Convict Under POCSO Act Not Barred From Seeking Parole, Discretion Vested In Competent Authority To Grant It Under 'Special Circumstances': Delhi HC

The Delhi High Court has reiterated that a convict under the Protection of Children from Sexual Offences Act, 2012 is not barred from seeking parole, as discretion has been vested in the Competent Authority to grant parole to such a convict under "special circumstances".

Justice Asha Menon added that while there is no doubt true that the Legal Services Authorities at all levels endeavour to provide excellent legal assistance to those in prison, however, to deny the convict an opportunity to engage with other counsel to enable him to make up his mind freely, as to whom he would wish to engage, would violate his constitutional rights to legal representation.

The Court was dealing with a plea seeking release of the petitioner on parole for a period of eight weeks on the grounds of filing Special Leave Petition.

It was submitted on behalf of the petitioner that he was convicted for the offence under sec. 6 of the Protection of Children from Sexual Offences Act, 2012 vide judgment dated 19th December, 2019 and had been sentenced to undergo rigorous imprisonment for a period of 14 years vide order on the sentence dated 18th January, 2020. The conviction was challenged before High court. However, the same was dismissed vide judgment dated 10th August, 2021.

It was argued that the Petitioner was confined in Central Jail No. 5, Tihar and had already undergone incarceration of about 8 years out of rigorous imprisonment for 14 years and fine. It was submitted that he wanted to file an SLP for which he sought parole and also sought parole on the ground of maintaining social-ties with the family.

However, the said application for parole filed before the Home Department, Delhi Government on 19th August, 2021 was dismissed on 18th January, 2022, observing that there were no special circumstances that existed for grant of parole as the convict could file the SLP from the jail itself where free legal aid was available to all prisoners.

On the other hand, it was argued on behalf the State that the reason for dismissal was very clear and the Parole Rules have been followed. It was submitted that the denial of parole was not whimsical and could not be faulted.

The Court was of the view that while the ground in the impugned order did not hold water, it added that the more serious objection was encapsulated in ground (1), namely, that the Rules itself do not permit a prisoner convicted under POCSO Act for parole.

" But this bar is not absolute, for, the competent authority has been vested with "discretion" even in such cases, to grant parole, provided there were special circumstances. It is clear that the impugned order does not refer to the "special circumstances" that were required to be considered and were found insufficient to grant parole. Rather, it is clear that the "special circumstances" or rather their absence, have been referred to only in respect of the filing of an SLP, but not for the entitlement of the applicant for parole under Rule 1211(VII) of the State Prison Rules," the Court observed.

The Court said that the facts of each case would reveal the "special circumstances" for grant of parole and that the Competent Authority should keep in mind the purpose of parole as listed out in Rule 1200 of the Prison Rules.

It added that balancing the two would be an expected exercise of the respondent Department, while recommending parole or rejecting the application.

"In the present case, the petitioner is one who has remained interned in prison for 8 years and more. He has never availed of bail, furlough or parole so far as revealed by the Nominal Roll. This continuous incarceration would be a significant factor for grant of parole. The long incarceration would have disrupted his family life and would have definitely impacted him physically and psychologically," the Court observed.

Noting that all the objectives listed in Rule 1200 were applicable to the petitioner, the Court also noted that the had maintained good conduct and discipline in the prison at all times.

"There is no reasonable apprehension that the petitioner, if released on parole, may not return back to jail to undergo the remaining portion of the sentence awarded to him, or that he may escape the law, or that he may once again indulge in the same activity. Since the appeal has been already disposed of, there is no possibility of his intimidating or harming those who have deposed against him. In fact, the Status Report does not reveal any such possibility," the Court said further.

Accordingly, the plea was allowed while directing the concerned Jail Superintendent to release the petitioner on parole for a period of eight weeks on his furnishing a personal bond and surety in the sum of Rs.10,000.

Case Title: RAKESH @DIWAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 424

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