Holding

An interlocutory application for exemption from surrendering under Order XXII Rule 5 may be entertained only when the petitioner has been sentenced to a term of imprisonment.

Summary

Jasminbhai Bharatbhai Kothari, convicted under IPC Section 302 read with Section 34 and the Arms Act, sought an extension of temporary bail, which the Gujarat High Court refused. While filing a Special Leave Petition (SLP) before the Supreme Court, he also filed an interlocutory application seeking exemption from surrendering, which the Registry rejected. The Court examined whether such an application could be entertained under Order XXII Rule 5 of the Supreme Court Rules, 2013. It held that the rule applies only when the petitioner has been sentenced to a term of imprisonment, a condition not satisfied in this case. Consequently, the interlocutory application was improper, the petitioner’s surrender rendered the SLP infructuous, and the petition was dismissed.

Issues considered

Whether an interlocutory application for exemption from surrendering can be entertained under Order XXII Rule 5 of the Supreme Court Rules, 2013 when the petitioner has not been sentenced to a term of imprisonment.

Legislation cited

Arms Act, 1959s. 25(1)(B)(A)
Indian Penal Code, 1860s. 302, s. 34
Supreme Court Rules, 2013s. Order XXII Rule 5

Headnote

Issue for Consideration Plain reading and interpretation of Order XXII Rule 5 of the Supreme Court Rules, 2013. Headnotes† Supreme Court Rules, 2013 – Interpretation of Order XXII Rule 5 – The instant SLP is filed against the order dated 19.10.2023 passed by the High Bench had refused to extend the period of temporary bail granted to the petitioner – While preferring the present special leave petition, the petitioner also filed an Interlocutory Application seeking exemption from surrendering – The said application was registered by the

Subjects

Order XXII Rule 5 of Supreme Court Rules, 2013exemption from surrenderingtemporary bailspecial leave petitioninfructuous

Judgment

[2025] 1 S.C.R. 1491 : 2025 INSC 172

Jasminbhai Bharatbhai Kothari
v.
State of Gujarat
(Special Leave Petition (Criminal) Diary No. 45970 of 2023)
30 January 2025
[Vikram Nath and Sandeep Mehta, JJ.]

Issue for Consideration
Plain reading and interpretation of Order XXII Rule 5 of the Supreme
Court Rules, 2013.

Headnotes†
Supreme Court Rules, 2013 – Interpretation of Order XXII
Rule 5 – The instant SLP is filed against the order dated
19.10.2023 passed by the High Court, whereby the Division
Bench had refused to extend the period of temporary bail
granted to the petitioner – While preferring the present
special leave petition, the petitioner also filed an Interlocutory
Application seeking exemption from surrendering – The said
application was registered by the Registry and stands rejected
by the Hon’ble Judge-in-Chamber vide order dated 08.12.2023:
Held: The prima facie opinion of this Court is that the Interlocutory
Application seeking exemption from surrendering could not have
been entertained in the very first instance – This conclusion is
based on plain reading and interpretation of Order XXII Rule 5
of the Supreme Court Rules, 2013 – On perusal of the aforesaid
Rule, it is clear that an Interlocutory Application for exemption from
surrendering is admissible only where the petitioner in the special
leave petition has been ‘sentenced to a term of imprisonment’ and
not in any other situation – The Registry of this Court has been
entertaining applications for exemption from surrendering in various
other categories of cases, such as the rejection of anticipatory bail,
rejection of a prayer for an extension of interim bail, etc. – This
Court is firmly of the opinion that 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 – This
1492 [2025] 1 S.C.R.

Supreme Court Reports

order shall be placed before Hon’ble the Chief Justice of India
for seeking formal instructions to the concerned filing, scrutiny
and numbering Sections concerning matters in which Order XXII
Rule 5 will apply – Returning to the facts of the present case,
since the petitioner has already surrendered upon the rejection
of the Interlocutory Application, the present special leave petition
challenging the High Court's refusal to extend the temporary bail
has become infructuous. [Paras 4, 5, 6, 11]

Case Law Cited
Kapur Singh v. State of Haryana (2021) 18 SCC 579 – relied on.
Mahavir Arya v. State Government NCT of Delhi and Anr., Special
Leave Petition (Criminal) [Diary No. 8160 of 2021]; Mayuram
Subramanian Srinivasan v. CBI [2006] Supp. 3 SCR 48 : (2006)
5 SCC 752; Vivek Rai and Another v. High Court of Jharkhand
[2015] 1 SCR 1014 : (2015) 12 SCC 86; Dilip Majumder v. Nikunja
Das & Anr., Special Leave Petition (Criminal) [Diary No. 6517
of 2020]; Sanjit Saha and Another. v. State of West Bengal [2023]
15 SCR 83 : 2023 SCC OnLine SC 1693 – referred to.

List of Acts
Penal Code, 1860; Arms Act, 1959; Supreme Court Rules, 2013.

List of Keywords
Order XXII Rule 5 of Supreme Court Rules, 2013; Exemption from
surrendering.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition
(Criminal) Diary No. 45970 of 2023
From the Judgment and Order dated 19.10.2023 of the High Court
of Gujarat at Ahmedabad in CRMA No. 9 of 2023 in R/Crl A No.
417 of 2019

Appearances for Parties
Advs. for the Petitioner:
Miss Aanchal Jain, Karan Dewan.
[2025] 1 S.C.R. 1493

Jasminbhai Bharatbhai Kothari v. State of Gujarat

Judgment / Order of the Supreme Court

Order

1. This present petition is directed against the order dated 19th October,
2023 passed by the High Court of Gujarat1, whereby the Division
Bench had refused to extend the period of temporary bail granted
to the petitioner in Criminal Appeal No. 417 of 2009, preferred by
the petitioner herein, which is pending adjudication before the High
Court. In the said criminal appeal, the petitioner has assailed the
conviction and sentence awarded by the learned Additional Sessions
Judge, District Court Bhavnagar vide judgment dated 3rd November,
2018, for the offences punishable under Section 302 of the Indian
Penal Code, 1860 read with Section 34 and Section 25 (1) (B) (A)
of Arms Act, 1959.
2. We have noticed an apparent anomaly in the listing of this petition
which we propose to clarify and address.
3. While preferring the present special leave petition, the petitioner
also filed an Interlocutory Application2 seeking exemption from
surrendering. The said application was registered by the Registry
and stands rejected by the Hon’ble Judge-in-Chamber vide order
dated 8th December 2023.
4. We are of the prima facie opinion that the above application could
not have been entertained in the very first instance. Our conclusion
is based on plain reading and interpretation of Order XXII Rule 5 of
the Supreme Court Rules, 20133 which is reproduced hereinbelow: -
“Where the appellant has been sentenced to a term
of imprisonment, the petition of appeal shall state
whether the appellant has surrendered and if he has
surrendered then the appellant 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

1 For short, the ‘High Court.’
2 IA No. 248997 of 2023.
3 For short, ‘SC Rules 2013.’
1494 [2025] 1 S.C.R.

Supreme Court Reports

the sentence. A mere attestation of the signatures on
the Vakalatnama from the Jail authorities shall not be
considered as sufficient proof of surrender. 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.”
(emphasis supplied)

5. On perusal of the aforesaid Rule, it is clear that an Interlocutory
Application for exemption from surrendering is admissible only where
the petitioner in the special leave petition has been ‘sentenced to a
term of imprisonment’ and not in any other situation.
6. We have observed that the Registry of this Court has been
entertaining applications for exemption from surrendering in various
other categories of cases, such as the rejection of anticipatory bail,
rejection of a prayer for an extension of interim bail, etc.
7. In the case of Mahavir Arya v. State Government NCT of Delhi and
Anr4, Hon’ble Shri Justice Pamidighantam Sri Narasimha, sitting in
Chambers, interpreted Order XXII Rule 5 of the SC Rules, 2013 and
held that the said Order 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.
8. In Kapur Singh v. State of Haryana5, this Court in a special leave
petition, challenging the order of cancellation of the bail, dismissed
the Interlocutory Application seeking exemption from surrendering
on a similar rationale. The Court noted that:
“6. In my considered view, the question of the petitioner
surrendering before the trial court, as a precondition for
entertaining the above SLP, does not arise. Order XXII
Rule 5 of the Supreme Court Rules, 2013, makes it

4 Special Leave Petition (Criminal) [Diary No. 8160 of 2021].
5 (2021) 18 SCC 579.
[2025] 1 S.C.R. 1495

Jasminbhai Bharatbhai Kothari v. State of Gujarat

mandatory for a person to surrender or seek exemption
from surrendering only when he has been sentenced
to a term of imprisonment. The petitioner has not been
sentenced to any term of imprisonment, by the orders
impugned in the SLP. The orders out of which the above
SLP arises, are orders passed for failure to comply with
the directions issued under Section 143-A of the NI Act.
9. When Section 143-A(5) of the NI Act read with Section
421(1)CrPC does not prescribe a term of imprisonment and
when the orders impugned in the SLP do not challenge
any penalty of imprisonment for a particular term, the
question of the petitioner surrendering or seeking
exemption from surrendering does not arise. In other
words, in cases of this nature, the Registry cannot insist
upon either a surrender certificate or an application
for exemption from surrendering under Order XXII
Rule 5 of the Rules.”
(emphasis supplied)

9. A similar view was taken by this Court in Mayuram Subramanian
Srinivasan v. CBI6; Vivek Rai and Another v. High Court of
Jharkhand7; Dilip Majumder v. Nikunja Das & Anr.8; and Sanjit
Saha and Another. v. State of West Bengal.9
10. In view of the clear language of Order XXII Rule 5 of the SC Rules
2013 and successive orders passed by this Court as mentioned
above, we are firmly of the opinion that 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.
This order shall be placed before Hon’ble the Chief Justice of India
for seeking formal instructions to the concerned filing, scrutiny and
numbering Sections concerning matters in which Order XXII Rule
5 will apply.

6 (2006) 5 SCC 752.
7 (2015) 12 SCC 86.
8 Special Leave Petition (Criminal) [Diary No.6517 of 2020].
9 2023 SCC OnLine SC 1693.
1496 [2025] 1 S.C.R.

Supreme Court Reports

11. Returning to the facts of the present case, since the petitioner
has already surrendered upon the rejection of the Interlocutory
Application(supra), the present special leave petition challenging
the High Court’s refusal to extend the temporary bail has become
infructuous.
12. Accordingly, the special leave petition is disposed of as infructuous.

13. Pending application(s), if any, shall stand disposed of.

Result of the case: SLP dismissed.*

†
Headnotes prepared by: Ankit Gyan

* Ed. Note: Vide subsequent order dated 21st February, 2025, the fact recorded at paragraph Nos. 11
and 12 of Order dated 30th January, 2025 that the accused has surrendered was rectified and the
said paragraphs were directed to be read as under:- “In view of the oral submission made by learned
counsel for the petitioner and taking consideration the fact that the petitioner is absconding, the instant
special leave petition, challenging the High Court's order refusing to extent the temporary bail granted
to the petitioner, is dismissed.”