ORDER :

1. The facts of this case raise issues touching upon Article 21 of the Constitution of India. The petitioner no. 2 – Anil Saha along with petitioner No. 1 – Sanjit Saha filed a common Special Leave Petition before this Court on 13.12.2018 challenging the judgment and order dated 05.07.2018 passed by the High Court at Calcutta passed in CRA No. 151 of 2014 with CRA No. 188 of 2014. The petitioners had challenged their conviction under Section 376(2)(g) of the Indian Penal code and the sentence of rigorous imprisonment for 10 years and the direction to pay a sum of Rs.20,000/-as fine and in default to suffer imprisonment for six months.

2. The Special Leave Petitions were duly supported by an affidavit of Anil Saha – petitioner no.2 sworn on 13.12.2018. The Special Leave Petitions were accompanied with an application for exemption from surrendering.

3. The application for exemption from surrendering came up before the Learned Chamber Judge on 01.03.2019 when the following order was made, in the presence of the counsel for the petitioners:-

“Application for exemption from surrendering is rejected.

Six weeks’ time is granted for surrendering and produce the proof thereof.”

4. Thereafter, the matter came up for hearing on 24.02.2020 before the Learned Judge In-Chambers and the Learned Judge after noticing that learned counsel for the petitioners has not filed proof of surrender, granted two weeks’ further time to file the surrender proof. The order indicates that the counsel engaged was not present at the hearing. It was also ordered that if the surrender proof is not filed within two weeks from 24.02.2020 the Special Leave Petitions were to be dismissed without any further reference to the Court.

5. On 25.09.2023 before me, as a Chamber Judge, three applications filed by the petitioner No.1 – Sanjit Saha came up for hearing. A Miscellaneous Application (Diary No.19330/2023) was filed by petitioner no. 1-Sanjit Saha for restoration of the Special Leave Petitions along with an application for condonation of delay and for recalling of the court’s order dated 24.02.2020. I.A. No.113070/2023 was for condonation of delay in filing and I.A. No.95673/2023 was for recalling of the Court’s order.

6. On being satisfied that the petitioner No.1 had surrendered on 15.03.2019 itself, the Special Leave Petition was restored insofar as Petitioner No.1 was concerned. It was noticed that since petitioner no.1 and petitioner no.2 had filed a common Special Leave Petitions and only petitioner no.1 had taken steps for recall by pointing out that he has in fact surrendered on 15.03.2019, an order was passed to conduct an enquiry about the status of the surrender of petitioner no.2.

7. For the sake of convenience, the order dated 25.09.2023, passed in the applications of Sanjit Saha, Petitioner No. 1, are set out hereinbelow:

“Delay condoned.

The application for exemption from surrendering filed by the applicant came up for hearing on 01.03.2019 before the Judge In-Chambers. The applicant was given six weeks’ time to surrender and file proof thereof. Thereafter, the matter came up for hearing on 24.02.2020 before the Learned Judge In-Chambers and on the ground that surrender proof had not been filed an order was passed to the following effect:-

“Perused Office Report dated 21.01.2020.

By order dated 01.03.2019, Hon’ble Judge, In-Chamber, has rejected the application of the petitioners for exemption from surrendering. By the very same order six weeks’ time has been granted to the petitioners to surrender and produce the proof thereof.

In spite of time granted, learned counsel for the petitioner has not filed proof of surrender of the petitioners so far.

Two weeks’ further time is granted to learned counsel for the petitioners to file proof of surrender of the petitioners failing which the special leave petition(s) shall stand dismissed without any further