Lily PooniaContributing Author, Rightantra Pursuant to the current worldwide situation, a peculiar but pertinent question has arisen in the Bombay High Court: whether a POCSO Convict would be granted parole under the Parole Rules 2020? The petitioner, Pintu Sonale has been convicted for the offences punishable under Section 376 of the Indian Penal Code (Rape) and Sections 3, 4, and 5 (Penetrative Sexual Assault) of the Protection of Children against Sexual Offences Act, 2012 (POCSO). He was sentenced to undergo imprisonment for 10 years for the abovementioned offences. In 2020, he sought his release on the grounds of emergency (COVID-19) parole.
The petitioner argued that Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole (Amendment) Rules, 2020 (Parole Rules, 2020) provides an express list of Special Acts, and conviction under any of these Special Acts would be cause to reject any convict’s emergency parole application. However, since the POCSO Act is not specified as a Special Act in the proviso, such emergency parole provision is available to the petitioner. Additionally, the counsel also submitted that the petitioner has surrendered on time, in the previous instance when he was granted parole to attend a marriage.The Division Bench, consisting of Justice SS Shinde and Justice MS Karnik, was of the opinion that the following decisions have an important bearing on the the controversy of the present case:
In Vijendra Malaram Ranwa’s case, it was decided that as the POCSO Act is not mentioned in the proviso which bars for grant of parole, the petitioner is entitled for release on emergency parole. However, in ‘Sardar s/o. Shawali Khan’, the Court was of the opinion that the words “like and etc.” used in proviso are indicative of the legislature’s intention to not make the list of Special Acts given in the Notification exhaustive; and therefore, other special enactments which are similar in nature, need to be considered. Based on this principle, the Court adjudicated that that a TADA convict is not entitled to get the benefit of Government Notification dated 8th May, 2020. There is no doubt that Vijendra Malaram Ranwa’s case dealt with the offences under POCSO Act whereas Sardar s/o. Shawali Khan’s case dealt with the offences under TADA but it should be noted that both are Special Acts. There exist conflicting decisions in these cases and therefore the issue of ‘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 difference of opinion.
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