A) ABSTRACT / HEADNOTE

Jasminbhai Bharatbhai Kothari v. State of Gujarat, SLP (Criminal) Diary No. 45970 of 2023 (Judgment dated 30-01-2025) considers the proper scope and application of Order XXII, Rule 5 of the Supreme Court Rules, 2013 (hereafter SC Rules 2013) specifically whether an interlocutory application for exemption from surrendering may be entertained in a Special Leave Petition (Criminal) where the impugned orders do not involve a sentence of imprisonment.

The Bench (Vikram Nath and Sandeep Mehta, JJ.) held prima facie that Order XXII, Rule 5 applies only where the appellant has been sentenced to a term of imprisonment; it does not extend to other contexts such as cancellation of bail, rejection of anticipatory bail, or denial of extension of interim/temporary bail. The Registry’s practice of accepting exemption-from-surrender applications in those broader categories was identified as erroneous.

Precedents including Kapur Singh v. State of Haryana and chamber rulings such as Mahavir Arya were relied upon to demonstrate consistent treatment that the surrender/exemption machinery is engaged only when a sentence of imprisonment exists. Because the petitioner had sought such an interlocutory application which was registered and rejected in-chambers, the Court directed that the issue be placed before the Chief Justice for administrative clarification as to filing/scrutiny/numbering where Order XXII, Rule 5 is engaged. The SLP in question was dismissed as infructuous on the ground that the petitioner had surrendered (record as rectified subsequently to note petitioner was absconding), and pending applications stood disposed. 

Keywords: Order XXII Rule 5 (SC Rules 2013); exemption from surrendering; surrender certificate; temporary/interim bail; Kapur Singh; registry practice.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGMENT

The SLP stems from a High Court order dated 19-10-2023 refusing to extend temporary bail earlier granted to the petitioner in a pending criminal appeal against a conviction and sentence in a trial court (conviction under s.302 IPC read with s.34 IPC and s.25(1)(B)(A) Arms Act, 1959). When the petitioner filed the SLP in this Court he also filed an Interlocutory Application seeking exemption from surrendering; the Registry registered that application and it was rejected by the Judge-in-Chambers on 08-12-2023. The Supreme Court noticed an anomaly in entertaining such an interlocutory application at the SLP stage when the underlying orders did not impose a term of imprisonment. The Court examined the plain text of Order XXII, Rule 5 of the SC Rules 2013, which conditions registry acceptance and the procedure for surrender/exemption only on the existence of a sentence of imprisonment.

The Court also reviewed prior authorities where similar practice was repudiated, e.g., Kapur Singh v. State of Haryana and chamber rulings like Mahavir Arya, and decisions such as Mayuram Subramanian Srinivasan v. CBI, Vivek Rai v. High Court of Jharkhand, Dilip Majumder, and Sanjit Saha v. State of West Bengal which, cumulatively, support the restricted application of Rule 5 to cases involving sentences of imprisonment. The Bench therefore treated registry practice of entertaining such exemption applications in a broader category of matters (anticipatory bail rejections, cancellation of bail, or refusal to extend interim bail) as inappropriate and directed administrative steps to correct filing/scrutiny/numbering protocols; it further disposed the SLP as infructuous given surrender (later corrected in record to note the petitioner was absconding).

D) FACTS OF THE CASE

The petitioner, convicted by the Additional Sessions Judge, Bhavnagar by judgment dated 03-11-2018, was sentenced for offences under s.302 IPC read with s.34 IPC and s.25(1)(B)(A) Arms Act, 1959. The petitioner’s criminal appeal (Criminal Appeal No. 417 of 2009 in the High Court) remained pending; the High Court Division Bench refused to extend a period of temporary bail on 19-10-2023. Thereafter the petitioner filed a Special Leave Petition (Criminal) in this Court challenging that refusal. Simultaneously, an Interlocutory Application (IA No. 248997 of 2023) seeking exemption from surrendering was filed with the SLP. The Registry registered the IA and it was placed before the Judge-in-Chambers who rejected it on 08-12-2023.

The Supreme Court, on preliminary consideration, identified an anomaly namely that Order XXII, Rule 5 speaks specifically of cases where the appellant has been sentenced to a term of imprisonment, and sets out documentary proof requirements for surrender; it does not contemplate an IA for exemption from surrendering in cases where the impugned orders do not impose imprisonment or only involve bail cancellation or refusal to extend interim bail. The Court recorded that the Registry had been entertaining such applications in broader categories and treated the practice as inconsistent with the textual rule and prior authorities. Finally, the Court noted that since the petitioner had surrendered after the IA was rejected, the present SLP became infructuous (later record clarified that petitioner was absconding).

E) LEGAL ISSUES RAISED

i. Whether Order XXII, Rule 5 of the Supreme Court Rules, 2013 permits an interlocutory application for exemption from surrendering to be filed in a Special Leave Petition where the impugned orders do not involve a sentence of imprisonment?
ii. Whether the Registry may entertain and number exemption-from-surrender applications in SLPs arising from cancellation/rejection of bail or refusal to extend interim bail?
iii. What administrative steps, if any, should the Court take to ensure consistency in filing, scrutiny and numbering of matters in which Order XXII, Rule 5 applies?

F) PETITIONER / APPELLANT’S ARGUMENTS

i. The counsels for Petitioner / Appellant submitted that the special leave petition challenged the High Court’s refusal to extend temporary bail and that an application for exemption from surrendering was necessary to preserve the petitioner’s liberty while the SLP was pending.
ii. It was urged that registry practice of accepting such IAs is well-established and that refusal to entertain the IA would result in hardship and practical prejudice to the petitioner.
iii. Counsel relied on procedural fairness and urged the Court to consider the IA in-chambers so as to avoid immediate surrender where relief on merits might be granted later.

(These arguments are recorded in the petition and interlocutory pleadings filed before the Court; the Court’s order records the filing and subsequent rejection of the IA.)

G) RESPONDENT’S ARGUMENTS

i. The counsels for Respondent submitted that the High Court order refusing extension of temporary bail was a judicial exercise of discretion and that the petitioner must surrender in accordance with applicable law and procedure.
ii. Respondent contended that registry formalities and rules must be respected and that exemption from surrendering is not a broad remedy to be used where no term of imprisonment has been imposed by the impugned order.
iii. It was emphasized that permitting such IAs would undermine the text and intent of Order XXII, Rule 5 and create administrative confusion.

H) RELATED LEGAL PROVISIONS 

i. Order XXII, Rule 5, Supreme Court Rules, 2013 — documentary proof of surrender and rule on exemption application being heard first when petition accompanied by exemption application.
ii. Indian Penal Code, 1860, s.302; s.34 — substantive offences in the trial court conviction.
iii. Arms Act, 1959, s.25(1)(B)(A) — offences under which sentence awarded.

I) JUDGMENT 

The Court’s prima facie view was that Order XXII, Rule 5 must be read literally: it is engaged only when the appellant has been sentenced to a term of imprisonment. The Rule creates a pre-condition for registry acceptance of appeals where surrender is involved and prescribes the proof required certified order of the court of surrender or jail certificate. If an appeal is accompanied by an application for exemption from surrendering, that application alone is to be posted for orders before the Court in the first instance. The Supreme Court observed that the Registry had, in practice, entertained exemption applications in other categories (anticipatory bail rejection, cancellation of bail, refusal to extend interim bail). Relying on precedents such as Kapur Singh v. State of Haryana (2021) 18 SCC 579 and earlier decisions like Mayuram Subramanian Srinivasan v. CBI, Vivek Rai v. High Court of Jharkhand, the Court held that those decisions interpret Rule 5 narrowly and consistently.

On that textual and precedential basis the Court held that the interlocutory application before it could not have been entertained at the initial stage since the petitioner had not been sentenced to a term of imprisonment by the impugned order. The Bench directed that this administrative difficulty be placed before the Chief Justice for instructions to the filing/scrutiny/numbering sections dealing with matters where Order XXII, Rule 5 applies. On the facts, because the petitioner surrendered after the IA was rejected, the SLP challenging the High Court’s refusal to extend temporary bail became infructuous and was disposed; pending IAs were disposed. (Note: the record was later rectified to state the petitioner was absconding.)

a. RATIO DECIDENDI

The controlling ratio is textual and administrative: Order XXII, Rule 5 applies only when an appellant has been sentenced to a term of imprisonment. The rule’s procedural command acceptance of a petition only if accompanied by proof of surrender or an application for exemption (which is to be listed first) cannot be stretched to cover cases where the impugned order does not fix a term of imprisonment (for example, cancellation of bail, refusal to extend interim bail, or rejection of anticipatory bail).

Prior Supreme Court orders and chamber rulings (including Kapur Singh and Mahavir Arya) confirm this narrow reading. Therefore, registries must not accept or list exemption-from-surrender IAs in the broader categories; administrative corrections and instructions are warranted to prevent inconsistent practice.

b. OBITER DICTA 

The Court, in obiter, criticised registry practice for blurring the distinction between surrender in consequence of sentence and routine bail issues. The Court observed that a mere attestation on Vakalatnama by jail authorities is insufficient proof of surrender and reiterated the necessity of certified surrender orders or jail certificates as proof under Rule 5. It signalled that consistent administrative directions are necessary to prevent registry-level uncertainty and to protect the rule’s integrity. The remarks underline the Court’s sensitivity to court procedure and the limits of judicial-administrative discretion at registry level.

c. GUIDELINES 

i. Order XXII, Rule 5 must be interpreted to apply only where a sentence of imprisonment has been awarded and thus a surrender question genuinely arises.
ii. Registries must not accept interlocutory applications for exemption from surrendering in SLPs which arise from cancellation or refusal of bail, or from orders that do not impose imprisonment.
iii. Where a petition is accompanied by a proper application for exemption from surrendering (in the narrow class of cases covered by Rule 5), that IA alone shall be posted for orders first, and petition acceptance must be contingent on proof or exemption application as set out in the Rule.
iv. Filing, scrutiny and numbering sections to be given formal instructions by the Chief Justice to ensure uniform compliance with Rule 5 and to avoid registry anomalies.

J) CONCLUSION & COMMENTS

The judgment functions as a necessary procedural correction: it restores the textual boundary of Order XXII, Rule 5 and prevents registry practice from expanding the Rule into a general vehicle to defer surrender in ordinary bail disputes. The decision emphasises rule-based administration of appellate filings and the narrow circumstances in which an exemption-from-surrender plea is maintainable at the SLP stage. For practitioners the lesson is clear: where the impugned order does not impose imprisonment, relief by way of an IA for exemption from surrendering is procedurally impermissible at the SLP registration stage; instead, counsel must resort to usual appellate remedies or seek appropriate orders from the trial/High Court within its jurisdiction.

The Court’s direction for administrative clarification is salutary it will (if implemented) reduce inconsistent practices and unnecessary in-chambers listings. Finally, the case underscores the importance of precise registry compliance: documentary proof of surrender must be a certified court order or jail certificate, not mere vakalatnama attestations. The judgment is corrective rather than doctrinally novel, but it carries high practical importance for criminal appellate practice and court administration.

K) REFERENCES

a. Important Cases Referred

1. Jasminbhai Bharatbhai Kothari v. State of Gujarat, SLP (Crim.) Diary No. 45970 of 2023, Judgment dated 30 Jan. 2025, [2025] 1 S.C.R. 1491 (INSC).

2. Kapur Singh v. State of Haryana, (2021) 18 SCC 579.

3. Mayuram Subramanian Srinivasan v. CBI, (2006) 5 SCC 752; [2006] Supp. 3 SCR 48.

4. Vivek Rai & Anr. v. High Court of Jharkhand, (2015) 12 SCC 86; [2015] 1 SCR 1014.

5. Mahavir Arya v. State Government NCT of Delhi & Anr., SLP (Crim.) Diary No. 8160 of 2021 (Chamber order).

6. Dilip Majumder v. Nikunja Das & Anr., SLP (Crim.) Diary No. 6517 of 2020 (Chamber).

7. Sanjit Saha & Anr. v. State of West Bengal, 2023 SCC OnLine SC 1693; [2023] 15 SCR 83.

b. Important Statutes & Rules Referred

1. Supreme Court Rules, 2013, Order XXII, Rule 5.

2. Indian Penal Code, 1860 (Sections 302, 34).

3. Arms Act, 1959 (Section 25(1)(B)(A)).