The Hon’ble High Court of Bombay vide its recent judgement dated 06.11.2020 held that a person 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 judgement was pronounced by the Full Bench comprising of Justices KK Tated, GS Kulkarni and NR Borkar in a Criminal Writ petition that had first come before a division bench of the Bombay HC comprising of Justices SS Shinde andMS Karnik which referred it to the full bench. The Petitioner approached the Bench, praying to be released on parole on grounds of emergency (Covid19), as per the recent amendment brought about to Rule 19 (1) of the Maharashtra Prisons(Bombay Furlough and Parole) Rules, 1959 (for short “the 1959 Rules”), effected vide Government Notification dated 08.05.2020.

The proviso to Rule 19 of the The Prisons (Bombay Furlough and ParoleRulesstates that those convicted for serious economic offences or bank scams or offences under special Acts other than the Indian Penal Code, such as The Maharashtra Control of Organised Crime Act, 1999(MCOCA), Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS),Activities (Prevention) Act(UAPA),Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999(MPID),Prevention of Money-laundering Act, 2002(PMLA)- which provides for additional restrictions on grant of bail – shall not be released on parole or furlough.

The Petitioner in the present case was convicted for offences under Sections 3, 4 and 5 of the POCSO Act.

Petitioner’s lawyer Advocate Rupesh Jaiswal had argued that since his client is not convicted under the provisions of MCOCA,PMLA,MPID,NDPS, UAPA, the condition precedent to release on emergency parole as classified by the State High Powered Committee is satisfied.

He further pointed out that unlike the MCOCA or Terrorist and Disruptive Activities (Prevention) Act (TADA), which provide additional restrictions on bail, the POCSO Act did not have any special restrictions for bail.It was alsosubmitted that all convicted prisoners are entitled to parole when it comes to emergency parole under Rule 19 of the Parole rules.

After perusing the arguments on record, the High Court ruled that the proviso to Rule 19 of the The Prisons (Bombay Furlough and 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 Bench furtherheld 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.It was further held 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 Full Bench finally made the following two findings:

  1. Between the judgments of VijendraMalaramRanwaand 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.

With the legal issues before them answered, the Hon’ble High Court directed the registry to place the present plea before the appropriate Bench.