[Breaking] POCSO convicts cannot be granted COVID-19 emergency parole: Bombay High Court

A Full Bench of Bombay High Court on Friday ruled that persons convicted under the Protections of Children from Sexual Offences (POCSO) Act cannot be granted emergency (COVID-19) parole under the Maharashtra Prisons (Mumbai Furlough and Parole (Amendment) Rules, 2020 (Parole Rules)..The court ruled that the proviso to Rule 19 of the Parole Rules which bars prisoners convicted under certain special laws from availing parole would include POCSO prisoners too though POCSO is not expressly provided in the said proviso. .The judgment was rendered by a Bench of Justices KK Tated, GS Kulkarni and NR Borkar which heard the matter after a Division Bench of Justices SS Shinde and MS Karnik referred the issue to a larger bench in view of conflicting judgments by different Benches of the High Court..Bombay High Court Full Bench to decide if POCSO convicts can be granted COVID-19 emergency parole.The Full Bench framed two questions of law which they answered as follows:1. Between the judgments of Vijendra Malaram Ranwa and Sardar s/o. Shawali Khan, the interpretation of Rule 19 of the Parole Rules was accurate in the Sardar s/o. Shawali Khan judgment.2. The proviso under Rule 19 (dealing with emergency parole) includes the special act of POCSO Act, thereby, implying that the emergency parole rules cannot apply to the convicts under the POCSO Act..In May this year, the Maharashtra Government had issued a notification amending Rule 19 of the State's Prison and Parole Rules to allow the release of prisoners on COVID-19 emergency parole. .However, a proviso was also inserted to Rule 19 to specify that these provisions would not apply to those convicted under Special Acts "like MCOC, PMLA, MPID, NDPS, UAPA etc.".The court held that the list is not exhaustive but only indicative of the legislative intent to carve out exception for prisoners who are convicted for serious offences under the specified as well as non-specified Special Acts which should include POCSO and TADA.."The reference as made in the proviso to certain special Acts is certainly not exhaustive and it would include within its ambit other similar Acts where the offences are serious. The Court cannot be oblivious that when the accused is sentenced for seven years and above under the provisions of the POCSO Act, it is certainly a conviction for a serious offence affecting the society at large,"the High Court said..That the proviso uses the words “like” and “etc” is a significant indication of the legislative intent that the list of special Acts enlisted is not exhaustive, the court added..During arguments made on Thursday evening, advocate Rupesh Jaiswal, appearing for the Petitioner, had contended that because the POCSO Act does not find a place in the proviso, the prisoners convicted under the POCSO Act can avail benefit of emergency parole. .Since the POCSO Act was not expressly mentioned, he contended that convicts under the POCSO Act were also entitled to COVID-19 emergency parole..He also pointed out that unlike the Maharashtra Control of Organised Crimes Act (MCOC) or Terrorist and Disruptive Activities (Prevention) Act, which provide additional restrictions on bail, the POCSO Act did not have any special restrictions for bail..It was further submitted that all convicted prisoners are entitled to parole when it comes to emergency parole under Rule 19 of the Parole rules. .Jaiswal added that the purpose of parole was to release the convict who has served three-fourth of his sentence so that he can mix with the general populace..The Court also heard submissions made by the Public Prosecutor before delivering the judgment. .With the legal issues before them answered, the court directed the registry to place the plea before appropriate Bench for decision on the individual case on merits. .[Read judgment here]