Application Seeking Exemption From Surrender Admissible Only When Petitioner Sentenced To Term Of Imprisonment: Supreme Court

Recently, the Supreme Court observed that as per its 2013 rules, an application, filed in special leave petitions, seeking exemption from surrendering can neither be entertained nor listed before the Judge-in-Chambers, except when the petitioner has been sentenced to a term of imprisonment.Referring to Order XXII Rule 5 of the Supreme Court Rules, 2013, the Court observed : "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.""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," the Court added.In the present case, the High Court of Gujarat, by its impugned judgment, had refused to extend the petitioner's temporary bail, in a case where he was convicted of criminal offences including murder. Against this background, the present special leave petition was preferred. Along with this, the petitioner had also filed an Interlocutory Application seeking exemption from surrendering. However, the same was rejected by Judge-in-Chamber. Expressing its prima facie view, the Bench of Justices Vikram Nath and Sandeep Mehta noted that the application should not have been entertained in the first place. The Court drew its strength from Order XXII Rule 5 of the Supreme Court Rules, 2013. For convenience, the concerned portion of the rule reads as: “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… 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.” Building on this, the Court also relied on several cases including Mahavir Arya v. State Government NCT of Delhi and Anr, Kapur Singh v. State of Haryana, wherein the Court had dismissed the Interlocutory Application seeking exemption from surrendering on a similar rationale. In its order, the Court also noted that the Registry had 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. “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.,” the Court marked."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," the Court added. However, noting that the petitioner has already surrendered, the Court declared the present petition infructuous. While doing so, the Court also directed the present order to be placed before the Chief Justice for seeking formal instructions. Appearances: Petitioner: Miss Aanchal Jain, AOR Mr. Karan Dewan, Adv. Mr. Aakarsh Kharb, Adv Case Name: JASMINBHAI BHARATBHAI KOTHARI v. STATE OF GUJARAT., Diary No. - 45970/2023Citation : 2025 LiveLaw (SC) 159 Click here to read/ download the order

Application Seeking Exemption From Surrender Admissible Only When Petitioner Sentenced To Term Of Imprisonment: Supreme Court

Gyanvi Khanna

The Court stated that such applications cannot be entertained in SLPs challenging the rejection of bail.

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