Set-off period prior to conviction cannot be included in remission calculations under the Kerala Prisons Act.

J U D G M E N T

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 1^st 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, 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 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 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 Pr