In a significant decision, the Kerala High Court has clarified that the set-off period—i.e., the time a convict spends in pre-trial detention—cannot be counted when calculating remission under prison rules.
The ruling was made by Justice Dr. Kauser Edappagath while dismissing a criminal writ petition (WP(Crl.) No. 82 of 2025) filed by Shyna P.A., the wife of Roopesh, a convict currently serving a sentence in Central Prison, Viyyur.
Roopesh was convicted on 12 April 2024 in a case registered under several provisions of the Indian Penal Code and the Unlawful Activities (Prevention) Act. He was granted a set-off for the time he spent in pre-trial detention—from 9 July 2015 to 11 April 2024—a total of 8 years, 9 months, and 3 days. The sentence awarded was for a maximum of 10 years.
The petitioner contended that the set-off period should also be considered when computing remission under Section 72 of the Kerala Prisons and Correctional Services (Management) Act, 2010, and the associated Rules of 2014. The trial court had earlier directed the prison authorities to consider this set-off period for remission. However, the prison authorities rejected this request, leading to the current legal challenge.
Read also: SC Slams Kerala HC For Quashing POCSO Case Against Teacher Accused of Harassing 52 Students
“Entitlement of remission arises only when an accused is convicted and admitted to prison as part of undergoing the sentence of imprisonment. So much so, the period of detention prior to the conviction cannot be counted for remission,”
– Justice Dr. Kauser Edappagath
The court noted that Section 428 of the CrPC (now Section 468 of the Bharatiya Nagarik Suraksha Sanhita - BNSS) only allows for set-off of pre-conviction detention against the term of imprisonment. It does not equate that period with actual imprisonment post-conviction.
Relevant Legal Provisions:
- Section 428 CrPC (Sec 468 BNSS): Allows the pre-conviction detention to be deducted from the final sentence.
- Section 72 of Kerala Prisons Act: Permits remission only for convicted prisoners.
- Kerala Prisons Rules:
- Rule 376: Ordinary remission for good conduct.
- Rule 379(a): Two days remission per month for good behavior and work.
- Rule 381: Additional remission for jail workers.
- Rule 382: Fifteen days extra remission for zero prison offences.
Read also: Historic First: Kerala’s Pala Bar Association Elects All-Women Office Bearers
The petitioner’s counsel argued that since the set-off period was legally considered part of the sentence, it should also be eligible for remission. They relied on a Patna High Court judgment (Satish Kr. Gupta v. State of Bihar), which supported this view.
However, the Kerala High Court disagreed and pointed to the Supreme Court's earlier ruling in Government of Andhra Pradesh v. Anne Venkatesware (1977), which held that remission cannot be granted for the period when the convict was under trial.
“The Section only provides for ‘set off’; it does not equate an undertrial detention or remand detention with imprisonment on conviction.”
Based on this reasoning, the court concluded that remission could only begin from May 2024, the month after Roopesh’s conviction. The petition challenging the jail authority’s order was dismissed, and no interference was warranted.
Accordingly, the petition was dismissed.
Counsel for the Petitioner: Adv. V. T. Raghunath
Counsel for the Respondents: Advocates P. Narayanan ( Sr. GP), Sajju S. (Sr. GP)
Case No: WP (Crl.) 82 of 2025
Case Title: Shyna P. A. v State of Kerala and Others
