The study leave period does not count as custodial sentence for the purpose of premature release, and a minimum of 8 years of actual custody is required for consideration of release.

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Kerala High Court dismissing the writ appeal filed by the appellant.

3.Background facts in a nutshell are as follows:

The appellant is suffering life imprisonment in Central Jail, Kannur in view of the conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC). He made a claim before the State Government that the Kerala Prison Rules, 1958 (in short Rules) provide for release on probation on completion of 8 years of custody. According to him the period of study leave amounting to 6 years 10 months and 13 days have to be reckoned while computing the period of sentence undergone. The prayer was rejected on the ground that the writ petitioner had not suffered 8 years of custodial sentence and, in fact, he had undergone imprisonment for 6 years, 3 months and 25 days to which the remand period of 1 month and 17 days is to be added making a total of 6 years 5 months and 10 days. The High Court found substance in the stand of the State Government with reference to Rule 225(2) that the writ petitioner was not entitled to any relief. A writ appeal was filed before the High Court. The Division Bench by the impugned order held that the case of the writ petitioner could not have been placed before the committee as he has not suffered mandatory period of 8 years of sentence.

4.Learned counsel for the appellant submitted that the period of study has to be reckoned. Reference is made to Rule 461. Learned counsel for the State on the other hand supported the order of the High Court.

5.Rule 280-A provides for suspension of sentence as empowered under Section 432 (6) of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) for the period of leave for the purpose of study. The special rules framed also is captioned as "RULES FOR SUSPENSION OF SENTENCE OF PRISONERS FOR THE PURPOSE OF STUDY". On the other hand, Chapter 26 of the Rules with respect to leave specifies only two kinds of leave i.e. emergency and ordinary. The above rules do not contemplate suspension of sentence and it can also be seen from the same that the maximum period of emergency leave at a stretch is only for a period of 15 days and the ordinary leave up to a maximum of 30 days at a time vide Rule 453. Rule 452B also provides that a prisoner once released on leave of any kind will not be eligible for a subsequent release on leave until the completion of six months of actual imprisonment to be counted from the date of his last return from leave. Emergency leave in Rule 455 is an exception to this as the same is confined to 15 days as noted above and the grounds are death or serious illness of a near relative. On the other hand, during the period of study leave, the sentence stands suspended. The result of suspension of sentence as per Rule 225(2) is that the same is excluded from the period of sentence undergone. Ipsissima verba Rule 225 is as follows:

"225. Procedure when sentence is suspended. (1) When an appellate court directs that the execution of sentence or order appealed against be suspended the appellant shall, if detained in jail pending the further orders of such Appellate Court, be treated in all respects as an under trial prisoner".

(2) Should the appellant be ultimately sentenced to imprisonment the period during which the original sentence was suspended shall (a) if passed in jail, be included, and (b) if passed out of Jail, be excluded in computing the term for which he is sentenced by the Appellate Court".

6.Rule 225 (2) makes the position very much explicit. Rule 461 i.e. the provision for treatment of the period of leave as the sentence undergone cannot be made applicable to the study leave period. The same is abundantly clear from the fact that at the time of commencement of study leave, the sentence stands suspended whereas for the emergency leave or ordinary leave, the above suspension is