Exemption From Surrender - Limited Leave Granted - Appeal Under Article 136 Does Not Become In Fructuous

Exemption From Surrender Before The Special Leave Petition Is Heard

It has been the practice of the Supreme Court not to hear a special leave petition directed against an order of conviction and sentence, till the petitioner has surrendered. Rule 6 of Order XXI of the Supreme Court Rules requires that the petitioner must first surrender and produce the surrender certificate before the petition is heard. However, the petitioner can, if so advised, move an application for exemption from surrendering. In such a case, the application for exemption is listed before the Court for orders.

However where the High Court has granted time to surrender and the petitioner has moved the Supreme Court by special leave within that period with an application for exemption from surrender, such petition, if fixed for admission before the date of the surrender allowed by the High Court, may be heard.

In K.L. Subbayya v. State of Karnataka, the petitioner was sentenced for 3 months' imprisonment by the High Court. The petitioner filed an application for exemption from surrendering and for bail. The Court after hearing the petition was inclined to grant special leave and the counsel requested that in view of the special leave being granted, the petitioner should be exempted from surrendering. The Court granted leave and exempted the petitioner from surrendering and granted bail to the satisfaction of the trial court. As a matter of practice, the Court rarely grants exemption from surrendering: it might do so when the sentence is very short.

Limited Leave Granted

The Court cannot ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting special leave. Such an order must be considered to be final and not open to. reconsideration on a point which was open at the time of the argument on the special leave application. On the facts of the undernoted case, there was no discovery of any fact which would justify re-examination of the order.

Appeal Under Article 136 Does Not Become In Fructuous Merely Because The Decision of The High Court Has Been Implemented

In Union of India v. G.R.Prabhavalkar, the Court has held that the mere fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India had become in fructuous. In case the parties have changed their position after the High Court judgment, that by itself would not be a ground to decline to hear the petition, and the Apex Court had the power to restore status quo ante or pass such necessary orders as it may deem fit in the interests of justice

Special Leave Petition By A Person Who Was Not A Party Before The High Court
Though as a rule a special leave petition can be filed by a person who was a party before the High Court, any person aggrieved by the order of the High Court can prefer a special leave petition against the order. However, the petition must be accompanied by an application for permission to file the special leave petition, which should inter alia state how the person is aggrieved by the order of the High Court.

In the case of Ram Janam Singh v. State of U.P., the High Court, on a writ petition filed by the private respondents, interpreted the service rule which affected the seniority of various persons in the service concerned These persons were not parties before the High Court. The Supreme Court held that since the order of the High Court affected the petitioners before it they had locus standi to file the special leave petition.

In Arunachalam v. P.S.R. Sadhanantham, a doubt was raised about the competence of a private party, as distinguished from the State, to invoke the jurisdiction of the Supreme Court under Article 136 of the Constitution against a judgment of acquittal by the High Court. The Court observed: as follows:
"Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court's jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it. We do not have the slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of private parties also. The circumstances that the Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a subordinate court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136.".

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