Kerala High Court
Shyna Pa vs State Of Kerala Represented By The Chief ... on 11 April, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
WP(CRL.) NO.82 OF 2025
1
2025:KER:32197
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
WP(CRL.) NO. 82 OF 2025
PETITIONER:
SHYNA PA, AGED 52 YEARS,
SHINA MANZIL, P.O VALAPPAD
THRISSUR DISTRICT, PIN - 680567
BY ADV V.T.RAGHUNATH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY.
SECRETARIATE, THIRUVANANTHAPURAM,
PIN - 695005
2 THE SUPERINTENDENT, CENTRAL PRISON,
VIYYUR CENTRAL PRISON, VIYYUR,
THRISSUR, PIN - 680010
BY ADVS.
SHRI.P.NARAYANAN, SR.G.P.
SHRI.SAJJU.S., SR.G.P.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 11.04.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(CRL.) NO.82 OF 2025
2
2025:KER:32197
"C.R."
JUDGMENT
The petitioner is the wife of Mr. Roopesh, a convict, who
has been undergoing sentence in Central Prison, Viyyur, from
12.04.2024 onwards.
2. The convict was the 1st accused in S.C.No. 3 of 2016 of
the Special Court for the trial of NIA Cases, Ernakulam (for
short, the trial court), which arose out of Crime No.142 of 2014 of
Vellamunda Police Station. He was formally arrested in Crime
No. 142 of 2014 on 09.07.2015 while he was undergoing judicial
custody in another crime. After his formal arrest on 09.07.2015,
he was undergoing pre-trial detention till he was sentenced in
S.C.No. 3 of 2016 on 12.04.2024.
3. The convict faced trial for the offences punishable
under Sections 120B, 124A, 143, 147, 148, 149, 427, 435, 452 and
506(ii) of IPC, Section 25 of the Arms Act, 1959 and Sections 10,
13, 16, 20, 38 and 39 of the Unlawful Activities (Prevention) Act,
WP(CRL.) NO.82 OF 2025
2025:KER:32197
1967. After trial, the trial Court convicted him for the offences
punishable under Sections 120B, 143, 147, 148, 149, 427, 435,
452 and 506 (ii) of IPC, and Sections 16, 18, 20, 38 and 39 of
Unlawful Activities (Prevention) Act, 1967. He was sentenced to
various terms of imprisonment and fine with default sentences as
per the judgment of sentence dated 12.04.2024. He was allowed
set-off for the period from 09.07.2015 to 11.04.2024. The
judgment also directed the substantive sentences to run
concurrently.
4. The set-off period allowed was 8 years, 9 months and
3 days from 09.07.2015 to 11.04.2024. The highest term of
imprisonment awarded to the convict was 10 years. According to
the petitioner, the set-off allowed for the period from 09.07.2015
to 11.04.2024 has to be counted for the purpose of remission of
the sentence as provided under Section 72 of the Kerala Prisons
and Correctional Services (Management) Act 2010, (for short 'the
Kerala Prisons Act') and Rules 376, 379, 381 and 382 of the
WP(CRL.) NO.82 OF 2025
2025:KER:32197
Kerala Prisons and Correctional Services (Management) Rules
2014, (for short, 'the Kerala Prisons Rules').
5. The convict filed a petition before the trial court as
CMP No.120/2024 to give directions to the prison authorities to
provide remission under Section 72 of the Kerala Prisons Act to
him for the set-off period. The trial court allowed the said
petition and gave directions to the prison authorities to consider
the set-off period as well while fixing the time from which
remission entitlement is calculated under Rule 380 of the Kerala
Prisons Rules. Thereafter, the matter was considered by the jail
authorities and Ext.P3 order was passed, finding that the convict
cannot be granted remission during the set-off period. The said
order is under challenge in this writ petition.
6. I have heard Sri. Raghunath, the learned counsel for
the petitioner and Sri. P.Narayanan, the learned Special Public
Prosecutor.
7. The learned counsel for the petitioner submitted that
WP(CRL.) NO.82 OF 2025
2025:KER:32197
Ext.P3 order excluding the period of set off for allowing
remission to the convict is illegal and against the provisions of
the Kerala Prisons Act and the Rules. The learned counsel further
submitted that as per Section 428 of Cr.P.C, the period of set-off
has to be treated as the period of sentence and hence the finding
in Ext.P3 that the set-off period should be excluded in computing
the remission cannot be sustained. Reliance was placed on the
decision of the Patna High Court in Satish Kr.Gupta and
Others v. State of Bihar and Others [1991 KHC 1350]. On
the other hand, the learned Special Public Prosecutor submitted
that the period underwent by the convict in jail during the
remand period cannot be treated as part of the sentence so as to
count for the remission entitled by him under the provisions of
the Kerala Prisons Act and the Kerala Prisons Rules. The learned
Special Public Prosecutor further submitted that Ext.P3 order is
in tune with the provisions of the Kerala Prisons Act and the
Kerala Prisons Rules, and it does not warrant any interference.
WP(CRL.) NO.82 OF 2025
2025:KER:32197
8. Section 428 of Cr.P.C. (Section 468 of BNSS) deals
with set off. It provides that where an accused person has, on
conviction, been sentenced to imprisonment for a term, the
period of detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and before the
date of such conviction, shall be set off against the term of
imprisonment imposed on him on such conviction, and the
liability of such person to undergo imprisonment on such
conviction shall be restricted to the remainder, if any, of the term
of imprisonment imposed on him. As stated already, in this case,
the convict was entitled to set off for a total period of 8 years, 9
months and 3 days.
9. Section 72 of the Kerala Prisons Act deals with
remission to prisoners. It says that remission may be granted to
convicted prisoners as may be prescribed in the Rules and a
Remission Committee consisting of the Superintendent and such
other officers to oversee the calculation and computation of
WP(CRL.) NO.82 OF 2025
2025:KER:32197
remission to convicted prisoners shall be constituted. Rule 376 of
the Kerala Prisons Rules stipulates that all convicted prisoners
who have good behaviour and conduct are eligible to be granted
ordinary remission. As per Rule 379 (a), remission shall be
awarded two days per month for thoroughly good conduct and
scrupulous attention to all Jail regulations and two days per
month for industry and the due performance of the daily task
imposed. Similarly, Rule 381 deals with additional remission to
prison servants. It provides that prisoner employed in Jail
services, such as cooks, who are engaged in farm duty and who
work on Sundays and holidays, may be awarded two days of
ordinary remission per quarter in addition to any other
remission earned under the Rules. Rule 382 deals with the award
of remission for good conduct. It says that a prisoner who has
committed no prison offence whatsoever shall be awarded fifteen
days of ordinary remission in addition to any other remission
earned under the Rules. According to the convict, he is entitled to
WP(CRL.) NO.82 OF 2025
2025:KER:32197
the remission provided under Rules 376, 379, 381 and 382 of the
Kerala Prisons Rules.
10. The crucial question that falls into consideration is
whether the period of set-off should be treated as part of the
period of confinement of the prisoner who is undergoing the
sentence imposed on him and whether the set-off period should
be included in computing the quantum of remission.
11. A prisoner can seek remission of sentence only in
accordance with statutory provisions dealing with remission. As
per Section 72 of the Kerala Prisons Act, remission is granted
only to a convicted prisoner. Rule 376 of the Kerala Prisons Rules
stipulates that all the prisoners who are convicted and have good
behaviour and conduct are eligible for ordinary remission. Rule
380 of the Kerala Prisons Rules provides that remission under
Rule 376 shall be granted from the first day of the next calendar
month after the conviction of the prisoner. Thus, entitlement of
remission arises only when an accused is convicted and admitted
WP(CRL.) NO.82 OF 2025
2025:KER:32197
to prison as part of undergoing the sentence of imprisonment. So
much so, the period of detention prior to the conviction cannot
be counted for remission. The very same issue came up for
consideration before the Supreme Court in Government of
Andhra Pradesh and Another v. Anne Venkatesware
and Others [(1977) 3 SCC 298]. The question posed before the
Supreme Court was whether the period of detention undergone
by the convict before his conviction could be treated as a part of
the period of imprisonment on conviction so as to entitle him to
remission of his sentence under the Prisons Act. Interpreting
Section 428 of Cr.PC and the provisions of the Prisons Act, it was
held that a prisoner has no right to benefit from remission for the
period during which he was an under-trial prisoner prior to his
conviction. The High Court of Patna in Satish Kr. Gupta
(supra) took the view that set-off must be regarded as part of the
sentence, and as such, the set-off period should be included in
computing the remission. However, the said judgment was
WP(CRL.) NO.82 OF 2025
2025:KER:32197
delivered without noticing the decision of the Supreme Court in
Anne Venkatesware (supra).
12. Section 428 of Cr.P.C.(Section 468 of BNSS) provides
that the period of detention of an accused prior to the date of
conviction as an undertrial prisoner shall be set off against the
term of imprisonment imposed on him on conviction. The
Section only provides for 'set off', it does not equate an undertrial
detention or remand detention with imprisonment on
conviction. Thus, the set-off period under Section 428 cannot be
regarded as part of the sentence imposed. Nor could the set-off
period be counted in computing the quantum of remission.
Therefore, the contention of the petitioner that the set-off
allowed for the period from 09.07.2015 to 11.04.2024 has to be
counted for the purpose of remission of the sentence as provided
under Section 72 of the Kerala Prisons Act and Rules 376, 379,
381 and 382 of the Kerala Prisons Rules cannot be accepted. As
the convict was convicted in April 2024, he is eligible for
WP(CRL.) NO.82 OF 2025
2025:KER:32197
remission only with effect from May, 2024.
For the reasons stated above, the finding in the impugned
order that remission cannot be granted to the convict during the
set-off period does not call for any interference. The writ petition
fails, and accordingly, it is dismissed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
WP(CRL.) NO.82 OF 2025
2025:KER:32197
APPENDIX OF WP(CRL.) 82/2025
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE ORDER IN CMP
120/2024 IN SC 3 OF 2016 NIA DATED
09.05.2024 OF THE SPL. COURT II NIA
ERNAKULAM
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE APPLICATION
FILED BY ROOPESH DATED 17.05.2024 BEFORE
THE 2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS/ORDER NO.
CPV 01 (R) 01/2024 DATED 24.05.2024 OF
THE 2ND RESPONDENT
