Recently, the Supreme Court of India clarified that under its 2013 Rules, an application seeking exemption from surrendering in a Special Leave Petition (SLP) can only be entertained if the petitioner has been sentenced to imprisonment.
Referring to Order XXII Rule 5 of the Supreme Court Rules, 2013, the Court stated:
“Upon reading 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.”
The Court also observed that the Registry had been entertaining such applications even in cases like rejection of anticipatory bail or rejection of interim bail extensions, which is not permissible.
The Court cited Order XXII Rule 5 of the Supreme Court Rules, 2013, which states:
"Where the appellant has been sentenced to a term of imprisonment, the petition of appeal shall state whether the appellant has surrendered. If he has surrendered, he shall submit a certified copy of the order of the court where he surrendered or a certificate from the competent jail officer."
The Court emphasized that if the appellant has not surrendered, the appeal petition will not be accepted unless it is accompanied by an application for exemption from surrendering.
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The Court relied on several past judgments to support its reasoning, including:
Mahavir Arya v. State Government NCT of Delhi – The Court ruled that Order XXII Rule 5 applies only when the petitioner has been sentenced to imprisonment and does not apply to other orders, such as bail cancellations.
Kapur Singh v. State of Haryana – The Court dismissed a similar application, clarifying that surrender is required only when the petitioner has been sentenced.
Mayuram Subramanian Srinivasan v. CBI – The ruling upheld the same principle that surrender is mandatory only in conviction cases.
Vivek Rai and Another v. High Court of Jharkhand – Reaffirmed the importance of Order XXII Rule 5 in maintaining judicial clarity.
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The Supreme Court upheld the Gujarat High Court’s decision and dismissed the petitioner’s application for exemption from surrendering, stating:
"In view of the clear language of Order XXII Rule 5 of the SC Rules 2013 and successive orders passed by this Court, 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."
The Court further directed that this order be placed before the Chief Justice of India for issuing formal instructions to the filing, scrutiny, and numbering departments regarding matters where Order XXII Rule 5 applies.
Since the petitioner had already surrendered following the rejection of his application, the Court declared the special leave petition infructuous and disposed of the matter.
Case Name: JASMINBHAI BHARATBHAI KOTHARI v. STATE OF GUJARAT., Diary No. - 45970/2023
