A three-judge bench of the Bombay High Court on Friday said persons convicted under the Protection of Children from the Sexual Offences (POCSO) Act cannot avail emergency parole provided in view of the Supreme Court’s directions to decongest prisons due to COVID-19. The full bench, comprising Justices KK Tated, GS Kulkarni and NR Borkar, held that though the proviso Rule 19 of the Maharashtra Prison Rules did not specifically mention the POCSO Act, the 2012 law gets covered under the head of special Acts, and serious offences, which are ineligible for emergency parole in light of the COVID-19 outbreak.
The bench was referring to the notification issued by the state home department by which Rule 19 of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, has been amended to allow decongestion of prisons by granting certain convicts parole and furlough following the pandemic. The proviso to Rule 19 states that those convicted for serious economic offences or bank scams or offences under special Acts other than the Indian Penal Code, such as MCOCA, NDPS, UAPA, the Prevention of Money Laundering Act – which provide for additional restrictions on grant of bail – shall not be released on parole or furlough.
The full bench was presiding over a petition filed by a person convicted under the POCSO Act, who is currently serving a sentence of ten years in a city prison. The petition had first come before a division bench of the Bombay HC that referred it to the full bench after petitioner's advocate Rupesh Jaiswal pointed out that there existed two conflicting judgements on the issue.
The Nagpur bench of the HC recently held that there was no impediment on providing emergency parole to POCSO convicts since the Act wasn't mentioned in the proviso. However, the Aurangabad bench of the HC had recently denied emergency parole to a person convicted under the Terrorist and Disruptive Activities (Prevention) Act even though the 1987 Act now stands repealed.
Advocate Jaiswal had told the court that the list of Special Acts in this proviso was exhaustive. Since the POCSO Act was not expressly mentioned, convicts under the legislation were also entitled to COVID-19 emergency parole, he had argued.
Jaiswal had also maintained that the POCSO Act itself did not impose any additional restrictions, hence his client was eligible for emergency parole. The state's counsel, YP Yagnik, had argued that the SC had said emergency parole could not be claimed as a matter of right by convicts.
The larger bench held on Friday that the "POCSO Act was covered under the proviso of Rule 19."
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