C A PIOUS Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant, petitioner in the original lis is undergoing sentence for an offence under Section 302 of the Indian Penal Code. He has been on study leave for 6 years 10 months and 13 days. He availed of this leave during the period of imprisonment. In the Writ Petition filed by him he sought this period to be included in the sentence imposed upon him. If the period as referred to above, is taken as period of sentence undergone, it is further his case that he would be eligible for release. His plea for a direction to be issued to the respondents, i.e. The State of Kerala and Superintendent of Central Prison, Kannur to treat the period of study leave as period of sentence already undergone and direct the second respondent to consider his name for release on parole, however, failed before the learned Single Judge vide order dated 30.3.2005 recorded in W.P. (C) No. 11012 of 2004. It is against this order that the present Writ Appeal has been filed.

(2.) The respondents in the counter affidavit filed by them however pleaded that no kind of remission can be treated as part of the actual sentence undergone and therefore the appellant was not eligible to have his case placed before the Prison Review Committee as he had not completed the mandatory period of 8 years of actual sentence. The details of the sentence since the date of commencement of sentence were detailed in the counter affidavit which reads as follows: <p>Date of sentence : 10.12.1991 Period covered as on 18.2.2005 : 13 years 2 months 8 days from the date of sentence Less period of suspension of sentence : 6 years 10 months 13 days Actual imprisonment undergone : 6 years 3 months 25 days Add remand period undergone : 1 month 17 days Total period undergone : 6 years 5 months 12 months

(3.) It appears from a reading of the impugned judgment passed by the learned Single Judge that the desired relief was sought by the appellant on the basis of Rule 461 of the Kerala Prisons Rules. Based on the provisions of the said rule it was argued that the period of leave has to be taken as period of sentence undergone. The appellant also places reliance upon Rule 280-A by contending that the said rule provides release of a person undergoing a sentence of imprisonment for the purpose of study and that it provides that such release shall be governed by the rules if any issued by the Government in this behalf. While considering the rule aforesaid and also Rule 225(2) the learned Single Judge observed as follows: