Guidelines: If surrender of proof not provided then the registry may call for report from the trial judge

Application for exemption from surrender is rejected

1. The Special Leave Petitions were duly supported by an affidavit of Anil Saha – petitioner no.2 sworn on 13.12.2018. The Special Leave Petitions were accompanied with an application for exemption from surrendering.

2. The application for exemption from surrendering came up before the Learned Chamber Judge on 01.03.2019 when the following order was made, in the presence of the counsel for the petitioners:- “Application for exemption from surrendering is rejected. Six weeks’ time is granted for surrendering and produce the proof thereof.”

3. Thereafter, the matter came up for hearing on 24.02.2020 before the Learned Judge In-Chambers and the Learned Judge after noticing that learned counsel for the petitioners has not filed proof of surrender, granted two weeks’ further time to file the surrender proof. The order indicates that the counsel engaged was not present at the hearing. It was also ordered that if the surrender proof is not filed within two weeks from 24.02.2020 the Special Leave Petitions were to be dismissed without any further reference to the Court.

4. From the facts in para 1 to 11 above, the following aspects clearly emerge:

i. Firstly, in obedience to the order of this Court dated 01.03.2019 and well within the time granted by this Court, petitioner no.2 – Anil Saha (like petitioner No.1 – Sanjit Saha) surrendered on 15.03.2019.

ii. Secondly, petitioner No. 1 – Sanjit Saha has taken steps to move an application for recall pointing out that soon after surrender he had informed his counsel, who for various reasons including the fact that the counsel’s death happened on 10.04.2021 could not report the fact of surrender to this Court.

iii. Thirdly, this has resulted in the peremptory dismissal of the Special Leave Petitions since no surrender proof was filed within two weeks from the order dated 24.02.2020. The situation was in spite of surrendering to custody on 15.03.2019, for want of communication, the Special Leave Petitions of both petitioners also stood peremptorily dismissed as per the order of 24.02.2020.

iv. Lastly, it was only while ordering the restoration of the Special Leave Petition of petitioner no.1 and on the ordering of an enquiry, it has surfaced that the petitioner no.2 has in fact surrendered on 15.03.2019.

Communication of surrender of accused should be communicated to the judge

1. The legal position is when a Judge In-Chamber grants time to surrender, at the next hearing, the Judge has to be informed as to whether the convict has surrendered or not. If exemption from surrendering is refused and the accused does not surrender, the matter should be placed for non-prosecution. The Judge In-Chambers should be posted with the clear information as to whether the accused has surrendered or not surrendered after refusal of exemption. 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.

2. Guidelines are necessary as to the further course of action, in cases where after refusal of exemption from surrendering, the information is not forthcoming to the Court. Information may not be forthcoming for myriad reasons – counsel’s non-appearance, counsel’s death or for any other reason.

3. In the present case, both the petitioners had surrendered within the time granted by this Court but however there was no communication forthcoming on or before 24.02.2020, when the matter was listed in Chambers. Thereafter, it has come on record that the counsel engaged also passed away on 10.04.2021.

If counsel does not appear in criminal case the court should appoint an amicus

1. This Court has in several cases held that when counsel does not appear in a criminal case, the Court is obliged to appoint an amicus. [See Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729]. It has also been held that in the absence of counsel, the case should not be 14 decided and that a criminal case cannot be dismissed for default. [See 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]. This Court has held that free legal assistance for the poor and indigent at State cost is a fundamental right of a person accused of an offence even if the accused does not seek. [See Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401]. In Madhav Hayawadanrao Hoskot v. State of Maharashtra [(1978) 3 SCC 544] right to counsel to a prisoner has been recognised and traced to Article 21.

2. Since the matter directly engages with Article 21, there is a positive obligation vested on the part of the jail authorities to communicate to the Court information about their surrender and period of detention irrespective of whether the convict has engaged a counsel or not.

Prisoners are very often unable to communicate to the outside world

1. In M.H. Hoskot (supra), it has been also recognised that procedural safeguards are the indispensable essence of liberty. Prisoners being confined to the four walls of jail are very often incommunicado with the outside world. This has been reiterated by this Court in several judgments.

Prison authorities are obliged to communicate the surrender of convict to the court

1. In this case, as is clear from the facts while the factum of surrender happened, it is only in the communication of the surrender that there was a lapse.

2. 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 Chamber Judge/Court may depending on the information received, thereafter pass such orders as are deemed fit.

Liberty to the relatives to prefer appeal under section 394 Cr.P.C

1. It appears from the record that the petitioners, even though in custody, were not apprised by the jail authorities of the peremptory dismissal of the Special Leave Petition(s). If even the peremptory dismissal of the Special Leave Petitions had been communicated to the petitioners herein by the jail authorities, they perhaps would have taken remedial steps without loss of time. The petition of petitioner No.1– Sanjit Saha has been restored. The petition insofar as petitioner No.2 – Anil Saha has abated. Liberty under Section 394 CrPC and/or principle analogous thereto for the relatives is reserved.

Guidelines given if surrender proof is not filed

1. Recurrence of the unfortunate scenario, that has happened in the present case, ought to be prevented. One option could be for the Registry in cases where surrender proof is not filed by the counsel and there is no information as to whether the convict has surrendered or not surrendered, (in spite of time being given to surrender), to call for a report from the Trial Judge. Additionally, the Judge In-Chambers can appoint an amicus curiae in cases where counsel is absent to coordinate with the Registry and the trial Court to find out about the actual state of affairs with regard to the factum of surrender.

Jail authorities are required to upload the surrender and custody particulars in web portal

1. The long-term option would be in the digital era to evolve a mechanism whereby, the Jail authorities are vested with an obligation to upload on a customised web portal, the surrender and custody particulars of the convicts with the corresponding numbers of the Criminal Appeals/Special Leave Petitions. This will ensure that on a click of a button, all up to date information are available for the Court.

Sanjit Saha & Anr. …Petitioner (s) Versus The State of West Bengal …Respondent(s) – SPECIAL LEAVE PETITION (Crl.) D. NO. 46699 OF 2018 – October 9, 2023 – 2023 INSC 1085

https://main.sci.gov.in/supremecourt/2018/46699/46699_2018_13_1723_47469_Judgement_09-Oct-2023.pdf

46699_2018_13_1723_47469_Judgement_09-Oct-2023

Further study

Website: Whether judgments or orders uploaded in the court website (judicial website) can be downloaded and presented for reference before authorities?

Resource: sentencing policy