Exemption from surrendering in special leave petitions is only applicable when the petitioner has been sentenced to imprisonment, as per Order XXII Rule 5 of the Supreme Court Rules, 2013.

ORDER :

1. This present petition is directed against the order dated 19th October, 2023 passed by the High Court of Gujarat¹ [For short the ‘High Court’] whereby the Division Bench had refused to extend the period of temporary bail granted to the petitioner in Criminal Appeal No. 417 of 2009, preferred by the petitioner herein, which is pending adjudication before the High Court. In the said criminal appeal, the petitioner has assailed the conviction and sentence awarded by the learned Additional Sessions Judge, District Court Bhavnagar vide judgment dated 3rd November, 2018, for the offences punishable under Section 302 of the Indian Penal Code, 1860 read with Section 34 and Section 25 (1) (B) (A) of Arms Act, 1959.

2. We have noticed an apparent anomaly in the listing of this petition which we propose to clarify and address.

3. While preferring the present special leave petition, the petitioner also filed an Interlocutory Application² [I.A. No. 248997 of 2023] seeking exemption from surrendering. The said application was registered by the Registry and stands rejected by the Hon’ble Judge-in-Chamber vide order dated 8th December 2023.

4. We are of the prima facie opinion that the above application could not have been entertained in the very first instance. Our conclusion is based on plain reading and interpretation of Order XXII Rule 5 of the Supreme Court Rules, 2013³ [For short ‘SC Rules 2013’] which is reproduced herein-below:

“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.”

(Emphasis supplied)

5. 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.

6. 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.

7. In the case of Mahavir Arya vs. State Government NCT of Delhi and Another, Special Leave Petition (Criminal) [Diary No. 8160 of 2021] Hon’ble Shri Justice Pamidighantam Sri Narasimha, sitting in Chambers, interpreted Order XXII Rule 5 of the SC Rules, 2013 and held that the said Order applies only to cases where the petitioner is ‘sentenced to a term of imprisonment’ and it cannot be confused with simple orders of cancellation of bail.

8. In Kapur Singh vs. State of Haryana, (2021) 18 SCC 579 this Court in a special leave petition, challenging the order of cancellation of the bail, dismissed the Interlocutory Application seeking exempti