A division bench of the Bombay High Court last Monday sought authoritative settlement of the issue of whether a prisoner convicted under a Special Act, i.e. POCSO in this case, is eligible to be released on emergency (Covid-19) parole in terms of Rule 19 (1) (C) of the Furlough and Parole Rules.
Court referred the matter to be decided by a full bench and asked for it to be placed before the Chief Justice on the administrative side after concluding that there were conflicting opinions given in two different judgments.
Division bench of Justice SS Shinde and Justice MS Karnik were hearing a writ petition filed by one Pintu Sonale, who was convicted for the offences punishable under Section 376 of the Indian Penal Code and Sections 3, 4, 5 of the Protection of Children against Sexual Offences Act, 2012 praying for his release on emergency (Covid-19) parole.
Petitioner was arrested on December 7, 2013 for the above mentioned offences by the Additional Sessions Judge, Nanded and sentenced to undergo imprisonment for 10 years.
Advocate Rupesh Jaiswal appeared on behalf of the petitioner and argued that the petitioner was once released on parole for attending a marriage and he surrendered on time. Pointing to the Rule 19 (1) (C) of the "The Maharashtra Prisons (Mumbai Furlough and Parole (Amendment) Rules, 2020, he submitted that the petitioner is not convicted under the provisions of MCOC, PMLA, MPID, NDPS, UAPA, the condition precedent to release the petitioner on parole as classified by the State High Powered Committee stands satisfied.
Advocate Jaiswal further submitted that the notification dated May 8, 2020, nowhere stipulates that the conviction of more than 7 years imprisonment under the POCSO Act is an impediment to deprive the petitioner of the benefit of emergency (Covid-19) parole. In support of his submission, he relied upon the decision of the High Court in the case of Kalyan s/o. Bansidharrao Renge Vs. The State of Maharashtra & anr and also Vijendra Malaram Ranwa vs. State of Maharashtra & anr.
APP KV Saste on the other hand submitted that having been convicted for serious offences under the POCSO Act which is a Special Act within the meaning of the proviso of Rule 19 (1) (C) of the said Rules, the petitioner is not entitled to the relief of emergency parole.
Court noted that the following judgments will have an important bearing on the controversy involved in the present case viz.
(i) National Alliance for People's Movements vs. The State of Maharashtra & ors.3 ,
(ii) Sardar s/o. Shawali Khan vs. The State of Maharashtra & anr.4 and
(iii) Shubham s/o. Devidas Gajbhare vs. The State of Maharashtra.
The bench noted that the issue involved in Subham s/o. Devidas Gajbhare Vs State of Maharashtra is similar to the one in the present case. Advocate Jaiswal had appeared in the said case which was decided on October 13, 2020. Court said-
"Following the best practices of the Bar, we would have expected the Counsel for the petitioner to have brought this decision to our notice though the same is adverse to the petitioner's cause. Learned counsel for the petitioner has tendered apology for the same. Be that as it may, we proceed to deal with the issue in the light of the decisions above stated."
Moreover, the bench concluded that the decision in Vijendra Malaram Ranwa (supra) was not placed for consideration of the high Court when 'Sardar s/o. Shawali Khan' came to be decided.
Thus, Court observed-
"No doubt, 'Vijendra Malaram Ranwa's' case dealt with the offences punishable under POCSO Act whereas 'Sardar s/o. Shawali Khan' dealt with offences punishable under TADA. Both being special Acts, we found conflicting decisions in 'Vijendra Malaram Ranwa' & 'Sardar s/o. Shawali Khan'. In view of this conflict, a reference of the present Petition to a Full Bench is necessitated.
The issue '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. The office to place the matter before the Hon'ble Chief Justice on the administrative side."
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