Plea in Supreme Court challenges SC Rule mandating imprisonment convicts to file application for exemption from surrender along with SLP

A plea has been filed before the Supreme Court challenging the Constitutional validity of Rule 5 of Order XXII of the Supreme Court Rules, 2013 ( Mahendra Nandram Pardeshi v. Secretary General, Supreme Court of India).

. The Rule mandates that when a person sentenced to imprisonment prefers an appeal before the Supreme Court, the appeal should be accompanied by an "application seeking exemption from surrender"

The provision has been challenged with respect to its applicability to those convicts who have been granted time to surrender by the High Court.

. "Issue a writ/order/direction declaring Rule 5 of Order XXII of the Supreme Court Rules, 2013 to be ultra vires of Articles 14/21 of the Constitution in those cases where convicts have been granted time to surrender by the Hon’ble High Court," the petition prayed. . A 3-judge Bench headed by Chief Justice of India, SA Bobde agreed on Friday to hear the plea next week.

. The petition was filed under Article 32 of the Constitution by one Mahendra Nandram Pardeshi who was convicted and sentenced to 2 years imprisonment under the Prevention of Corruption act.

. Rule 5 of Order XXII of the Supreme Court Rules reads as follows:

"Where the petitioner has been sentenced to a term of imprisonment, the petition of appeal shall state whether the petitioner has surrendered and if he has surrendered then the petitioner 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 the Jail in which he is undergoing the sentence

Where the petitioner 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 the 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.”

. Effectively, the Rule prescribes that when a person has not surrendered as per the sentence of imprisonment awarded by court below, then he/ she has to file an application seeking exemption from surrender along with his/ her Special Leave Petition (SLP). That application will be listed for hearing first before the SLP itself is considered on merits.

. Pardeshi was convicted by the trial court in May 2017 which was challenged by him before the Bombay High Court.

The High Court, by a judgment dated October 23, 2020 upheld the conviction and granted him 12 weeks to surrender.

. Pardeshi then moved Supreme Court challenging the High Court verdict by way of SLP.

The petition was filed well within the 12 weeks’ time granted by the High Court. Though such time was given, the petitioner, in view of Rule 5 of Order XXII, preferred an application for exemption surrender despite the protection granted by the High Court.

. This application was listed in chambers and rejected by the chamber judge on December 18, 2020 prompting the petitioner to challenge the Constitutionality of the very provision requiring such application.

. The writ petition presently filed through advocate Amit Pai questions the operation of the rigor of Rule 5 of the Supreme Court Rules, 2013 compelling a convict to seek an exemption from surrender prior to listing of his appeal, even in cases wherein the High Court grants time to surrender.

The petitioner has contended that the Rule is in contravention of the guarantee under Articles 14 and 21 of the Constitution.

. "Restriction on the listing of the substantive petition seeking special leave to appeal before the Court for hearing on merits, in cases where the High Court has granted time, and such petition under Article 136 has been preferred within the time so granted, is in contravention of the due process guarantee enshrined in Articles 14 and 21 of the Constitution," says the plea.

. The petitioner has further submitted that Supreme Court Rules made in exercise of the powers in Article 145 cannot be in supersession of the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure (CrPC).

. "It is submitted that the High Court has granted time to surrender to the Petitioner in exercise of the inherent powers under Section 482 of the Cr. P.C., and therefore, it is submitted that the impugned Rule 5 of Order XXII of the Supreme Court Rules, 2013, cannot operate in supersession of the exercise of discretion by the Hon’ble High Court under Section 482," the petition states.

. It is the petitioner's case that the exercise of the right to file SLP "cannot be prefaced with a requirement to curtail the personal liberty so granted by the High Court, by virtue of the impugned Rule 5, and the same would violate Article 21."

. The petition will be heard by the Supreme Court along with Pardeshi's SLP next week.

. [Read Order]

Plea in Supreme Court challenges SC Rule mandating imprisonment convicts to file application for exemption from surrender along with SLP

Debayan Roy

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