Supreme Court clarifies procedure for surrender of convicts in criminal appeals: Sanjit Saha & Anr. vs. The State of West Bengal (2023) INSC 1085 (09 October 2023)

Case Background

The case involves a Special Leave Petition filed by Sanjit Saha and Anil Saha, challenging their conviction under Section 376(2)(g) of the Indian Penal Code. They were sentenced to 10 years of rigorous imprisonment and a fine of Rs. 20,000 by the High Court at Calcutta. The petitioners initially sought exemption from surrendering, which was rejected by the Supreme Court, and they were given six weeks to surrender. Both the petitioners surrendered on 15.03.2019. However, due to a communication gap, the proof of surrender was not filed, leading to the dismissal of their petition. The matter was brought to the notice of the Court by Sanjit Saha, and an enquiry was ordered. It was found that both the petitioners had surrendered on 15.03.2019. However, Anil Saha had passed away on 26.05.2023, while serving his sentence.

Timeline

Course of Proceedings

The petitioners had challenged their conviction before the High Court at Calcutta, which upheld the trial court’s decision. Subsequently, they filed a Special Leave Petition before the Supreme Court. The Supreme Court initially rejected their application for exemption from surrendering and granted them six weeks to surrender. When the matter came up again, the court noted that the proof of surrender had not been filed and dismissed the petition. Upon the application of Sanjit Saha and subsequent enquiry, the court found that both the petitioners had surrendered.

Legal Framework

The judgment primarily deals with the interpretation of Section 376(2)(g) of the Indian Penal Code, which pertains to the offense of rape. However, the core of the judgment revolves around the procedural aspects of filing a Special Leave Petition before the Supreme Court, particularly concerning the surrender of the convict. The judgment also discusses Order XXII Rule 5 of the Supreme Court Rules, 2013, which mandates that a petitioner must surrender to the sentence before filing a Special Leave Petition, unless exempted.

Order XXII Rule 5 of the Supreme Court Rules, 2013 states:

“5. 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. A mere attestation of the signatures on the Vakalatnama from the jail authorities shall not be considered as sufficient proof of surrender. 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 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.”

Additionally, Order V Rule 2(35) of the Supreme Court Rules, 2013, empowers a Judge In-Chambers to grant or refuse exemption from surrendering.

“35. Application for exemption from surrendering, provided that not more than one opportunity be granted for surrendering. In case of refusal and/or if accused do(es) not surrender, the matter be placed before the Hon’ble Judge in Chambers for non-prosecution.”

Arguments

The primary argument of the petitioners was that they had surrendered on 15.03.2019, as directed by the Supreme Court. However, due to a communication gap, the proof of surrender was not filed in court. The counsel who was engaged by the petitioners had passed away on 10.04.2021, which further contributed to the issue. The petitioners contended that their right to appeal should not be defeated due to this procedural lapse.

The Court also considered the implications of the non-appearance of counsel and the need for free legal assistance for the poor and indigent, citing previous judgments.

The State did not make any specific arguments in this matter.

Issues Framed by the Supreme Court

The Supreme Court did not frame explicit issues but considered the following:

• Whether the Special Leave Petition could be restored despite the non-filing of surrender proof.
• Whether the death of the counsel and the communication gap should be considered as sufficient reasons for the lapse.
• Whether the jail authorities have a positive obligation to inform the court about the surrender of a convict.

Treatment of the Issue by the Court

Authorities

The Court relied on the following authorities:

Judgment

The Court used the following authorities for its reasoning:

• Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729: The Court cited this case to emphasize the need for appointing an amicus curiae when the counsel is absent.
• Madan Lal Kapoor v. Rajiv Thapar and Others, (2007) 7 SCC 623 and Bani Singh and Others v. State of U.P., (1996) 4 SCC 720: These cases were used to support the principle that a criminal case should not be dismissed for default in the absence of counsel.
• Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401: This case was cited to highlight that free legal assistance is a fundamental right for the poor and indigent.
• Madhav Hayawadanrao Hoskot v. State of Maharashtra, [(1978) 3 SCC 544]: The Court relied on this case to recognize the right to counsel as a facet of Article 21 of the Constitution.
• Sunil Batra (II) vs. Delhi Administration, (1980) 3 SCC 488: This case was cited to highlight the role of lawyers in assisting prisoners and reporting legal grievances.

The Court observed that:

“The problem has arisen in this case due to a communication gap. I feel urgent steps need to be taken so that these eventualities do not occur again.”

The Court also noted:

“A positive obligation vests in the jail authorities to communicate the factum of surrender of the convict to the Court. This is a means of providing access to justice, which again is a facet of Article 21.”

The Court further stated:

“Even if there is a default in reporting compliance by the party or counsel for whatever reason, the right to have a constitutional remedy under Article 136 of the Constitution of India or remedies by way of statutory appeals ought not to be defeated.”

What weighed in the mind of the Court?

The Court was primarily concerned with ensuring that the right to appeal, a fundamental aspect of Article 21 of the Constitution, is not defeated due to procedural lapses or communication gaps. The Court emphasized the positive obligation of jail authorities to communicate the surrender of convicts to the court. The Court was also influenced by the fact that the petitioners had surrendered as directed, and the non-filing of proof was due to circumstances beyond their control.

The Court’s reasoning is illustrated in the following flowchart:

Key Takeaways

• Jail authorities have a positive obligation to communicate the surrender of a convict to the court.
• The right to appeal should not be defeated due to procedural lapses or communication gaps.
• Courts should consider appointing an amicus curiae in cases where counsel is absent.
• The Supreme Court has emphasized the importance of access to justice, particularly for those incarcerated.
• The Court has suggested the creation of a digital portal for jail authorities to upload surrender and custody details.

Directions

The Supreme Court directed that the papers of the case, along with the order, be placed before the Hon’ble Chief Justice of India for further consideration and implementation of the guidelines.

Development of Law

The ratio decidendi of this case is that the right to appeal should not be defeated due to procedural lapses or communication gaps, especially when the convict has surrendered as directed by the court. The Court also clarified that jail authorities have a positive obligation to communicate the factum of surrender of the convict to the Court. This judgment reinforces the importance of procedural safeguards in protecting the fundamental rights of individuals, particularly those incarcerated.

Conclusion

The Supreme Court’s judgment in the case of Sanjit Saha & Anr. vs. The State of West Bengal highlights the importance of ensuring that the right to appeal is not defeated due to procedural lapses. The Court has emphasized the positive obligation of jail authorities to communicate the surrender of convicts to the court and has suggested the implementation of digital solutions to prevent such issues in the future. This case serves as a reminder of the need for procedural fairness and access to justice for all, especially those incarcerated.