"The Court cannot be oblivious that when the accused is sentenced for seven years and above under the provisions of the POCSO Act, it is certainly a conviction for a serious offence affecting the society at large," said the Bombay High court.
A full bench of the Bombay High court including justice KK Tated, Justice GS Kulkarni, and Justice NR Borkar held that prisoner convicted of sexual offences of such nature was not entitled to parole while considering a writ petition seeking emergency parole of a prisoner who was convicted of offenses under POSCO Act under the government notification dated May 8, which provided for emergency parole due to the unprecedented times of global pandemic of the novel coronavirus.
The petitioner’s counsel seeking parole under the government notification argued that the POSCO act was not found in the special acts as referred in the provisions under which parole was not allowed and submitted that their client was entitled to get the benefit of the government order. The conflicting opinions in two different judgments of the high court also raised a question of law, where in the case of Vijendra Malaram Ranwa's case the divisional bench held that emergency parole can be granted to the petitioner convicted under POSCO act but in the case of Sardar s/o. Shawali khan the divisional bench held that provision did not cover the cases under the POCSO act as eligible for the emergency parole.
The court held that the divisional bench in the case of Sardar s/o. Shawali khan made the correct interpretation and was correct in denying parole. The court held that the language of a provision of government notification can be interpreted as a rule denying emergency parole to offenders under the POSCO act since it provided for rejection of parole to offenders under special acts which were serious in nature and posed threat to society, moreover, the court observed that use of words 'like' and 'etc' in the provision shows that reference to special acts was not exhaustive. The court held that while the intention of the government notice was to reduce the spread of the virus in the prison by reducing overcrowding, the motive of special provision rejecting parole to some serious offenders cannot be ignored and further said that “ It was thus observed that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society." The court finally upheld the decision in the case of Sardar s/o. Shawali khan and rejected the rule laid down in Vijendra Malaram Ranwa's case and held that the POSCO act would be covered under the special acts in the provision which were denied emergency parole under the government notification.
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