ORDER : K.T. Sankaran, J. The questions of law arising for consideration in these applications are: (i) Whether a life convict can invoke section 428 of the Code of Criminal Procedure during the pendency of the Criminal Appeal filed by him against the conviction and sentence? (ii) Whether in similar circumstance a life convict can invoke R.453 of the Kerala Prison Rules, 1958 ? 2. The applications were filed under section 428 read with section 482 of the Code of Criminal Procedure by accused Nos.4, 6 and 13 in S.C.No.156 of 2011 on the file of the Court of the IV Additional Sessions Judge, Ernakulam. The relief prayed for in the applications is to reckon the period undergone by the applicants as under-trial prisoners for setting off the same against the period of sentence imposed in the case and for all legal purposes including parole. The accused were found guilty by the Sessions Court for the offences under Sections 120B, 147, 302, 201, 212 and 341 read with 5.149 of the Indian Penal Code. The prosecution case is that on account of political enmity, the accused persons, fourteen in number, murdered Abdul Basheer @ Jabbar, who belonged to another political party. The trial court found accused Nos. 1, 4, 6, 8, 10, 12 and 13 guilty of the offences. After awarding separate sentences for different offences, the court below held thus: "Without going to the extremes but for giving the correct message I order that it shall be sufficient if each convict suffers concurrently all the respective substantive jail sentences imposed on him however further directing that imprisonment for life shall not be commuted or reduced in any manner so as to release the convicts during a period of 14 (fourteen) years." 3. The applicants challenged the conviction and sentence in the Criminal Appeals filed by them. The Criminal Appeals are pending. They also challenged the aforesaid direction given by the court below. It is stated that the applicants were under-trial prisoners for various periods, the details of which were shown in the judgment. The applicants contend that normally, they would get parole (leave) under R.453 of the Kerala Prison Rules. It is also contended that while invoking R.453, the applicants are entitled to reckon the period during which they were detained as under-trial prisoners. The applicants contend that normally, they would get parole (leave) under R.453 of the Kerala Prison Rules. It is also contended that while invoking R.453, the applicants are entitled to reckon the period during which they were detained as under-trial prisoners. The applicants also submit that the period of detention shall be set off against the period of sentence, under section 428 of the Code of Criminal Procedure. 4. The applications are opposed by the respondent. It is contended that section 428 of the Code of Criminal Procedure cannot be invoked by the applicants at this stage, during the pendency of the appeals. The question of section 428 being invoked would arise only when a decision is taken by the Government under section 433 of the Code of Criminal Procedure. It is also contended that in the nature of the allegations made against the applicants and in the facts and circumstances, the applicants are not entitled to invoke R.453 of the Kerala Prison Rules. 5. To comprehend the contentions put forward by the parties, it is apposite to refer to sections 428,433 and 433A of the Code of Criminal Procedure: "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.-- Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction, shall be restricted to the remainder, if any, of the term of imprisonment imposed on him: Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section." "433. Power to commute sentence.-- The appropriate Government may, without the consent of the person sentenced commute-- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, or fine." "433A. Restriction on powers of remission or commutation in certain cases.-- Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment." 6. The relevant portions of R.453 of the Kerala Prison Rules reads as follows: "453. Ordinary Leave.- Ordinary Leave shall be granted subject to the conditions specified below:- (1) Eligibility for leave :- (a) Well behaved prisoners sentenced to imprisonment for one year and above and Who have served out actually ¾rd of the sentence or two years, whichever is less, are eligible for ordinary leave. (b) A prisoner once released on ordinary leave is not entitled for subsequent release on ordinary leave until the completion of six months of actual imprisonment to be counted from the date of his return after last ordinary leave. (c) In reckoning the eligibility for leave, the period spent by a prisoner under judicial custody may be counted as period of sentence undergone for the purpose of granting the leave. (d) Every petition for leave under these rules shall be accompanied with a report from the Sub Inspector of Police concerned on the repercussions on the law and order situation if the prisoner is released on leave, particularly his own safety as well as that of others, the possibility if any, of the prisoner absconding instances of previous misconduct on his part when on leave earlier and on such other relevant points. The Superintendent of the Jail shall give his specific recommendation with due reference of the conduct of the prisoner in Prison, his previous history in relation to leave, possibility of his absconding and also the aggregate number of days of leave he has already enjoyed. (e) xxxxxxxxx (f) xxxxxxxxx (g) xxxxxxxxx (h) The following categories of prisoners shall not be eligible for being released on leave, namely, (i) Offenders classified as habituate; (ii) Prisoners sentenced under section 392 to 402 Indian Penal Code. Note:- Lifers having concurrent sentence under the above sections will be granted parole on completion of the sentence under these sections: (iii) Prisoners who are considered dangerous or who are involved in serious prison violation like assault, out break, mutiny, escape, instigators to serious violation, strike etc. and the like; (iv) Prisoners suffering from unsoundness of mind or contagious diseases. Note:-In the case of prisoners mentioned in the above item the eligibility should be decided in accordance with the opinion of the Medical Officer attached to the prison. (2)Maximum Period.- (a) Ordinary leave shall be granted up to a maximum of thirty days at a time. (b) xxxxxxxx (c) xxxxxxxx (3) Authority to grant leave.- Ordinary leave shall be granted by the Superintendent of Prisons up to a period of ten days and by the Head of the Prisons Department up to a period of thirty days at a time." 7. In Kartar Singh & Ors. v. State of Haryana, ( AIR 1982 SC 1439 ), a Three Judge Bench of the Supreme Court held that the benefit of set off under section 428 of the Code of Criminal Procedure would not be available to life convicts. In that decision, the Supreme Court also held that the Indian Penal Code as well as the Code of Criminal Procedure maintain a clear distinction between imprisonment for life and imprisonment for a term. The life term of an accused is uncertain and therefore, imprisonment for life cannot be considered as imprisonment for a term as provided under section 428 of the Code of Criminal Procedure. 8. The view taken by the Three Judge Bench of the Supreme Court in Kartar Singh's case was not approved by the Constitution Bench of the Supreme Court in Bhagirath v. Delhi Administration, ( AIR 1985 SC 1050 ). In Bhagirath's case, the Constitution Bench held thus: "7. 8. The view taken by the Three Judge Bench of the Supreme Court in Kartar Singh's case was not approved by the Constitution Bench of the Supreme Court in Bhagirath v. Delhi Administration, ( AIR 1985 SC 1050 ). In Bhagirath's case, the Constitution Bench held thus: "7. We see but little warrant for qualifying the word `term' by the adjective `fixed' which is not to be found in section 428. The assumption that the word `term' implies a concept of ascertain ability or conveys a sense of certainty is contrary to the letter of the law, as we find it in that section. Even the marginal note to the section does not bear out that assumption. It rather belies it. And, marginal notes are now legislative and not editorial exercises. The marginal note of section 428 shows that the object of the Legislature in enacting the particular provision was to provide that the period of detention undergone by the accused' should `be set off against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of the word `term' so as to comprehend only sentences which are imposed for a fixed or ascertainable period. 8. To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar norto the common understanding of the word `term'. To say otherwise would offend not only against the language of the statute but against the spirit of the law, that is to say, the object with which the law was passed. A large number of cases in which the accused suffer long under trial detentions are cases punishable with imprisonment for life. Usually, those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified." 9. Usually, those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified." 9. However, the Supreme Court in Bhagirath v. Delhi Administration ( AIR 1985 SC 1050 ), following the decision in Gopal Vinayak Godse v. State of Maharashtra, ( AIR 1961 SC 600 ), held that: "The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under section 432 or section 433 of the Code. In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life." 10. In Ashok Kumar alias Golu v. Union of India & Ors., ( AIR 1991 SC 1792 ). the Supreme Court held that: "...It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under section 432, in which case the remission would be subject to limitation of section 433A of the Code, or constitutional power has been exercised under Article 72/161 of the Constitution" The Supreme Court in Ashok Kumar's case also considered whether the ratio of Bhagirath's case ( AIR 1985 SC 1050 ) run counter to the ratio in Maru Ram v. Union of India ( AIR 1980 SC 2147 ), and Gopal Vinayak Godse v. State of Maharashtra ( AIR 1961 SC 600 ), and held that the ratio in Bhagirath's case does not run counter to the ratio in Gopal Vinayak Godse's case or Marti Ram's case. This Court in Madhavan v. State of Kerala ( 1992 (1) KLT 544 ), and in Abubacker v. State of Kerala ( 1994 (2) KLT 1012 ), held that the period of detention undergone by the accused persons as under-trial prisoners shall be set off against the sentence of life imprisonment imposed upon them subject to the provisions contained in section 433A and provided that, orders have been passed by the appropriate authority under section 432 or section 433 of the Code of Criminal Procedure. The view taken by a Division Bench of this Court in Kanthalot Karunan and others v. State of Kerala ( 1975 KLT 147 ), that convicts sentenced to imprisonment for life are not entitled to get the benefit of section 428 of the Code of Criminal Procedure was approved by the Supreme Court in Kartar Singh & Ors. v. State of Harvana ( AIR 1982 SC 1439 ). However, the view taken in Kartar Singh's case was not approved by the Constitution Bench of the Supreme Court in Bhagirath v. Delhi Administration ( AIR 1985 SC 1050 ). 11. The proviso to section 428 of the Code of Criminal Procedure was added by Act 25 of 2005 with effect from 23.6.2006 making the position clear. section 428 can be invoked even in the case of a life convict. However, it would arise only after the appropriate Government exercises the power under section 433 of the Code of Criminal Procedure. The power under section 433 can be invoked by the appropriate Government only after the conviction has become final. In a case where an appeal filed by the life convict is pending before the Appellate Court, the appropriate Government would have no power to commute the sentence invoking section 433 of the Code of Criminal Procedure. section 433 of the Code of Criminal Procedure is, therefore, not applicable at this stage. Therefore, the proviso to section 428 of the Code of Criminal Procedure also does not apply at this stage. The question of applying set off also would arise after the conviction has become final. 12. For the aforesaid reasons, we answer point No. I against the appellant. 13. As regards point No.2, the benefit of R.453 of the Kerala Prison Rules does not depend on the set off being granted under section 428 of the Code of Criminal Procedure. The question of applying set off also would arise after the conviction has become final. 12. For the aforesaid reasons, we answer point No. I against the appellant. 13. As regards point No.2, the benefit of R.453 of the Kerala Prison Rules does not depend on the set off being granted under section 428 of the Code of Criminal Procedure. Set off under S.428 of the Code of Criminal Procedure is distinct and different from grant of ordinary leave under R.453 of the Kerala Prison Rules. Well behaved prisoners sentenced to imprisonment for one year and above and who have served out actually one-third of the sentence or two years, whichever is less, are eligible for ordinary leave. For reckoning the eligibility for such leave, the period spent by the prisoner in judicial custody may be counted as the period of sentence undergone, in view of clause (c) of sub-rule (f) of R.453 of the Kerala Prison Rules. R.453(l)(a) does not use the expression "term". It uses the expression "imprisonment for one year and above". That expression takes in even imprisonment for life. That even a Life convict is entitled to the benefit of R.453 of the Kerala Prison Rules is clear from the Note to clause (h) of sub-rule (1) of R.453, where reference is made to "lifers". 14. For availing ordinary leave under R.453 of the Kerala Prison Rules. an application shall be submitted by the prisoner. A procedure is prescribed under R.453 of the Kerala Prison Rules to consider whether the applicant is eligible for ordinary leave. Clause (h) of sub-rule (1) of R.453 of the Kerala Prison Rules contains provisions making certain categories of prisoners as ineligible for being released on leave. 15. Even though the stage for consideration of set off under section 428 of the Code of Criminal Procedure has not arisen , that would not be a bar for a prisoner including a life convict from applying for ordinary leave under R.453 of the Kerala Prison Rules, provided he satisfies the conditions for grant of leave. Clause (c) of sub-rule (1) of R.453 of the Kerala Prison Rules can be invoked and the eligibility of the prisoner for ordinary leave can he considered notwithstanding that the appeal filed by him is pending. Clause (c) of sub-rule (1) of R.453 of the Kerala Prison Rules can be invoked and the eligibility of the prisoner for ordinary leave can he considered notwithstanding that the appeal filed by him is pending. The grant of leave under R.453 of the Kerala Prison Rules and the application of clause (c) of sub rule (l) of R.453 thereof does not depend on the commutation under section 433 of the Code of Criminal Procedure or set off under section 428 of the Code of Criminal Procedure. Ordinary leave is a right guaranteed to a prisoner and he would be ineligible for such leave only in the contingencies mentioned in R.453 or elsewhere in the Kerala Prison Rules. The pendency of the criminal appeal filed by the prisoner would not make him ineligible for the grant of leave under R.453 of the Kerala Prison Rules , if he is otherwise entitled to Such leave. 16. For the aforesaid reasons, we answer point No.2 in favour of the applicants. 17. The learned counsel appearing for the applicants submitted that they approached this Court at this stage with a prayer even for set off since the jail authorities will look into only the judgment while considering whether ordinary leave should be granted to the prisoner. It is submitted that if the judgment alone is taken into account , it is likely that the prayer for ordinary leave would not be granted in favour of the applicants. 18. The learned counsel appearing for the respondent submitted that ordinary leave under R.453 of the Kerala Prison Rules cannot be claimed as of right. An application has to he submitted for the same and the procedure followed in the Kerala Prison Rules should be followed before deciding the question whether the applicant is eligible for leave. The learned counsel submitted that in the present case the applicants are dangerous criminals and they are hired assassins, which make them ineligible for grant of ordinary leave. 19. The right to get ordinary leave under 8.453 of the Kerala Prison Rules is not an indefeasible right. An application for grant of leave can be rejected on the merits of it, after considering whether the applicant is entitled to grant of leave as per Rules. 19. The right to get ordinary leave under 8.453 of the Kerala Prison Rules is not an indefeasible right. An application for grant of leave can be rejected on the merits of it, after considering whether the applicant is entitled to grant of leave as per Rules. If it is found that the applicant is entitled to grant of leave, his tight cannot be defeated only on the ground that the Criminal Appeal filed by him is pending. The application cannot also bed Dismissed only on the ground that the prisoner is a life convict. Every application has to be considered on the merits of the same. We do not think it proper to consider the question whether, the applicants would be entitled to grant of ordinary leave, in the facts and circumstances of the case. That question will be considered by the appropriate authority as per Rules. We only declare that even a life convict would be entitled to the benefit of R.453 of the Kerala Prison Rules and that too pending final disposal of the Criminal Appeal filed by him. 20. It is submitted by the learned counsel appearing for the applicants that several convicts including prisoners serving life sentence are denied the benefit of ordinary leave under R.453 either because they are ignorant of the same or because the applications are not properly processed and considered. It is submitted that sometimes, looking at the judgment alone, the benefit would be denied on the ground that the period of detention in judicial custody pending trial is not clearly mentioned in the judgment. It is pointed out that in some cases where set off is not specifically granted, ordinary leave is denied on the ground that set off is not granted. We make it clear that grant of ordinary leave is unconnected with set off. If a prisoner is entitled to ordinary leave, it cannot be denied on the ground that the period of detention in judicial custody is not clearly mentioned in the judgment. If an application is filed, the eligibility of leave shall be considered after reckoning the benefit of clause (c) of sub-rule (1) of R.453 of the Kerala Prison Rules, if necessary. by gathering the details from other sources. 21. The Criminal Miscellaneous Applications are disposed of as above. If an application is filed, the eligibility of leave shall be considered after reckoning the benefit of clause (c) of sub-rule (1) of R.453 of the Kerala Prison Rules, if necessary. by gathering the details from other sources. 21. The Criminal Miscellaneous Applications are disposed of as above. The Registry shall communicate a copy of this order to the Superintendents of all Central Prisons in the State of Kerala.