Bombay HC concludes hearing on parole for convicts under special acts

The full bench of the Bombay high court (HC) on Thursday concluded hearing of the reference made to it by a division bench on whether persons convicted under the

The full bench of the Bombay high court (HC) on Thursday concluded hearing of the reference made to it by a division bench on whether persons convicted under the Protection of Children from Sexual Offences (Pocso) Act were eligible for emergency parole.

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The advocate for the petitioner, who is currently serving a sentence of 10 years, submitted that as the Pocso Act did not allow any additional restrictions to be put on convicts like in other special acts, and as his client had already served a large portion of his sentence, he should be eligible for emergency parole. The state opposed it saying that the Supreme Court (SC) had clarified that bail could not be sought as a matter of right, and hence as per the high-power committee (HPC) guidelines, the petitioner and all others convicted under special acts such as Terrorist and Disruptive Activities (Prevention) Act, Maharashtra Control of Organized Crime Act, Prevention of Money Laundering Act, Maharashtra Protection of Interest of Depositers (In Financial Establishments) Act, Unlawful Activities (Prevention) Act and others could not seek bail under the pretext of the pandemic situation.

The bench of justices KK Tated, GS Kulakarni and NR Borkar, while hearing the reference petition, was informed by advocate Rupesh Jaiswal for the petitioner that there were four grounds on which he was seeking the benefit of emergency parole for his client.

While enumerating the grounds, Jaiswal said though the HPC guidelines had mentioned that convicts under special acts would not be eligible for emergency parole, it had only said that the list of special acts was exhaustive, hence it could be construed that the guidelines either included or excluded convicts under Pocso Act. Secondly, he said that as Pocso Act, itself, did not allow any additional restrictions to be put on convicts, hence his client was eligible for the same. Thirdly, Jaiswal stated that as his client had served almost seven-and-a-half years of his sentence with good conduct, as per a SC direction which permitted persons undergoing sentences of more than seven years to be eligible for parole, his client was a fit case for the benefit of the emergency parole. Lastly, Jaiswal submitted that as the HPC guidelines were only meant for under-trials, the various criteria laid down by the HPC did not apply to his client and other convicts.

While replying to the query by the court in the previous hearing on November 3 on the stand of the state with regards to extending the benefit of emergency parole to persons convicted under special acts, public prosecutor YP Yagnik submitted that parole and furlough rules had specified the eligibility criteria and the HPC had considered the same while issuing its guidelines for release of prisoners on emergency bail and parole. He further submitted that even the SC had clarified in its order dated September 22, 2020 that the benefit of emergency bail or parole cannot be asked as a matter of right.

Yagnik further submitted categorisation of criminals by the HPC was in the larger public interest and that of the nation, and hence they could not be rigidly interpreted to narrow down the extent of punishments in each of the special act. Yagnik concluded the arguments on behalf of the state by saying that just because a convict was not entitled to regular bail or parole, he cannot take advantage of the current situation and seek parole in the garb of the pandemic and the May 8, 2020 notification.

After hearing the submissions, the bench said that the hearing was concluded and it would pass orders on Friday at 3pm.