Can High Court Exempt Convict From Surrendering Before Entertaining Revision/Appeal? Supreme Court Refers To Larger Bench

The Supreme Court recently referred to a larger bench the issue of whether High Court can exempt a convict sentenced to imprisonment from surrendering before entertaining a criminal revision or appeal.

A bench of Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe referred the issue to a larger bench in light of conflicting positions taken by coordinate benches.

The Court was dealing with a plea filed by one Sudhir Khaitan against an order of the Rajasthan High Court refusing to hear his revision petitions and the application for suspension of sentence on the ground that he had not surrendered.

Rule 311(3) of the Rajasthan High Court Rules, 1952 requires that in cases involving a sentence of imprisonment, an appeal or revision must be accompanied by a certificate stating that the accused has surrendered if he is not on bail.

The Supreme Court referred to judgment in Vivek Rai v. High Court of Jharkhand, in which it had held that such a rule cannot take away the inherent power of the High Court to grant exemption from surrender in exceptional cases, depending on the facts and circumstances.

However, the Court also noted that in a later decision in Daulat Singh v. State of Madhya Pradesh, a coordinate bench expressed doubt about this proposition. That bench observed that it would not be correct to allow a High Court to use its inherent powers under Section 482 of the CrPC to exempt a convict from surrender, especially when the conviction has been upheld by both the trial court and the appellate court. It also noted that while Section 389 of CrPC allows suspension of sentence, there is no provision that permits exemption from surrender.

The Court noted that the later decision had indicated that a reference to a larger bench would be desirable, but no such reference was made at that stage.

The Court noted that this difference in approach has created uncertainty about how Rule 311(3) should operate, and noted that similar issues have arisen before High Courts.

The Bench asked the Registry to place the matter before the Chief Justice of India to set up a larger Bench to decide the issue.

“We are of the opinion that this uncertainty about the obligation to surrender under Rule 311(3), coupled with the principle in Vivek Rai (supra) must be resolved at the earliest. We have also come across similar predicament expressed in some other orders of the High Courts. In view of the above, we refer the question relating to the interplay between Rule 311(3) of the Rajasthan High Court Rules, 1952 and the inherent power under Section 482 of the Code of Criminal Procedure, coupled with the correctness of the decision taken in the case of Vivek Rai (Supra), to a larger Bench”, the Court held.

Case no. – Special Leave Petition (Crl.) Nos. 19025-19027 of 2025

Case Title – Sudhir Khaitan v. State of Rajasthan & Ors.