Is High Court Rule Mandating Surrender Of Convict Before Considering Suspension Of Sentence Bar On Power U/s. 482 CrPC: SC Refers To Larger Bench
The Supreme Court referred the issue of whether the High Court’s inherent powers can exempt a convicted individual from the mandatory surrender requirement before filing a revision petition.
Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe, Supreme Court
The Supreme Court has referred the question of the interplay between Rule 311(3) of the Rajasthan High Court Rules, 1952 and the inherent power under Section 482 of the Code of Criminal Procedure to the CJI for the constitution of a larger bench.
Rule 311(3) of the Rajasthan High Court Rules 1952 mandated that in cases involving a sentence of imprisonment, an appeal or revision must be accompanied by a certificate stating that the accused has surrendered if he is not on bail.
The Bench of Justice PS Narasimha and Justice Alok Aradhe observed, “In view of the above, we refer the question relating to the interplay between Rule 311(3) of the Rajasthan High Court Rules, 1952 and the inherent power under Section 482 of the Code of Criminal Procedure, coupled with the correctness of the decision taken in the case of Vivek Rai (Supra), to a larger Bench.”
Advocate on Record Sandeep Kumar Jha appeared for the Petitioner, while Advocate on Record Nidhi Jaswal appeared for the Respondent.
A Special Leave Petition was filed impugning the order passed by the Rajasthan High Court whereby the revision petitions and the application for suspension of sentence were not taken up for consideration on the ground that the Petitioner had not surrendered.
The core legal issue was whether a criminal revision and suspension application filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—challenging a conviction upheld by an Appellate Court—is maintainable without the accused surrendering to jail authorities.
The parties before the High Court raised the issue of whether the criminal revision petition and the application seeking suspension of sentence filed under Sections 438 and 442 of BNSS against the judgment of conviction passed by the trial court and upheld by the Appellate Court is maintainable in terms of Rule 311(3) of the Rajasthan High Court Rules, 1952 without surrender of the convicted accused before the Jail Authorities?
It referred to its decision in Vivek Rai v. High Court of Jharkhand (2015), which held that the mandate of the Rule would not dilute the inherent power of the Court to consider and grant an exemption from surrendering.
It said that, however, Daulat Singh v. State of Madhya Pradesh, (2024), the Court expressed doubt regarding the proposition that the High Court may, in exercise of its inherent powers, exempt the requirement of surrender, observing that such a proposition is “debatable” and holding that it would not be appropriate to accept it as a sound proposition of law, particularly in cases involving concurrent findings of conviction.
“We are of the opinion that this uncertainty about the obligation to surrender under Rule 311(3), coupled with the principle in Vivek Rai (supra) must be resolved at the earliest. We have also come across similar predicament expressed in some other orders of the High Courts”, the Court said.
Accordingly, the Court referred the matter to a larger bench.
Cause Title: Sudhir Khaitan v. State of Rajasthan & Ors. [Special Leave Petition (Crl.) Nos. 19025-19027 OF 2025]
Appearances:
Petitioner: Advocate on Record Sandeep Kumar Jha, Advocate Atul Jha, Advocate Shruti Jose.
Respondent: Advocate on Record Nidhi Jaswal, Advocate on Record Niteen Kumar Sinha, Advocate on Record Anuj Bhandari, Advocate Aneesha Rastogi, Advocate Karan Khetani, Advocate Sriharshitha Chada, Advocate Ram Avtar Sharma, Advocate Jahanvi Bhardwaj, Advocate Ishu Bhardwaj.