2025 INSC 172
SUPREME COURT OF INDIA
(HON’BLE
VIKRAM NATH, J. AND HON’BLE SANDEEP MEHTA, JJ.)
JASMINBHAI BHARATBHAI
KOTHARI
Petitioner
VERSUS
STATE OF GUJARAT
Respondent
Special
Leave Petition (Criminal) No(S). OF 2025 (Diary No. 45970 of 2023)-Decided on
30-01-2025
Criminal, Bail
Constitution of India,
Article 136 - Supreme Court Rules, 2013, Order XXII, Rule 5 – Bail - Refusal to
extend the temporary bail by High Court – Special Leave Petition - Application seeking exemption from
surrendering – Held that an application seeking exemption from surrendering
cannot be entertained or listed before the Hon’ble Judge-in-Chambers in any
special leave petition, except where the petitioner has been sentenced to a
term of imprisonment - This order shall be placed before Hon’ble the Chief
Justice of India for seeking formal instructions to the concerned filing,
scrutiny and numbering Sections concerning matters in which Order XXII Rule 5
will apply - Since the petitioner has already surrendered upon the rejection of
the Interlocutory Application the present special leave petition challenging
the High Court's refusal to extend the temporary bail has become infructuous.
(Para
10 and 11)
ORDER
1.
This present petition is directed against the order dated 19 th October, 2023
passed by the High Court of Gujarat[For
short, the ‘High Court.’] , whereby the Division Bench had refused to
extend the period of temporary bail granted to the petitioner in Criminal
Appeal No. 417 of 2009, preferred by the petitioner herein, which is pending
adjudication before the High Court. In the said criminal appeal, the
petitioner has assailed the conviction and sentence awarded by the learned
Additional Sessions Judge, District Court Bhavnagar vide judgment dated 3rd
November, 2018, for the offences punishable under Section 302 of the
Indian Penal Code, 1860 read with Section 34 and Section 25 (1)
(B) (A) of Arms Act, 1959.
2.
We have noticed an apparent anomaly in the listing of this petition which we
propose to clarify and address.
3.
While preferring the present special leave petition, the petitioner also filed
an Interlocutory Application[IA No.
248997 of 2023.] seeking exemption from surrendering. The said application
was registered by the Registry and stands rejected by the Hon’ble Judge-in-
Chamber vide order dated 8th December 2023.
4.
We are of the prima facie opinion that the above application could not have
been entertained in the very first instance. Our conclusion is based on plain
reading and interpretation of Order XXII Rule 5 of the Supreme Court Rules,
2013[For short, ‘SC Rules 2013.’]
which is reproduced herein below: -
“Where the appellant
has been sentenced to a term of imprisonment, the petition of appeal shall
state whether the appellant has surrendered and if he has surrendered then the
appellant shall, by way of proof of such surrender, file the certified copy of
the order of the Court in which he has surrendered or a certificate of the
competent officer of the Jail in which he is undergoing the sentence. A
mere attestation of the signatures on the Vakalatnama from the Jail authorities
shall not be considered as sufficient proof of surrender. Where the appellant
has not surrendered to the sentence, the petition of appeal shall not be
accepted by the Registry unless it is accompanied by an application for seeking
exemption from surrendering. Where the petition of appeal is accompanied by an
application for exemption from surrendering, that application alone shall be
posted for hearing orders before the Court in the first instance.”
(emphasis
supplied)
5.
On perusal of the aforesaid Rule, it is clear that an Interlocutory Application
for exemption from surrendering is admissible only where the petitioner in the
special leave petition has been ‘sentenced to a term of imprisonment’ and not
in any other situation.
6.
We have observed that the Registry of this Court has been entertaining
applications for exemption from surrendering in various other categories of
cases, such as the rejection of anticipatory bail, rejection of a prayer for an
extension of interim bail, etc.
7. In
the case of Mahavir Arya v. State Government NCT of Delhi and Anr[Special Leave Petition (Criminal) [Diary
No. 8160 of 2021].], Hon’ble Shri Justice Pamidighantam Sri Narasimha,
sitting in Chambers, interpreted Order XXII Rule 5 of the SC Rules, 2013 and
held that the said Order applies only to cases where the petitioner is
‘sentenced to a term of imprisonment’ and it cannot be confused with simple
orders of cancellation of bail.
8. In Kapur
Singh v. State of Haryana[(2021) 18 SCC
579.], this Court in a special leave petition, challenging the order of
cancellation of the bail, dismissed the Interlocutory Application seeking
exemption from surrendering on a similar rationale. The Court noted that:
“6. In my considered
view, the question of the petitioner surrendering before the trial court, as a
precondition for entertaining the above SLP, does not arise. Order XXII Rule 5
of the Supreme Court Rules, 2013, makes it mandatory for a person to surrender
or seek exemption from surrendering only when he has been sentenced to a term
of imprisonment. The petitioner has not been sentenced to any term of
imprisonment, by the orders impugned in the SLP. The orders out of which the
above SLP arises, are orders passed for failure to comply with the directions
issued under Section 143-A of the NI Act.
9. When Section
143-A(5) of the NI Act read with Section 421(1)CrPC does not
prescribe a term of imprisonment and when the orders impugned in the SLP do not
challenge any penalty of imprisonment for a particular term, the question of
the petitioner surrendering or seeking exemption from surrendering does not
arise. In other words, in cases of this nature, the Registry cannot insist upon
either a surrender certificate or an application for exemption from
surrendering under Order XXII Rule 5 of the Rules.”
(emphasis supplied)
9.
A similar view was taken by this Court in Mayuram Subramanian Srinivasan
v. CBI[(2006) 5 SCC 752.]; Vivek Rai
and Another v. High Court of Jharkhand[(2015)
12 SCC 86.]; Dilip Majumder v. Nikunja Das & Anr. [Special Leave Petition (Criminal) [Diary
No.6517 of 2020].] ; and Sanjit Saha and Another. v. State of West Bengal. [2023 SCC OnLine SC 1693.]
10.
In view of the clear language of Order XXII Rule 5 of the SC Rules 2013 and
successive orders passed by this Court as mentioned above, we are firmly of the
opinion that an application seeking exemption from surrendering cannot be
entertained or listed before the Hon’ble Judge-in-Chambers in any special leave
petition, except where the petitioner has been sentenced to a term of
imprisonment. This order shall be placed before Hon’ble the Chief Justice of
India for seeking formal instructions to the concerned filing, scrutiny and
numbering Sections concerning matters in which Order XXII Rule 5 will apply.
11.
Returning to the facts of the present case, since the petitioner has already
surrendered upon the rejection of the Interlocutory Application (supra), the
present special leave petition challenging the High Court's refusal to extend
the temporary bail has become infructuous.
12.
Accordingly, the special leave petition is disposed of as infructuous.
13.
Pending application(s), if any, shall stand disposed of.
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