The court ruled that parole eligibility is determined by the rules in force at the time of conviction, not by subsequent amendments, ensuring the principle of non-retroactivity in law.

ORDER :

Heard.

2. The petitioner herein was convicted for commission of offences punishable under Section 6 of POCSO Act and sentenced to life imprisonment by the trial court vide judgment dated 04.07.2016 in Sessions Case No.84/2014. The judgment of conviction and sentence was affirmed in appeal also.

3. After having successfully availed three parole, to which the petitioner was legally entitled to, he applied for grant of permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958, (hereinafter referred to as 'the Rules of 1958') (which were applicable on the date of conviction).

5. However, the application has been rejected on the ground that in view of proviso to Rule 9 of the Rules of 1958 inserted vide Notification dated 01.06.1994, benefit of permanent parole after completion of 14 years of jail sentence would not apply as death sentence has been provided as the maximum sentence which could be imposed under Section 6 of the POCSO Act.

6. Learned counsel for the petitioner would submit that the proviso to Rule 9 of the Rules of 1958 was inserted by way of an amendment in the year 1994. The date on which the conviction was ordered i.e. 04.07.2016, as on that day, the maximum sentence which could be awarded for commission of offence under Section 6 of POCSO Act was life imprisonment. It is only vide an amendment of Section 6 vide Act of 25 of 2019 under Notification dated 16.08.2019 that maximum sentence of death was provided. Therefore, it is argued that the said provision could not be applied to deny the benefit of permanent parole under proviso to Rule 9 of the Rules of 1958.

7. He would submit that the principles which were applied by Hon'ble the Supreme Court in the case of Hitesh @ Bavko Shivshankar Dave v. State of Gujarat: Writ Petition (Criminal) No.467/2022, decided on 24.01.2023, while holding that the parole rules applicable would be those which were imposed on the date of conviction, are equally applicable in the present case. On the date of conviction, the proviso did not bar petitioner's application for grant of permanent parole because on that day, maximum sentence which could be imposed was life imprisonment as provided under Section 6 (as stood without amendment) and subsequent amendment in Section 6 of the POCSO Act now bars grant of permanent parole by virtue of the proviso to Rule 9 of the Rules of 1958.

8. The subsequent amendment in proviso, if applied in the case of the present petitioner, that would amount to applying retrospectively, the amendment in Section 6 of the POCSO Act. In the case of the petitioner, conviction was ordered on 04.07.2016, prior to substitution of Section 6 in the POCSO Act.

9. Per contra, learned State counsel would argue that the petitioner applied for grant of permanent parole on 19.10.2023. The law applicable on that day under proviso to Rule 9 of the Rules of 1958 did not entitle the petitioner because by the time he applied for permanent parole under Rule 9 of the Rules of 1958, Section 6 of the POCSO Act underwent amendment w.e.f. 16.08.2019. Therefore, while considering eligibility for grant of permanent parole, the proviso has to be read according to the penal provisions which were applicable on the date when the application for grant of parole was submitted.

10. The amended proviso would apply in the case of the petitioner as if he was convicted for commission of offence which was punishable with death but only life imprisonment was imposed.

11. We have heard learned counsel for the parties and gone through the record of the case.

12. It is not in dispute that the petitioner was tried and convicted for commission of offence under Section 6 of the POCSO Act vide judgment of conviction and order of sentence dated 04.07.2016.

13. On the day, when the petitioner was convicted, commission of offence under Section 6 of the POCSO Act provided for punishment as below:-

"[6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commit