SC not to entertain criminal cases without proof of surrender

New Delhi, June 16 (UNI) The Supreme Court shall not entertain any criminal appeal unless and until an appellant files proof of surrender.

The court held that Order 21 rule 13A of the Supreme Court rule which makes surrender by a person convicted by the courts below for his petition being entertained by the Supreme Court is mandatory in nature.

A bench comprising Justices Arijit Pasayat and Altamas Kabir today held that the order of suspension on the sentence by a Special Court was a relief granted to a convict to enable him to file an appeal in the superior court and to seek appropriate relief from that court.

The Court held that once the appeal is filed in this court, it has to be in accordance with the Supreme Court rule.

Order 21 rule 13A of the Supreme Court rule says that a criminal appeal can not be posted for hearing unless proof of surrender has been furnished by the applaint who has been convicted. The appeal without surrender can be entertained only if the petitioner has been granted exemption from surrendering by this court.

The Court overruled the contention of Kamni Jaiswal, counsel for the applaints Mayuram Subramanian Srinivasan and others, that if the sentence has been suspended by the special court then the petitioner need not surrender as Supreme Court rules can not overwrite statutory provisions.

The Supreme Court, while directing that the present appeals shall not be posted for hearing unless and until the applaints surrender and file the proof of surrender, observed ''to perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience''.

The Court also held that where, in a case, the decision has been rendered without reference to statutory bars, the same can not have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands at par if not on a better footing. The provisions of Section 439 do not appear to have been taken note of. ''Incuria'' literally means ''carelessness''.

With today's order, the Supreme Court has made it mandatory for every applaint in a criminal case to surrender first.

The Court also pointed out that Section 389 CrPC empowers the trial court to release a convicted person on bail to enable him to file an appeal and the counsel for the applaint has overlooked the question that grant of bail in the appeal presupposes surrender by the convicted person. The provisions of Section 389 CrPC and that of the Supreme Court Rules 1966 are independent provisions and will have to be considered on their own standing.

In the present case, none of the three applaints had filed a proof of surrender.

UNI AKS/SC SHB KP1735