SHAMSUNDAR SHANKAR KHAMKAR vs THE STATE OF MAHARASHTRA

O R D E R

In this petition, the main challenge is to the order dated 09.03.2022 by which the petitioner was enlarged on bail with a condition that an amount of Rs.30,00,000/- to be deposited within a period of one year. The second order under challenge is the order of 06.04.2023, passed by the High Court of Judicature at Bombay Bench at Aurangabad, which cancelled the bail after perusing the status report from the Special Judge and Additional Sessions Judge, Newasa, to the effect that the applicant/petitioner had not deposited Rs.30,00,000/-. There was also a direction in the order of 06.04.2023 to surrender before the Prison Authority.

The matter has come before me on account of an application for exemption from surrendering filed by the petitioner.

I drew the attention of the learned counsel to the Order XXII Rule 5 of the Supreme Court Rules, 2013, which reads as under:-

“5. Where the petitioner has been sentenced to a term of imprisonment, the petition of appeal shall state whether the petitioner has surrendered and if he has surrendered then the petitioner 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 petitioner 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.”

As is clear from the above that the said sub-rule states that where the petitioner has been sentenced to an imprisonment, the petition of appeal shall state whether the petitioner has surrendered and if he has surrendered, to furnish proof thereof. The sub-rule also states that where the petitioner has not surrendered, the petition of appeal shall not be accepted by the Registry unless it is accompanied by an application for exemption from surrendering.

In the present case, there is no sentence imposed on the petitioner, as the matter is still under trial.

The above view is reinforced by the Rules of the Chamber Judge

(Justice P.S.Narasimha) in the case of Mahavir Arya Vs. State Govt. NCT of Delhi & Anr. (Order dated 07.01.2022 in SLP(Crl.)Dy. No.

8160/2021).

In view of the above, let the matter be processed in accordance with the Rules.

(VARSHA MENDIRATTA) (RAVINDER KUMAR)

COURT MASTER (SH) COURT MASTER (NSH)