Jasminbhai Bharatbhai Kothari vs The State Of Gujarat

2025 INSC 172 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO(S). OF 2025 (Diary No. 45970 of 2023)

JASMINBHAI BHARATBHAI KOTHARI …PETITIONER(S)

VERSUS

STATE OF GUJARAT …RESPONDENT(S)

ORDER

1. This present petition is directed against the order dated 19 th

October, 2023 passed by the High Court of Gujarat1, 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 Signature Not Verified Digitally signed by SONIA BHASIN Date: 2025.02.10 16:34:28 IST Reason:

1 For short, the ‘High Court.’

1 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 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 which is

reproduced hereinbelow: -

“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

2 IA No. 248997 of 2023. 3 For short, ‘SC Rules 2013.’

2 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 v. State Government NCT of

Delhi and Anr4, 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

4 Special Leave Petition (Criminal) [Diary No. 8160 of 2021].

3 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 v. State of Haryana5, this Court in a

special leave petition, challenging the order of cancellation of the

bail, dismissed the Interlocutory Application seeking exemption

from surrendering on a similar rationale. The Court noted that:

“6. In my considered view, the question of the petitioner surrendering before the trial court, as a precondition for entertaining the above SLP, does not arise. Order XXII Rule 5 of the Supreme Court Rules, 2013, makes it mandatory for a person to surrender or seek exemption from surrendering only when he has been sentenced to a term of imprisonment. The petitioner has not been sentenced to any term of imprisonment, by the orders impugned in the SLP. The orders out of which the above SLP arises, are orders passed for failure to comply with the directions issued under Section 143-A of the NI Act.

9. When Section 143-A(5) of the NI Act read with Section 421(1)CrPC does not prescribe a term of imprisonment and when the orders impugned in the SLP do not challenge any penalty of imprisonment for a particular term, the question of the petitioner surrendering or seeking exemption from surrendering does not arise. In other words, in cases of this nature, the Registry cannot insist upon either a surrender certificate or an application for exemption from surrendering under Order XXII Rule 5 of the Rules.”

(emphasis supplied)

9. A similar view was taken by this Court in Mayuram

Subramanian Srinivasan v. CBI6; Vivek Rai and Another v.

5 (2021) 18 SCC 579.

6 (2006) 5 SCC 752.

4 High Court of Jharkhand7; Dilip Majumder v. Nikunja Das &

Anr.8; and Sanjit Saha and Another. v. State of West Bengal.9

10. 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. This order shall be placed before Hon’ble the

Chief Justice of India for seeking formal instructions to the

concerned filing, scrutiny and numbering Sections concerning

matters in which Order XXII Rule 5 will apply.

11. Returning to the facts of the present case, since the petitioner

has already surrendered upon the rejection of the Interlocutory

Application(supra), the present special leave petition challenging

the High Court's refusal to extend the temporary bail has become

infructuous.

12. Accordingly, the special leave petition is disposed of as

infructuous.

7 (2015) 12 SCC 86.

8 Special Leave Petition (Criminal) [Diary No.6517 of 2020]. 9 2023 SCC OnLine SC 1693.

5

13. Pending application(s), if any, shall stand disposed of.

……..……………………J. (VIKRAM NATH)

……..……………………J. (SANDEEP MEHTA)

NEW DELHI;

JANUARY 30, 2025.

6