Supreme Court Clarifies Scope of Surrender Exemption Applications Under Order XXII Rule 5, Disposes SLP as Infructuous

Case Details

This matter, Jasminbhai Bharatbhai Kothari v. State of Gujarat, was adjudicated by the Supreme Court of India in its appellate jurisdiction. The Bench comprised Justices Vikram Nath and Sandeep Mehta. The order was pronounced on 30 January 2025 in Special Leave Petition (Criminal) No. 0 of 2025 (Diary No. 45970 of 2023). The proceedings originated from a petition under Article 136 of the Constitution of India, challenging an order of the Gujarat High Court. The legal framework central to the court's analysis was Order XXII Rule 5 of the Supreme Court Rules, 2013, read alongside the inherent powers of the Court's Registry and Judge-in-Chambers. The nature of the proceeding involved both a substantive challenge to a bail order and a significant procedural clarification regarding the filing and entertainment of interlocutory applications seeking exemption from surrendering.

Facts

The petitioner, Jasminbhai Bharatbhai Kothari, was convicted for offences under Section 302 of the Indian Penal Code, 1860 read with Section 34 and Section 25(1)(B)(A) of the Arms Act, 1959, by the Additional Sessions Judge, Bhavnagar, on 3 November 2018. His criminal appeal challenging this conviction and sentence was pending before the High Court of Gujarat as Criminal Appeal No. 417 of 2009. During the pendency of this appeal, the petitioner had been granted temporary bail. By an order dated 19 October 2023, a Division Bench of the Gujarat High Court refused to extend this period of temporary bail. The petitioner then approached the Supreme Court by way of a special leave petition against this refusal. Concurrently with filing the special leave petition, the petitioner filed Interlocutory Application No. 248997 of 2023 seeking exemption from surrendering before the Supreme Court could hear his petition. This application was registered by the Registry and placed before the Hon'ble Judge-in-Chambers, who rejected it vide order dated 8 December 2023. Following this rejection, the petitioner surrendered. The Supreme Court, upon taking up the special leave petition, identified an anomaly in the very listing and entertainment of the interlocutory application for exemption from surrendering, leading to a detailed examination of the governing procedural rule.

Issues

The court framed and addressed two primary legal issues. The first and predominant issue was one of procedural law: whether an interlocutory application seeking exemption from surrendering, filed alongside a special leave petition, is admissible and can be entertained by the Registry and the Judge-in-Chambers in a case where the petitioner is not challenging an order sentencing him to a term of imprisonment, but is instead challenging an order refusing extension of temporary bail. This issue required the interpretation of Order XXII Rule 5 of the Supreme Court Rules, 2013. The second issue, contingent on the resolution of the first, was the substantive fate of the special leave petition: whether the petition challenging the High Court's refusal to extend temporary bail had become infructuous upon the petitioner's surrender following the rejection of his interlocutory application for exemption.

Rule / Law

The governing statutory provision was Order XXII Rule 5 of the Supreme Court Rules, 2013, which the court reproduced in full. The rule states: "Where the appellant has been sentenced to a term of imprisonment, the petition of appeal shall state whether the appellant has surrendered... 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 also relied on a consistent line of judicial precedents interpreting this rule: Mahavir Arya v. State Government NCT of Delhi (SLP(Crl) Diary No. 8160 of 2021), Kapur Singh v. State of Haryana (2021) 18 SCC 579, Mayuram Subramanian Srinivasan v. CBI (2006) 5 SCC 752, Vivek Rai v. High Court of Jharkhand (2015) 12 SCC 86, Dilip Majumder v. Nikunja Das (SLP(Crl) Diary No.6517 of 2020), and Sanjit Saha v. State of West Bengal 2023 SCC Online SC 1693. The legal principle distilled from this rule and these authorities is that the requirement to surrender, or to seek exemption from surrendering, is triggered exclusively and mandatorily only when the petitioner in the special leave petition has been "sentenced to a term of imprisonment."

Analysis

The court's analysis proceeded in two distinct but connected stages. The first and more elaborate stage involved a meticulous textual and purposive interpretation of Order XXII Rule 5 of the Supreme Court Rules, 2013, to resolve the procedural anomaly it had identified. The court began with a plain reading of the rule, noting the critical phrase "sentenced to a term of imprisonment" as the conditional trigger for the entire mechanism of surrender or exemption. The court emphasized that the rule's language is clear and unambiguous: it applies only where the appellant has been sentenced to imprisonment. The court observed that the rule creates a specific procedure—mandating a statement on surrender, requiring proof thereof, and stipulating that an exemption application must accompany the petition if surrender has not occurred—but this entire procedure is contingent upon the appellant falling into the defined category of a person "sentenced to a term of imprisonment."

The court then addressed the practical discrepancy it had observed: that the Registry had been entertaining applications for exemption from surrendering in categories of cases beyond those involving a sentence of imprisonment, such as cases involving rejection of anticipatory bail or rejection of a prayer for extension of interim bail. The court held this practice to be contrary to the explicit mandate of Order XXII Rule 5. To fortify this interpretation, the court extensively reviewed its own precedents. It first cited the order in Mahavir Arya, where Justice Pamidighantam Sri Narasimha, sitting in Chambers, had explicitly held that Order XXII Rule 5 applies only to cases where the petitioner is 'sentenced to a term of imprisonment' and cannot be confused with simple orders of cancellation of bail. This precedent directly supported the court's view that the rule has a limited, specific ambit.

The court then analyzed the decision in Kapur Singh, which involved a special leave petition challenging an order cancelling bail under the Negotiable Instruments Act. In that case, the Court had dismissed an interlocutory application for exemption from surrendering, reasoning that since the impugned orders did not sentence the petitioner to any term of imprisonment, the question of surrendering or seeking exemption under Order XXII Rule 5 did not arise. The court in the present judgment quoted paragraph 9 of Kapur Singh with approval, which highlighted that when the impugned orders do not challenge any penalty of imprisonment, the Registry cannot insist upon either a surrender certificate or an exemption application under Order XXII Rule 5. This reasoning underscored the principle that the rule's application is tied to the nature of the penalty in the order under challenge, not merely to any order affecting liberty.

The court further noted that a similar view had been taken in a consistent line of other authorities, including Mayuram Subramanian Srinivasan, Vivek Rai, Dilip Majumder, and Sanjit Saha. This jurisprudential consistency demonstrated that the interpretation was settled and not a novel one. The court synthesized this body of law to arrive at a firm, general conclusion: 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 recognized the systemic implication of this clarification and, therefore, directed that its order be placed before the Hon'ble Chief Justice of India to seek formal instructions for the concerned filing, scrutiny, and numbering sections of the Registry regarding the categories of matters in which Order XXII Rule 5 would correctly apply. This step was taken to ensure uniform application of the rule across the Registry's functioning and to prevent the future listing of inadmissible exemption applications.

The second stage of the analysis applied this clarified legal position to the facts of the instant case. The court noted that the petitioner's special leave petition challenged the High Court's order refusing to extend his temporary bail. The petitioner was not, in this proceeding, challenging the order sentencing him to imprisonment; that conviction and sentence were the subject of the pending criminal appeal before the High Court. Therefore, the precondition for invoking Order XXII Rule 5—being "sentenced to a term of imprisonment" in the context of the petition before the Supreme Court—was absent. Consequently, the interlocutory application for exemption from surrendering (IA No. 248997 of 2023) was not admissible in the first instance. The Registry ought not to have registered it, and the Judge-in-Chambers ought not to have been required to adjudicate upon it. However, since the application had been filed, registered, and subsequently rejected, and because the petitioner had acted on that rejection by surrendering, a consequential situation arose for the substantive special leave petition.

The court then addressed the second issue: the status of the special leave petition. The petition sought relief against the High Court's refusal to extend temporary bail. The very purpose of seeking such relief—to avoid surrender and remain on bail—was extinguished once the petitioner surrendered. The court held that the surrender, which was a direct result of the rejection of the (ultimately inadmissible) exemption application, rendered the special leave petition infructuous. There was no live grievance regarding the extension of temporary bail that the court could remedy, as the petitioner was already in custody. The court's reasoning here was pragmatic and focused on the mootness of the substantive relief sought. The analysis thus seamlessly connected the procedural error (entertaining the exemption application) with the substantive outcome (the petition becoming infructuous).

Conclusion

The Supreme Court disposed of the special leave petition as infructuous. The basis for this disposition was twofold. First, the court authoritatively clarified the law under Order XXII Rule 5 of the Supreme Court Rules, 2013, holding that applications for exemption from surrendering are admissible only in cases where the petitioner has been sentenced to a term of imprisonment. Second, applying this law to the facts, the court found that since the petitioner had surrendered following the rejection of his inadmissible exemption application, the substantive challenge to the High Court's bail order no longer presented a live controversy. All pending applications, if any, were also disposed of. The court's order also included an administrative direction for its ruling to be placed before the Chief Justice to guide the Registry's future practice, thereby giving the decision a prospective, systemic impact beyond the immediate case.