Sanjit Saha vs State of West Bengal 2023 INSC 1085 – SC Rules -Convict surrendering

Supreme Court Rules, 2013; Order XXII Rule 5 ; Order V Rule 2(35)- A convict has to surrender to the sentence before filing the Special Leave Petition unless an application for exemption from surrendering is filed – the Judge In-chambers has the power to exempt from surrendering or to refuse exemption. In the event of refusal of exemption and in the event of not surrendering, the matter is placed before the Chamber Judge for non-prosecution -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 – 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 – The Chamber Judge/Court may depending on the information received, thereafter pass such orders as are deemed fit- Suggestions (1) 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. (2) 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. (Para 15-30)

Criminal Trial – 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] – In the absence of counsel, the case should not be 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] – 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. (Para 20)

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