Kiran Raj

The Supreme Court of India has dismissed a special leave petition challenging the Gujarat High Court’s refusal to extend the petitioner’s temporary bail. The court ruled that an interlocutory application for exemption from surrendering cannot be entertained unless the petitioner has been sentenced to a term of imprisonment. The judgment further clarified the application of Order XXII Rule 5 of the Supreme Court Rules, 2013, and directed that formal instructions be issued to the Registry regarding its implementation.

The petitioner, Jasminbhai Bharatbhai Kothari, had filed a special leave petition (SLP) before the Supreme Court challenging the Gujarat High Court’s order dated October 19, 2023, which denied an extension of the temporary bail granted to him in Criminal Appeal No. 417 of 2009. The appeal, pending before the High Court, was filed against his conviction and sentence under Section 302 of the Indian Penal Code (IPC), read with Section 34 IPC and Section 25(1)(B)(A) of the Arms Act, 1959.

Alongside the SLP, the petitioner also submitted an interlocutory application (IA No. 248997 of 2023) seeking exemption from surrendering. This application was registered by the Supreme Court Registry and was subsequently rejected by the Judge-in-Chambers on December 8, 2023.

During the hearing, the Supreme Court noted an anomaly in the listing of the petition and took the opportunity to clarify the scope of Order XXII Rule 5 of the Supreme Court Rules, 2013.

The Supreme Court examined the language of Order XXII Rule 5, which states: "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."

The court noted that the Rule explicitly applies only to cases where the petitioner has been sentenced to a term of imprisonment. It observed that despite this, the Registry had been accepting applications for exemption from surrendering in cases involving anticipatory bail rejections, denial of interim bail extensions, and cancellation of bail.

The court referred to past rulings that had examined the issue, including:

• Mahavir Arya v. State Government NCT of Delhi & Anr. (SLP (Criminal) Diary No. 8160 of 2021) – In this case, the Supreme Court held that Order XXII Rule 5 applies strictly to cases where a person has already been sentenced to imprisonment and cannot be extended to other categories of cases.

• Kapur Singh v. State of Haryana (2021) 18 SCC 579 – The court rejected an interlocutory application for exemption from surrendering in an SLP challenging the cancellation of bail, reasoning that surrender was not a requirement in such cases.

• Mayuram Subramanian Srinivasan v. CBI (2006) 5 SCC 752, Vivek Rai & Anr. v. High Court of Jharkhand (2015) 12 SCC 86, and Sanjit Saha & Anr. v. State of West Bengal 2023 SCC OnLine SC 1693 – These judgments reinforced that applications for exemption from surrendering cannot be entertained unless the petitioner has been sentenced to imprisonment.

In its ruling, the Supreme Court stated:

"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 further directed that the judgment be placed before the Chief Justice of India for formal instructions to the filing, scrutiny, and numbering sections of the Supreme Court Registry to ensure the proper implementation of Order XXII Rule 5.

Following its clarification of Order XXII Rule 5, the Supreme Court dismissed the petitioner’s special leave petition as infructuous, noting that he had already surrendered after the rejection of his interlocutory application. The judgment stated: "Returning to the facts of the present case, 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."

The order also stated that any pending applications related to the case stood disposed of.

Case Title: Jasminbhai Bharatbhai Kothari v. State of Gujarat
Case Number: Special Leave Petition (Crl) Diary No. 45970 of 2023
Bench: Justice Vikram Nath, Justice Sandeep Mehta

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