JUDGMENT :

(Manish Pitale, J.)

1. Rule. Rule made returnable forthwith. With the consent of learned counsel appearing for the parties, heard finally.

2. By this writ petition, the petitioner has challenged the order dated 19th September, 2020 passed by respondent No.4 whereby application for grant of emergency Covid-19 parole was rejected on the ground that he had not availed of furlough/parole leave even once earlier.

3. The petitioner is undergoing sentence of imprisonment imposed upon him as per judgment and order dated 22nd July, 2019 passed by the Sessions Court for the offences punishable under Sections 376(2) and 506 of the INDIAN PENAL CODE and the appeal preferred by him against the said judgment and order is pending.

4. In view of Covid-19 pandemic and the amendment in the Prisons (Bombay Furlough and Parole) Rules, 1959, the petitioner applied for grant of emergency Covid-19 parole. The application was rejected by the aforesaid impugned order only on the ground that the petitioner had not availed of furlough leave, even once in past.

5. Mr.Chaudhari, learned counsel appearing for the petitioner, submitted that the only ground stated in the impugned order was unsustainable because the amendment brought in the Prisons (Bombay Furlough and Parole) Rules, 1959 was specifically intended to give relief of emergency Covid-19 parole to convicts like the petitioner and that non availing of facility of furlough leave or parole even once before, could not be a ground for rejecting the application of the petitioner. It was submitted that the application of the petitioner was not considered properly on merits at all by respondent No.4.

6. On the other hand, Mr.Konde-Deshmukh, learned APP appeared on behalf of the respondent/State and opposed the grant of emergency Covid-19 parole. It was submitted that now the situation in the Nashik Road Central Prison, Nashik had changed substantially. It was submitted that the number of inmates in the said prison are less than the capacity. It was submitted that there is no crowd in the jail and that the authorities had sufficient infrastructure now to immediately take care of any inmate or staff, who may suffers from Covid-19 virus. On this basis, it was submitted that the petitioner could be permitted to apply afresh for grant of emergency Covid-19 parole.

7. The ground raised on behalf of the petitioner to challenge the impugned order appears to be justified because this Court has already taken a view in case of Kalyan s/o Bansidharrao Renge Vs. The State of Maharashta & Anr. (Criminal Writ Petition No.ASDB-LD- VC 265 OF 2020) and Uzair @ Hujer S/o Rafiq Shaikh Vs. The State of Maharashtra & Ors. (Criminal Writ Petition No.2989 of 2020) that non availing of parole or furlough leave, even once earlier, cannot be a ground to reject the application for grant of emergency Covid-19 parole. To that extent, the case of the petitioner is clearly covered in his favour.

8. But, at the same time, the fact situation on ground as on today, cannot be ignored and, therefore, there is substance in the contention raised on behalf of the learned APP that the request of the petitioner for grant of emergency Covid-19 parole needs to be considered afresh.

9. In view of the above, the writ petition is partly allowed. The impugned order is quashed and set aside. The petitioner is granted liberty to apply afresh for grant of emergency Covid-19 parole. In case, such an application is submitted by the petitioner, respondent No.4 shall dispose of the same, within two weeks of submission of such application, in the light of the circumstances prevail