The Bombay Court while hearing a petition by an inmate who was seeking parole on the basis of spread of the covid 19 in jails observed that the High Courts must use their discretion while granting parole to individuals charged under offences of special acts. In the present matter of Pintu S/o. Uttam Sonale (C-10855) versus The State of Maharashtra, [CRIMINAL WRIT PETITION (STAMP) No.3206 of 2020], the appellant was charged under sections 3,4 and 5 of the POCSO Act prayed for parole contending that the recent amendment brought about to Rule 19 (1) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, allowed for release of convicted prisoners on emergency parole under sub rule ( C) of Rule 19 (1), which was in pursuance of the notification issued by the State Government under the Epidemic Diseases Act, 1897.
The court set up a high power committee while using its discretionary powers made two categories of people/ inmates who could be released on emergency parole- “ The convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough), for a period of 45 days or till such time that the State Government withdraws the Notification under The Epidemics Act, 1897, whichever is earlier.
The aforesaid directions shall not apply to undertrial prisoners or convicted prisoners booked for serious economic offences / bank scams and offences under Special Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA, etc., (which provide for additional restrictions on grant of bail in addition to those under CrPC) AND also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra.”
The Committee referred that “an exception be made to grant interim bail to the under trial who fell in the following categories of offences: (1) Indian Penal Code a) IPC – Chapter VI –Offenses against State– IPC 121 to 130 b) IPC – 303 c) IPC – 364(A), 366, 366(A), 366(B), 367 to 374 d) IPC – 376(t) to (e) e) IPC – 396 f) IPC 489(a) to (e) g) Bank Frauds and Major Financial Scams (2) SPECIAL ACTS a) MCOC, TADA, POTA, UAPA, PMLA, Explosives Substances Act, Anti Hijacking Act b) NDPS (Other than personal consumption) c) MPID d) POCSO e) Foreigners in Prison”.
The court stated that “We cannot be unmindful that the Special Acts so mentioned in the proviso if read applying the principles of ejusdem generis, the common thread running through all these enactments is of the offences committed under these enactments being serious offences, affecting the society at large. This is the primary and principal focus to provide for the illustrative names of the special acts and to keep open inclusion of several other enactments which may be alike and dealing with serious offences. In our opinion, no other meaning can be attributed when the intention of the proviso itself is to keep open inclusion of other special acts without they being specifically referred in the proviso.”
Also that “In our clear opinion the Special Acts like POCSO and/or TADA are certainly required to be read in the proviso so as to make sub-rule (C) (ii) inapplicable to the category of convicts falling therein”.