The Petitioner in the instant case had approached the High Court of Bombay and prayed that he should be released on emergency parole due to the COVID-19 health crises.
Petitioner was convicted for an offence punishable u/s 379 of IPC and u/s 3,4, and 5 of the POCSO Act. Hon’ble Court held that prisoners convicted of offences under the POCSO Act were not entitled to bail as per notification dated 08.05.2020.
A Division Bench had referred the petition to the Full Bench of Bombay HC.
A Division bench headed by Hon’ble Justice SS Shinde had referred the petition to the full Bench of the Bombay High Court to settle the issue of whether a person convicted under the POCSO Act was entitled to be released on emergency parole as mentioned in Rule 19 (1) (C) of Maharashtra Prison (Furlough and Parole) Rules.
According to the Division Bench, two different opinions were given in two different judgments on this particular issue.
In Sardar s/o Shawali Khan, the Court had held that even though TADA was not mentioned in the minutes of the meeting of the High Powered Committee dated 10.05.2020.
A reference was also made to Rule 4, and in its clause No.12, it was mentioned that prisoners who were considered dangerous or who have been involved in severe prison violence or were convicted under Acts like NDPS were not entitled to get the benefit of Rule 4.
It was further clarified that initially there was no category for releasing prisoners because of a pandemic. Still, after the government notification dated 08.05.2020, the government considered releasing prisoners on emergency parole, but it was subjected to certain conditions.
The Court held that it could not be said that a vested right has been given to prisoners to get immediate parole as it is conditional.
The contention of the Petitioner:-
Counsel for the Petitioner raised a point that since the Petitioner was not convicted under provisions of UAPA, NDPS, MPID MCOC or PMLA so, he should be released on parole.
As per the observation of the Division Bench, the decision rendered in ViJendra Malaram vs the State of Maharashtra was in conflict with Sardar s/o Shawali Khan case. Therefore, the case was referred to a Full Bench to settle the issue.
The decision of the Full Bench:-
The Full Bench of the Bombay High Court after going through both the case laws held that interpretation made by the Court in Sardar vs the State of Maharashtra was correct and it is settled that the prisoners will not get the right to immediate parole and the Courts should look into the nature of crime, severity and other parameters before granting parole or bail.
Accordingly, the case at hand was referred back to the Division Bench as the Full Bench settled the main issue.
Title: Pintu vs the State of Maharashtra
Case No.: Crl. W.P No. 3206 of 2020
Date of Order:06.11.2020
Coram: Hon’ble Justice KK Tated, Hon’ble Justice GS Kulkarni and Hon’ble Justice NR Borkar