Holding

Release on probation was rightly denied; study leave cannot be treated as sentence undergone under the Kerala Prison Rules.

Summary

The appellant, serving a life sentence for murder, applied for release on probation under the Kerala Prison Rules, 1958, which require a minimum of eight years of actual custody. He had served about six and a half years in prison but argued that a six‑year‑plus period of study leave should be counted as time served. The High Court rejected his claim, holding that study leave does not constitute custodial sentence, and the State Government upheld the decision. On appeal, the Supreme Court affirmed that under Rule 225(2) and Rule 461 of the Kerala Prison Rules, only actual imprisonment counts toward the eight‑year threshold and the period of study leave, being a suspension of sentence, cannot be treated as time served. Consequently, the appellant’s request for release on probation was rightly denied. The Court directed that the case be reconsidered only when the appellant has actually served more than eight years of custody.

Issues considered

Whether the period of study leave can be counted as custodial sentence for the purpose of satisfying the eight‑year requirement under Kerala Prison Rules, 1958.
Whether Rule 225(2) and Rule 461 preclude treating study leave as time served.

Legislation cited

Code of Criminal Procedure, 1973s. Section 432(6)
Indian Penal Code, 1860s. Section 302
Kerala Prison Rules, 1958s. Rule 225(2), s. Rule 280-A, s. Rule 452(8), s. Rule 453, s. Rule 455, s. Rule 461

Subjects

release on probationstudy leavecustodial sentenceKerala Prison Ruleslife imprisonmentremissionSection 432 CrPCRule 225Rule 461

Judgment

C.A. PIOUS A
v.
THE STATE OF KERALA AND ANR.

SEPTEMBER 14, 2007

(DR.ARIJITPASAYAT ANDD.K.JAIN,JJ.) B

Kera/a Prison Rules, 1958-r. 225 (2) and 461-Release on probation-
Of convict of life imprisonment-Denial of-On ground that he has not
undergone custodial sentence of 8 years as per the Rules-Claim of the C
convict for treating period of study leave as sentence undergone-Rejection
ofrelease confirmed by Courts below-On appeal, held: Release on probation
was rightly denied-Study leave period cannot be treated as the sentence
undergone-The cas~ of the convict can be considered in accordance with
law, as and when he suffers actual custody of more than eight years-Code
of Criminal Procedure, 1973-s. 432(6). D
Appellant, undergoing life imprisonment, claimed for release on
t- probation under Kerala Prison Rules, 1958. The same was denied by State
Government on the ground that he had not suffered eight years of custodial
sentence as required under the Rules. He had undergone only 6 years 5
months and 10 days of sentence. Appellant claimed that the period of study E
leave i.e. 6 years 10 months and 10 days has to be reckoned while computing
the period of sentence undergone. Single Judge as well as Division Bench of
High Cqurt in respective Writ Petition and Writ Appeal, confirmed the
rejection of claim. Hence the present appeal.

Dismissing the appeal, the Court F

HELD: 1. In view of the clear position emitting from Rule 225 of Kerala
Prison Rules, 1958, the High Court's judgment does not suffer from any
infirmity that, to be entitled to benefit, convict has to suffer at least 8 years of
custody. Rule 461 i.e. the provision for treatment of the period of leave as the G
sentence undergone, cannot be made applicable to the study leave period. The

.
_1
,
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 not contemplated under Chapter

989 H
990 SUPREME COURT REPORTS [2007] 9 S.C.R.

A 26 of the Rules. It is also seen from Rule 453 that the period of emergency
and ordinary leave are confined to a short period and the same is not granted -J:,
continuously and also that a gap of six months is contemplated as per Rule
452(8) for further release of a prisoner granting ordinary leave. Emergency
leave vide Rule 455 is limited to extreme situations like death or serious
illness. But so far as study leave is concerned, the same is granted somewhat
B liberally. The appellant himself was outside the prison for more than six years.
He was outside the prison more than the period he spent inside.
[Paras 8 and 6) (992-B, C, D, H; 993-A]

Maru Ram v. Union of India and Ors., [1981) l SCC 107, referred to.
c 2. As and when the appellant suffers actual custody of more than 8 years,
let his case be considered in accordance with law by the concerned authorities.
[Para 10) (996-FJ

CRIMfNAL APPELLATE JURISDICTION : Criminal Appeal No. 1222 of
D 2001.
From the Judgment and Order dated 21.02.2006 of the High Court of
Kerala at Ernakulam in W.A. No. 2007 of2005.

T.N. Singh, V.K. Singh and Rohit Pandey for the Appellant.
E G. Prakash for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

F 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. · l.

3. Background facts in a nutshell are as follows:

The appellant is suffering life imprisonment in Central Jail, Kannur in
G 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
releas~ on probation on completion of 8 years of custody. According to him
the period of study leave amounting to 6 years I 0 months and 13 days have
H to be reckoned while computing the period of sentence undergone. The
.'r-

•C.A.PIOUSv.STATEOFKERALA [PASAYAT,J.] 991

prayer was rejected on the ground that the writ petitioner had not suffered A
.>
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 I month
and 17 days is to be added making a total of 6 years 5 months and I 0 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. B
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
c
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 D
is captioned as "RULES FOR SUSPENSION OF SENTENCE OF PRISONERS
y
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 E
maximum of 30 days at a time vide Rule 453. Rule 4528 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 F
.> 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. Ipsis~ima verba Rule 225 is
as follows:
G
"225. Procedure when sentence is suspended. (I) 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
. i,
further orders of such Appellate Court, be treated in all respects as
an under trial prisoner".
H
992 SUPREME COURT REPORTS [2007] 9 S.C.R.

A (2) Should the appellant be ultimately sentenced to imprisonment th.e
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".

B 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
C leave, the above suspension is not contemplated under Chapter 26 of the
Rules. It is also seen from the concerned Rules as noted above, i.e. Rule 453
that the period of emergency and ordinary leave are confined to a short period
and the same is not granted continuously and also that a gap of six months
is contemplated as per Rule 452(8) for further release of a prisoner granting
ordinary leave. Emergency leave as already noted vide Rule 455 is limited to
D extreme situations like death or serious illness. But so far as study leave is
concerned, it is seen that the same is granted somewhat liberally. The appellant
himself was outside the prison for more than six years. He was outside the
prison more than the period he spent inside.

7. If appears that the Government of Kerala had constituted a High
E Level Committee on the basis of the order passed in suo motu proceedings
which was initiated as in several instances several convicts sentenced for
serious offences were released after undergoing short terms imprisonment.
Guidelines were framed by the Committee which were promulgated by G.O.(P)
228/03/Home dated 18.10.2003. In para 3 of the guidelines of the State
F Government order, it is as follows:

"The Committee will recommend premature release of life convicts
who have completed 8 years of actual imprisonment including set off
if any ordered by a competent court and excluding remission of any
kind considering the nature of offence committed by the prisoners,
G nature of the crime, possible effects on the community, their conduct
in a prison and in whose cases the committee feels that premature
release would help in their social reformation and rehabilitation".

8. Stand of the appellant is clearly unsustainable. In view of the clear
. ·•>-.
position emitting from Rule 225, the High Court's judgment does not suffer
H from af'y infirmity that, to be entitled to benefit convict has to suffer at least
C.A.PIOUSv.STATEOFKERALA[PASAYAT,J.] 993

8 years of custody. A
9. In Maru Ram v. Union of India and Ors., [1981] I SCC 107 it was
inter-alia held as follows:

"28. Neither argument has force. The first one fails because Section
302, IPC (or other like offence) fixes the sentence to be life imprisonment. B
14. years' duration is never heavier than life term. The second
submission fails because a remission, in the case oflife imprisonment,
ripens into a reduction of sentence of the entire balance only when
a final release order is made. Godse is too emphatic and unmincing to
admit of a different conclusion. The haunting distance of death which
is the terminus ad quern of life imprisonment makes deduction based C
on remission indefinite enough not to fix the date with certitude.
Thus, even if remissions are given full faith and credit, the date of
release may not come to pass unless all the unexpired, uncertain
balance is remitted by a government order under Section 432. If this
is not done, the prisoner will continue in custody. We assume here D
that the constitutional power is kept sheathed.

29. Let us assume for the sake of argument that remissions have been
earned by the prisoner. In Murphy v. Commonwealth, (l 72 Mass 264)
referred to by Cooley and cited before us (infra), it has been held that
earned remissions may not be taken away by subsequent legislation. E
May be, direct effect of such a privative measure may well cast a
heavier penalty. We need not investigate this position here.

30. A possible confusion creeps into this discussion by equating life
imprisonment with 20 years' imprisonment. Reliance is placed for this
purpose on Section 55, IPC and on definitions in various Remission F
Schemes. All that we need say, as clearly pointed out in Godse is that
these equivalents are meant for the limited objective of computation
to help the State exercise its wide powers of total remissions. Even if
the remissions earned have totalled up to 20 years, still the State
Government may or may not release the prisoner and until such a
release order remitting the remaining part of the life sentence is passed, G
the prisoner cannot claim his liberty. The reason is that life sentence
) . is nothing less than lifelong imprisonment. Moreover, the penalty then
,.,/\ and now is the same-life term. And remission vests no right to release
when the sentence is life imprisonment. No greater punishment is
inflicted by Section 433-A than the law annexed originally to the H
994 SUPREME COURT REPORTS [2007] 9 S.C.R.

A crime. Nor is any vested right to remission cancelled by compulsory
14-year jail life once we realise the truism that a life sentence is a
sentence for a whole life (see Sambha .Ji Krishan Ji v. State of
Maharashtra, AIR (1974) SC 147 and State of MP. v. Ratan Singh,
[1976] Supp SCR 552).

B 31. Maybe, a difference may exist in cases of fixed term sentences.
Cooley lends support :

Privilege existing at time of commission of offence (e.g. privilege
of earning a shortening of sentence by good behaviour) cannot ..
. ~
be taken away by subsequent statute.
c xxx xxx

72. We conclude by formulating our findings:

(1) We repulse all the thrusts on the vires of Section 433-A. Maybe,
penologically the prolonged term prescribed by the section is
D supererogative. If we had our druthers we would have negatived the
need for a fourteen-year gestation for reformation. But ours is to
construe, not construct, to decode, not to make a code.

(2) We affirm the current supremacy of Section 433-A over the
Remission Rules and short-sentencing statutes made by the various
E States.

(3) We uphold all remissions and short-sentencing passed under
Articles 72 and 161 of the Constitution but release will follow, in life
sentence cases, only on government making in order en masse or
individually, in that behalf
F
(4) We hold that Section 432 and Section 433 are not a manifestation
of Articles 72 and 161 of the Constitution but a separate, though
similar power, and Section 433-A, by nullifying wholly or partially
these prior provisions does not violate or detract from the full operation
of the constitutional power to pardon, commute and the like.
G
(5) We negate the plea that Section 433-A contravenes Article 20(1)
of the Constitution.
. ·•
(6) We follow Copa! Vinayak Godse v. State of Maharashtra, [196 l] ..>,...
3 SCR 440 to hold that imprisonment for life lasts until the last breath,
H and whatever the length of remissions earned, the prisoner can ~laim
'j -

C.A.PIQUSv.STATEOFKERALA[PASAYAT,J.] 995

~- release only if the remaining sentence is remitted by government. A
(7) We declare that Section 433-A, in both its limbs (i.e. both types
of life imprisonment specified in it), is prospective in effect. To put the
position beyond doubt, we direct that the mandatory minimum of 14
years' actual imprisonment will not operate against those whose cases
were decided by the trial Court before December 18, 1978 when Section B
433-A came into force. All 'Lifers' whose conviction by the court of
first instance was entered prior to that date are entitled to consideration
by government for release on the strength of earned remissions
although a release can take place only if government makes an order
to that effect. To this extent the battle of the tenses is won by the
prisoners. It follows, by the same logic, that short. sentencing
c
legislations, if any, will entitle a prisoner to claim release there under
if his conviction by the court of first instance was before Section 433-
A was brought into effect.

(8) The power under Articles 72 and 161 of the Constitution can be
D
exercised by the Central and State Governments, not by the President
or Governor on their own. The advice of the appropriate Government
t
binds the Head of the State. No separate order for each individual
case is necessary but any general order made must be clear enough
to identify the group of cases and indicate the application of mind to
the whole group. E
(9) Considerations for exercise of power under Articles 72/161 may be
myriad and their occasions protean, and are left to the appropriate
Government, but no consideration nor occasion can be wholly
irrelevant, irrational, discriminatory or mala fide. Only in these rare
;. cases will the court examine the exercise. F
(l 0) Although the remission rules or short-sentencing provisions
proprio vigore may not apply as against Section 433-A, they will
override Section 433-A if the government, Central or State, guides
itself by the self-same rules or schemes in the exercise of its
constitutional power. We regard it as fair that until fresh rules are G
made in keeping with experience gathered, current social conditions
and accepted penological thinking- a desirable step, in our view- the
~l.., present remission and release schemes may usefully be taken as
guide-lines under Articles 72/161 and orders for release passed. We
cannot fault the government, if in some intractably savage delinquents,
H
996 SUPREME COURT REPORTS (2007] 9 S.C.R.

A Section 433-A is itself treated as a guide-line for exercise of Articles
72/161.. These observations of ours are recommendatory to avoid a
hiatus, but it is for Government, Central or State, to decide whether
and why the current Remission Rules should not survive until replaced
by a more wholesome scheme.

B (I I) The U.P. Prisoners' Release on Probation Act, 1938, enabling
limited enlargement under licence will be effective as legislatively
sanctioned imprisonment of a loose and liberal type and such licensed
enlargement will be reckoned for the purpose of the 14-year duration.
Similar other statutes and rules will enjoy similar efficacy.

c (12) In our view, penal humanitarianism and rehabilitative desideratum
warrant liberal paroles, subject to security safeguards, and other
humanizing strategies for inmates so that the dignity and worth of the
human person are not desecrated by making mass jails anthropoid
zoos. Human rights awareness must infuse institutional refonn and
search for alternatives.
D
( 13) We have declared the law all right, but law-in-action fulfils itself
not by declaration alone and needs the wings of communication to the
target community. So, the further direction goes from this Court that
the last decretal part is translated and kept prominently in each ward
and the whole judgment, in the language of the State, made available
E
to the inmates in the jail library.

(14) Section 433-A does not forbid parole or other release within the
14-year span. So to interpret the section as to intensify inner tension
and intennissions of freedom is to do violence to language and liberty."
F IO. As and when the appellant suffers actual custody of more than 8
years, let his case be considered in accordance with law by the concerned
authorities.

11. We make it clear that we have not expressed any opinion in the
G acceptability of the plea of the appellant while considering the case of the
appellant. The parameters and requirements have to be kept in view while
considering the case.

12. The appeal is dismissed with the aforesaid observations.

H K.K.T. Appeal dismissed.