KUTTIPENNU Vs. UNION OF INDIA

JUDGEMENT

(1.) THE original petitioner died during the pendency of the case and supplementary petitioners are impleaded. The brief facts necessary for the disposal of the case are the following: -

(2.) THE original petitioner was the widow of Sri.Sankaran Krishnan a freedom fighter who was convicted for the participation in the Punnapra -Vayalar Struggle. He belonged to Scheduled Caste. It is averred that on account of his participation in the said struggle, he had undergone under -trial imprisonment for a period of about one year from Makaram 1122 ME to Makaram 1123 ME in the defunct Sub Jail, Alappuzha in case No.PE.5/1122 ME on the file of the Special Magistrate Court, Alappuzha and undergone rigorous imprisonment for three months in Case No.SC.1/1123 ME. Ext.P1 is the true copy of the extract of the convict register of the Central Prison, Thiruvananthapuram produced in support of the above. He was a holder of Thamrapatra, which fact is evidenced by Ext.P2 letter of the District Collector. He was granted the Kerala Freedom Fighters Pension as early as on 01/04/1971 which is evidenced by Ext.P3. After his death the widow was allowed the benefits. Ext.P4 is the application submitted by the original petitioner for grant of pension. She had produced the required documents along with the application. Ext.P6 shows that they belong to Hindu Paravan Community which is recognised as Scheduled Caste. Going by Ext.P7 it is evident that the application was received by the first respondent on 15/06/1998. The matter was under various communications. The petitioner has produced the non -availability of records certificate issued by the Superintendent of Sub Jail, Alappuzha, Ext.P5 and an affidavit duly attested by the Judicial First Class Magistrate -I, Cherthala, Ext.P9.

(3.) THE learned counsel for the petitioner submitted that it is evident from Ext.P1 itself that he was convicted and sentenced for three months rigorous imprisonment and he was released on 30/08/1123 under order of Government vide G.O.R(DIS) 1216/48/Judl dated 10/04/1948. Actually going by column (18) of Ext.P1, the date of expiry of sentence is 4 Medam 1123. Herein he was released on the 30/08/1123, obviously, by grant of remission by the Government. It is therefore submitted that premature release shall not be taken as a ground to reject the application itself. Reliance is placed on the Division Bench decision of this Court in Pappu Kesavan v.Union of India [1996 (2) KLT 1035] to contend for the position that premature release after grant of remission shall not be taken as a factor to reduce the period of imprisonment. My attention is invited to paragraph (7) of the above judgment. After considering the relevant facts it has held that for counting the period of imprisonment the Central Scheme provided that the actual period of sentence should be counted including the remissions. That can be seen from Explanation -I to the first eligibility clause dealing with imprisonment. The second explanation reads thus: "period of normal remission upto one month will be treated as part of actual imprisonment". In that view of the matter and in view of the other facts discussed in paragraph (9) of thejudgment Their Lordships held that the appellant in that case was entitled to the pension under the Central Scheme. In a decision of the Full Bench of this Court namely in Union of India v. Peter Devassia [2003(1) KLT 467] it has been held that a freedom fighter who was convicted for participation in freedom struggle, is entitled to count his under trial period towards actual suffering, without undergoing jail suffering during the period of trial even for a day. After considering the purpose of explanation 3 to the effect that " in the case of a trial ending in conviction, under trial will be counted towards actual imprisonment suffered", it was held that it is immaterial whether he was under detention or on bail or otherwise during the trial period. But in a case where the trial did not end in conviction, the under trial period (not imprisonment) will not be counted towards imprisonment. Thus by fiction certain period which in reality cannot be counted towards actual imprisonment is deemed as imprisonment by virtue of Explanation 3. Going by the said dictum also it is clear that the period covered by the trial of the case will also make him eligible for grant of pension. In this case the imprisonment is for three months. The view taken by first respondent is, because of his premature release, the period of imprisonment is only 86 days and not three months. As noticed already, he was released on 30/08/1123 under Government Order dated 10/04/1948. Such release can be ordered by the Government only by the grant of remission. Therefore, the remaining period of 4 days could itself be taken as period of remission in the light of the Government Order. If so going by the dictum laid down in Pappu Kesavans case [1996 (2) KLT 1035], the period of remission can be counted. If that is so, by counting four days, the total period will be three months. It is the well accepted position under the Scheme that as far as members of Scheduled Castes are concerned, the minimum three months imprisonment alone is required for making them eligible for pension. Apart from that going by the decision of the Full Bench referred to above, the period during which the person was under trial could also be counted. Even though there is no data available here it is clear that the trial would have gone for a considerable long period, being a sessions case, atleast for more than four days. Therefore, even those periods could also be counted towards three months period.