SC Rule Asking Convict To Surrender To File Criminal Appeal Unconstitutional : Plea In Supreme Court

The Supreme Court on Friday considered a writ petition which challenged a rule of the Supreme Court Rules 2013 which mandates that a convict should submit proof of surrender to file criminal appeal in the SC.

The writ petition challenged the validity of Rule 5 of Order XXII of the Supreme Court Rules, 2013 as ultra vires of Articles 14/21 of the Constitution in those cases where convicts have been granted time to surrender by the High Court(Mahendra Nandram Pardeshi v The Secretary General, The Supreme Court).

As per the said Rule, if a petition against a sentence of imprisonment is filed, it should be accompanied with the proof of surrender of the petitioner in prison or with an application seeking exemption from surrender. If the petitioner opts to file an exemption application, only such application will be listed before the bench first before the main petition.

As per the writ petition filed through Advocate Amit Pai, this Rule is arbitrary and unreasonable when it is inconsistent with High Court orders granting time for a person to surrender.

"...a benefit that has accrued on the Petitioner herein by virtue of the inherent power of the Hon'ble High Court, a Constitutional Court, cannot be negated by operation of the impugned Rule 5 of Order XXII of the Supreme Court Rules, 2013 as a precondition for the hearing of the substantive petition under Article 136 of the Constitution. It is submitted that such a negation would be unfair, unreasonable and unjust, and thereby in the teeth of Articles 21 read with Article 14", the petition stated.

Court Room Exchange

Senior Advocate R Basant appeared for the writ petitioner before a bench comprising Chief Justice of India SA Bobde, Justices AS Bopanna and V Ramasubramanian.

Mr.Basant submitted that the the petitioner was convicted under the Prevention of Corruption Act. On 23.10.2020, his appeal was dismissed by the High Court. But the High Court granted him 12 weeks time to surrender from the date when judgment was uploaded. The judgment was uploaded on 27.10.2020. That means he has time till 26.01.2021 to surrender.  On 07.12.2020, he filed the Special Leave Petition. But the SLP is not getting listed because the petitioner has not surrendered, he submitted.

The senior counsel submitted that the High Court granted time to surrender in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure. The Supreme Court Rules cannot prescribe a condition which is inconsistent with a direction issued under a statutory power. Article 145 of the Constitution, which is the source of power for the SC Rules, says that such rules should be subject to the laws made by the Parliament.

Therefore, Mr.Basant argued, the condition asking a petitioner to surrender even when HC has granted him time to surrender is unsustainable in law.

"Can the Rule be interpreted to mean that I should surrender for the consideration of my petition even when the High Court has given a Section 482 direction allowing me time to surrender?", he asked.

The CJI observed that the petitioner need not surrender in such a case; but the consideration of the appeal will be only after surrender.

"You need not surrender. But you cannot say that you are entitled to consideration of the appeal before your surrender", the CJI said.

"The consideration of appeal cannot be postponed until surrender, when I am not obliged to surrender. The  rule must be interpreted to protect the liberty of the citizen", Basant replied.

"Your liberty is protected. We are not asking you to surrender before 12 weeks", CJI replied.

The CJI added that surrender is not always necessary under Rule 5 as it gives an option to file exemption application.

"Rule 5 does not make the consideration of the appeal subject to you getting an order of exemption form surrender. The rule only says that appeal will not be admitted unless it is accompanied by an application seeking exemption from surrender. You can state in the exemption application that you did not surrender as the High Court has granted time", the CJI suggested.

Basant submitted that exercising 'abundant caution', the petitioner has filed such an exemption application mentioning the HC order granting exemption, and yet the appeal is not being listed for consideration.

"Appeal can be listed. The application for surrender need only say that you are not required to surrender as you have HC order", the CJI said.

"That is all I want my court to say. Kindly direct to post my appeal", Basant replied.

The CJI agreed and directed the listing of the appeal next week.