Set-Off Period Cannot Be Taken Into Account For Calculating Remission: Kerala High Court

For context, Section 428 of Cr.P.C (Section 468 of BNSS) says that the number of days a person has undergone detention before the date of conviction can be set off against the term of imprisonment.

The Kerala Prisons and Corrections Service (Management) Rules, 2014 lays out the manner of calculating the remission period according to the days a person has been under imprisonment. Rule 379(a) says that a person shall be granted 2 days remission per month for thoroughly good conduct and scrupulous attention to all Jail regulations and two days per month for the industry and the due performance of the daily task imposed. Rule 381 says that a prisoner employed in jail services, such as cooks, those who are engaged in farm duty and those who work on Sundays and holidays may be awarded with 2 days of additional remission per quarter. Rule 382 says that a prisoner who has committed no prison offence shall be awarded 15 days of additional days of ordinary remission.

The petitioner in the case is the wife of the convict who was given a prison sentence of 10 years and was allowed a set off for 8 years, 9 months and 3 days, the period he underwent pre-trial detention. He had filed a petition before the trial court to direct the jail authorities to take into account the set-off period while calculating remission. This was allowed by the trial court. However, the jail authorities passed an award saying that the set-off period cannot be taken into account while calculating remission. This order was challenged in the instant case.

Justice Kauser Edappagath after considering the relevant rules held that the period of detention prior to conviction cannot be counted for remission.

“Thus, 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.”

The Court further observed that Section 428 only allows for set-off and does not equate undertrial detention with imprisonment on conviction.

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

Citation: 2025 LiveLaw (Ker) 256