The Supreme Court has asked the Registrar (Judicial) to issue instructions to officials that there is no need to file an application seeking exemption from surrendering when the order under challenge is only one of cancellation of bail.
Justice P.S. Narasimha passed this order while hearing a petition filed by Mahavir Arya.
Justice Narasimha said,
“When these applications for condonation of delay in making deposit and restoration of the application for exemption from surrendering were listed before me, I enquired from the advocate for the petitioner the need for seeking an exemption from surrendering when the order impugned is only a case of cancellation of bail.”
The Court noted that the Registry normally insists on filing such an application and he has no option. When informed, the counsel that the Rule applies only for Criminal Appeals or Special Leave Petitions where the petitioner is “sentenced to a term of imprisonment” and not to SLP’s against cancellation of bail, some lawyers said that they find it prudent to file such applications instead of arguing with the Registry without any success. This is completely unacceptable.
The Court stated that the officers of the Registry must know the Supreme Court Rules like the back of one’s hand. Order XXII Rule 5, 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. What is disturbing is that a large number of such applications for exemptions are routinely filed when there is no need to adopt such a procedure at all. This has serious consequence of increasing the burden of lawyers, judges and even the Registry.
The Court found that it necessary to note this position after Raghenth Basant, member of the Bar, has brought to its notice successive orders passed by the Supreme Court holding that applications for surrender were wrongly filed and that there was no need to insist on filing of such applications. The officers could have at least taken note of the following judicial orders, Kapur Singh Vs. State of Haryana 2021 SCC Online 586, Dilip Majumder v. Nikunja Das &Anr. SLP (Crl) Dy. No.6517/2020, Vivek Rai v. High Court of Jharkhand (2015) 12 SCC 86, K.M. Nanavati v. State of Bombay AIR 1961 SC 112 (para 15) and Mayuram Subramanian Srinivasan v. CBI (2006) 5 SCC 752 (paras 16 to 18), to name a few.
The Registrar (Judicial) is directed to issue formal instructions to the concerned filing, scrutiny and numbering Sections with respect to matters in which Order XX, Rule 3 and Order XXII, Rule 5 will apply. The officer must also instruct them not to insist on such applications in other cases.
The Court further noted that the petitioner was arrested for an offence under Section 420 read with 34 IPC. He was granted bail by the High Court subject to payment of an amount. Upon his failure to pay the amount, the High Court recalled its order granting bail and ordered the petitioner to surrender. An application to recall that order came to be dismissed by the order.
A Special Leave Petition was filed against the above referred order. Along with it, an application for exemption from surrendering is also filed.
The advocate should have known that such an application was totally unnecessary. Chamber Judge granted exemption. However, as notice was issued on the application, without a direction to list the case before the regular Court for admission, the matter kept coming before the Chamber Court.
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On August 10, 2021, the Chamber Judge directed that the petitioner must pay balance money within four weeks, if not, the application for surrendering will be dismissed without reference to the Court. As the amount was not deposited, it was assumed that the application stands dismissed without reference to the Court. It is for this reason that the Advocate filed the application for restoration.
“All this happened when there is no mandate in law to seek an exemption from surrendering at all. The Constitutional remedy under Article 136 is available to the petitioner without surrendering as this is not a case where the accused is ‘sentenced’. As this is not a case requiring surrender, there was never a need to file the application for exemption from surrendering. However, as an order directing dismissal of the so called application for exemption from surrendering was passed, I shall recall that order and direct the case to be listed before the Regular Bench for admission and disposal,”
-the Court said.
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“Delay in filing the application for paying balance amount is condoned. Application for restoration is allowed.
List the case before the Regular Bench for admission,” the order reads.