A full bench of the Bombay High Court has held that a prisoner convicted under the Protection Of Children From Sexual Offences Act is not entitled to benefit of emergency (Covid-19) parole as per government notification dated May 8 as the judgment of the High Court in Sardar s/o. Shawali Khan vs. The State of Maharashtra & anr will be applicable in such a scenario.
Full bench of Justice KK Tated, Justice GS Kulkarni and Justice NR Borkar were hearing a writ petition filed by one Pintu Sonale, after the same was placed before them following an order passed by the division bench headed by Justice SS Shinde seeking authoritative settlement of the issue whether a prisoner convicted under POCSO Act, is eligible to be released on emergency (Covid-19) parole in terms of Rule 19 (1) (C) of the Maharashtra Prison (Furlough and Parole) Rules.
As per the said division bench, there were conflicting opinions given in two different judgments on this particular question of law. In Sardar s/o. Shawali Khan, the petitioner who was convicted for offences under the provisions of the Terrorists and Disruptive Activities Act sought benefit of emergency parole as per May 8 notification. Court had noted in the said judgment-
"Though specifically TADA is not mentioned in the notification, the Special Acts are mentioned in minutes of a meeting of the High Power Committee, dated 10th May, 2020. In the amendment to the Rule 4 of the Rules, in clause No.12, it is mentioned that prisoners, who are considered dangerous or have been involved in serious prison violence and who are convicted under Special Acts like Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), rape, etc. are not entitled to get the beneft of Rule 4, which needs to be read with Rule 19 and it can be said that in Rule 4, initially there was no category like pandemic situation created by COVID-19 virus. Only due to Government Notification dated 8 th May, 2020, the prisoners can be considered for giving them emergency parole and such parole is subject to the condition mentioned in the notification itself. In view of this circumstance and aforesaid provisions, it cannot be said that vested right is given to the prisoners to get parole and some definite exceptions are created by the State. The words used in proviso are " like and etc.".
Thus, the list of Special Acts given in the notification is not exhaustive and other special enactments which are similar in nature need to be considered and the authority has the power to say that a TADA convict is also not entitled to get the benefit of Government Notification dated 8th May, 2020. For all these reasons, this Court holds that there is no need to interfere in the order made by the respondent. In the result, both the petitions stand dismissed."
Petitioner's lawyer Advocate Rupesh Jaiswal had argued that since his client is not convicted under the provisions of MCOC, PMLA, MPID, NDPS, UAPA, the condition precedent to release on emergency parole as classified by the State High Powered Committee is satisfied.
The division bench had concluded that the decision in Vijendra Malaram Ranwa vs. State of Maharashtra & anr was in conflict with the decision in and Sardar s/o. Shawali Khan which dealt with offences punishable under TADA.
Finally, the full bench held that the decision in Sardar s/o. Shawali Khan vs. The State of Maharashtra & anr is the correct interpretation and directed the matter to be listed before the same division bench.