergency parole..The Bench noticed there was an “apparent conflict in the decision rendered by the Division Bench in Vijendra Malaram Ranwa’s case and the one decided by the Co-ordinate Bench in the case of ‘Sardar s/o. Shawali Khan’" .In Vijendra Malaram Ranwa’s case the petitioner was released on emergency parole as the offences under POCSO Act were not mentioned in the Rules. .Conversely, in Sardar Khan, it was reasoned that the list of Special Acts under Rule 19 are not exhaustive and that other special enactments, if any, would also be included..In the instant case, the Court took note that like the ‘TADA’, (which has been listed under Rule 19), the POCSO Act is also a Special Act, even if it has not been expressly mentioned in Rule 19..In view of the conflicting decisions by two Division Benches of the Court, the question of which Special Acts are included under Rule 19 has now been referred to a Full Bench of the Court. The Bench said,."The issue ‘whether a prisoner convicted under the Special Act viz. POCSO Act is eligible to be released on emergency (Covid-19) parole in terms of Rule 19 (1) (C) of the said Rules’, in our opinion, needs to be authoritatively settled in view of the diference of opinion.".[Read order here]