Can High Courts exempt convicts from surrender using inherent powers? Supreme Court refers issue to larger Bench

A three-judge Bench of the Supreme Court will decide whether High Courts can use their inherent powers under Section 482 of Code of Criminal Procedure (CrPC) [now Section 528 of Bharatiya Nagarik Suraksha Sanhita) to exempt convicts from surrendering before hearing revision petitions against conviction [Sudhir Khaitan v. State of Rajasthan & Ors.].

A Bench of Justices PS Narasimha and Alok Aradhe said conflicting rulings on the issue have created uncertainty in criminal practice and require authoritative clarification.

Procedural rules in many High Courts require a convict, who is not in custody, to surrender before a revision against conviction is taken up.

However, High Courts have sometimes used their inherent powers to relax this requirement in exceptional cases - an approach supported in one Supreme Court decision but questioned in a later one.

In Vivek Rai v High Court of Jharkhand, the Supreme Court had observed that procedural rules requiring surrender would not take away the inherent powers of High Courts to grant exemption from surrender in appropriate cases.

However, in a later decision in Daulat Singh v State of Madhya Pradesh, the Court expressed doubt about this position and observed that allowing exemption from surrender despite conviction could lead to difficulties, particularly where lower courts have already upheld the conviction.

The Bench noted that this uncertainty has resulted in confusion in the application of surrender rules, and similar concerns have been reflected in orders passed by different High Courts.

The present case arose from an order of the Rajasthan High Court, which refused to take up revision petitions filed by the petitioner on the ground that he had not surrendered, as required under Rule 311(3) of the Rajasthan High Court Rules, 1952.

That rule mandates that where a person has been sentenced to imprisonment and is not on bail, a revision petition before the High Court must be accompanied by a certificate confirming that the convict has surrendered.

Observing that the legal position requires clarity, the Supreme Court referred the question relating to the extent of inherent powers of High Courts to exempt surrender to a larger Bench.

It directed the court registry to place the matter before the Chief Justice of India for constitution of an appropriate Bench.

The petitioner in the case was represented by advocates Atul Jha, Shruti Jose and Sandeep Kumar J.

The respondents were represented by advocates Aneesha Rastogi, Nidhi Jaswal, Karan Khetani, Sriharshitha Chada, Niteen Kumar Sinha, Ram Avtar Sharma, Anuj Bhandari, Jahanvi Bhardwaj and Ishu Bhardwaj.

[Read Order]

Sudhir Khaitan v. State of Rajasthan & Ors.