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The Protection of Children from Sexual Offences Act was enacted in 2012, and it was a special law to protect the children from any explicit act. The Act is usually referred to as the POCSO Act. Any individual below eighteen years of age in this Act is referred to as a child and is protected from sexual assault, sexual harassment and pornography while safeguarding the child's interest at each frame of the judicial process by including child-friendly reporting mechanisms, recording and investigating. 

The matter of leave of the above-convicted person came into the light when the pandemic hit the Country in 2020, and the Courts feared the overcrowding to be a cause of the spread of the Covid-19. 

The parole matter for POCSO convicts

Highlights:

The convicts under the POCSO Act cannot aid emergency parole because of the Supreme Court's regulations to decrease overcrowding jails due to the COVID-19 pandemic. Though the provision of Rule 19 of the Maharashtra Prisons Rules did not explicitly specify the POCSO Act, the 2012 law becomes concealed under the headline of special Acts and severe crimes, which are inappropriate emergency parole in light of the COVID-19.

The announcement published by the state home department by which Rule 19 of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, has been revised to provide decongestion of jails by allowing several prisoners parole and leave observing the pandemic. The provision to Rule 19 affirms that those sentenced for severe financial offences or bank scams or crimes under special Acts other than the Indian Penal Code, such as MCOCA, NDPS, UAPA, the Prevention of Money Laundering Act – which produce further limitations on the allowance of bail – shall not be freed on parole.

The full bench was directing upon a petition filed by a person condemned under the POCSO Act, who is currently completing a punishment of ten years in a city prison. The appeal had first arisen before a division bench of the Bombay High Court that introduced it to the full bench after petitioner's advocate Rupesh Jaiswal pointed out two negative judgements on the matter.

The Nagpur High Court bench lately held that there did not prevent implementing emergency parole to POCSO prisoners considering the Act wasn't specified in the provision. However, the HC's Aurangabad bench had lately refused emergency parole to a person sentenced under the Terrorist and Disruptive Activities (Prevention) Act despite the 1987 Act now is annulled.

Advocate Jaiswal had reported to the court that the list of Special Acts in this provision was exhaustive. Considering the POCSO Act was not expressly specified, convicts following the law were also allowed to COVID-19 emergency parole, he had argued.

Jaiswal had also stated that the POCSO Act itself did not inflict any added constraints; consequently, his client was fit for emergency parole. The state's counsel, YP Yagnik, had argued that the Supreme Court had said emergency parole could not be observed as a matter of right by convicts. Finally, a larger bench held that the "POCSO Act was covered under the proviso of Rule 19."

Case Study

In recent times, the Bombay High Court comprising three bench Judge; Justice KK Tated, GS Kulkarni and Justice NR Borkar, held that persons convicted under the Protection of Children from the Sexual Offences (POCSO) Act could not avail emergency parole provided because of the Supreme Courts directions to decongest prisons due to Covid-19. 

The petitioner's advocated for parole supporting the government's announcement, debated that the POCSO act was not observed in the special acts as mentioned in the provisions under which parole was not permitted and proffered that their client was entitled to get the advantage of the government order. The contradictory evaluations in two different judgments of the high court also constructed a question of law.

In the case of Vijendra Malaram Ranwa v. State of Maharashtra & anr. The divisional bench regarded that emergency parole could be awarded to the petitioner convicted under the POCSO act but in the case of Sardar s/o. Shawali Khan, the divisional bench, held that the provision did not cover the claims under the POCSO act as eligible for parole in emergencies.

The court regarded that the divisional bench in the case of Sardar s/o. Shawali Khan delivered the correct analysis and was suitable in refusing parole. 

The court held that the expression of a provision of government notification could be construed as a rule refusing emergency parole to offenders under the POSCO act considering it rendered for dismissal of parole to offenders under special acts which were severe and posed a threat to society; moreover, the court perceived that use of terms 'like' and 'etc.' in the provision explains that connecting to specific acts was not exhaustive. 

The court held that while the government notice intended to reduce the spread of the virus in prison by decreasing overpopulation or overcrowding, the purpose of special provision refusing parole to some dangerous offenders cannot be overlooked and considerably said that, it was thus perceived that while administering out humane approach to the prisoners, care has to be taken to secure that humanity to the prisoners does not occur in evil to the society. The court finally confirmed the judgment in the case of Sardar s/o. Shawali Khan refused the rule laid down in Vijendra Malaram Ranwa's case and believed that the POCSO act would be included under the special acts in the provision that were rejected emergency parole government notification.

The court cannot be unmindful that when the accused is sentenced for seven years and above under the POCSO Act's provisions, it is unquestionably a punishment for a severe offence concerning society, especially society at large. The court also clarifies that they are not inclined to receive the explanations that simply because the POCSO Act is not falling under the special Acts as mentioned in the provision, the convicts imprisoned under the Act can avail the benefit of emergency parole.