Dharmadhikari, J.

1. Rule. Respondents waive service. By consent rule made returnable forwith.

2. A very short question is involved in this petition under Article 226 of the Constitution of India. It is directed against an order passed by the Competent Authority exercising powers under Prisons (Bombay Furlough and Parole) Rules, 1959.

3. The petitioner is the original accused No.1 in Sessions case No.489 of 2010. He was arrested on 3rd April 2010 by Hinjewadi Police Station for offences punishable under section 376(2), 366, 342, 506(II) read with 120(B) of Indian Penal Code. On 21st October he was convicted and sentenced to suffer life imprisonment by the Sessions Court, Pune. He preferred an appeal before this Court. It appears from the record that his appeal is pending.

4. The petitioner has referred to the prosecution case in some details but what we find is that it is not relevant as the conviction and sentence has been recorded for the offences punishable inter alia under section 366 of Indian Penal Code.

5. The petitioner was lodged in the prison; has undergone substantial sentence. According to him, he applied for furlough leave but that application was rejected on 16th April 2012 by the Competent Authority and a copy of the said order in that behalf is at Annexure “A”.

6. The petitioner preferred an appeal before the appellate authority namely, Inspector General (Prisons), Pune and the petitioner states that his appeal was rejected by the order dated 30th October 2012.

7. The case of the petitioner is that though his brother in law filed an affidavit that he would stand surety for the petitioner and that he undertakes that the petitioner will surrender after furlough leave period is over, still, the competent authority and the appellate authority ignored this affidavit and rejected his furlough leave application. Aggrieved thereby, this petition has been filed.

8. Mr. M.M.Najmi, learned Counsel appearing for petitioner submitted before us that the competent authority has rejected petitioner's application on the ground that the Assistant Commissioner of Police (Crime-II), Additional Commissioner of Police (Crime) Pune City have given an adverse report and that the petitioner is likely to abscond if released on furlough leave. The appellate authority has travelled much beyond this and held that firstly, the furlough leave is not the right of the prisoner. The petitioner is a habitual offender and there are ten crimes registered against him at the Hinjewadi police station. Thirdly, there are adverse reports of the above two authorities dated 29th March 2012.

9. Finally, Mr.Najmi submits that the rejection is also on the ground that the petitioner is convicted and sentenced to suffer imprisonment for offences punishable under section 366 of Indian Penal Code. Such a person is not entitled to furlough leave in terms of Rule 4 of the Prisons (Bombay Furlough & Parole) Rules, 1959 (for short 1959 rules). Mr.Najmi submits that the reasons namely, the nature of the offence, its gravity and it being under section 366 of Indian Penal Code cannot be said to be a valid ground for rejection of furlough leave. Mr.Najmi has also handed over written submissions in which there is a challenge raised to the provisions by which the authorities are empowered to refuse furlough leave in case of convicts/ prisoners undergoing sentence for the offences of kidnapping. Mr.Najmi submits that the main offence for which the petitioner has been convicted is under section 376(2)(g) and directed to undergo life imprisonment. Other offences punishable are under section 366 and for which sentence is of 10 years. The petitioner is, therefore, undergoing only one sentence and that is for the main offence. The lesser offences merge into the main offence. The petitioner cannot be taken to be undergoing two separate sentences and, therefore, the doctrine of merger is applicable.

10. Mr. Najmi submits that when a person is convicted for kidnapping,