What is the process for filing a Special Leave Petition? (civil and criminal)

By Meher Sunil Dabrai

Introduction

A Special leave petition is when an aggrieved party seeks special permission to be heard before the Supreme Court against the judgement given by an appellate Court, generally the Supreme Court itself or Tribunals.

It must be noted that the special leave is not an appeal in itself but is a petition filed for an appeal. It is to the discretion of the Supreme Court to allow the petition to be heard if it deems it fir to be heard. If the Supreme Court grants such a leave, the Special Leave Petition automatically gets converted into an appeal.

Hence, the Supreme Court grants the “Leave” to convert the petition into an “Appeal”. Once this takes place, the matter is heard and the judgement is passed accordingly.

The provisions for filing a Special Leave Petition are given under Articles 132, 133, 134, 135 and 136 of the Constitution of India, 1950.

The Supreme Court has been bestowed with the veto powers of interpretation of the Constitution of India as it is considered as the supreme guardian of the Constitution of India, 1950.

When can a Special Leave be filed?

A Special leave can be filed where a gross injustice has been made or a considerable question of law has been observed. It is also pertinent to note that the authority whose judgement or order is being appealed against in a Special Leave Petition must fall into the definition of a Court or tribunal.

Therefore, it is the duty of the person filing the petition to check the jurisdiction before filing it.

A Special leave petition should be filed against any judgement of the Supreme Court or any other inferior Court within 90 days from the date of judgement or it may also be filed within 60 days against the order of the Supreme Court refusing to grant a fitness certificate for the appeal.[1]

Procedure for filing a special leave petition in a civil proceeding

The procedure for filing a special leave petition as per Order XXI of the Supreme Court Rules 2013 is given below:

  • The Special Leave Petition has to be filed along with all the facts and relevant details and has to be filed with the registrar along with certified copies of the judgements or orders accompanying such a petition as stated under Order XXI Rule 1. A party to a special leave petition is required to furnish his postal address as well as his email address which is then treated as his registered address for service of all the documents that need to be duly served to him during the pendency of the suit. In case a party does not have an email address, a statement to that effect needs to be made at the time of filing itself.
  • In case of a delay in the filing, a condonation of delay is also to be filed along with the Special Leave Petition. It is important for the parties filing the special leave to note that merely filing the petition does not automatically prevent the execution of the decree or order appealed against. Although, the Court has the power to order a stay on such execution if it deems it fit after carefully examining the matter. The rules clearly specify that the special leave shall be filed in the Court subject to the provisions of Sections 4, 5, 12 and 14 of the Limitation Act which specifies that the special leave has to be lodged within 60 days from the date of the order of the refusal and in any case within 90 days from the date of the judgement or order sought to be appealed from.
  • When a period of limitation is claimed from the date of refusal of a certificate under Article 134A of the Constitution which is a certificate to appeal to the Supreme Court for a civil matter that comes under the purview of Article 132 or 133 of the Constitution it is not necessary to file the order refusing the certificate but an affidavit with all the necessary details such as the date of the order refusing the certificate, the judgement for being challenged etc. the most important detail to be mentioned in this affidavit is whether the application for the certificate was dismissed on the grounds that it was filed out of the time limitation.
  • The Supreme Court provides for a form number 28 to be filed before the court for filing a special leave petition. The details and other requirements for this form have been prescribed under Order XXI Rule 3 of the Supreme Court Rules 2013. In case a prayer is to be made with regard to interim reliefs, it should be incorporated in the form number 28 and no separate interim application needs to be made.
  • A list of dates in chronological order with relevant material facts or events pertaining to each of them shall be furnished. The Special Leave Petitions shall be confined only to the pleadings before the Court/ Tribunal whose order is challenged. The procedure and the relevant details for filing this form are clearly specified in Rule 3(1)(a) of the Supreme Court rules 2013.
  • Rule 3(e) states that very petition shall be supported by the affidavit of the petitioners or one of the petitioners or by any person authorized by the petitioner in which the deponent shall state that the facts stated in the in the petition are true and the statement, dates and facts furnished along with the Special Leave Petition are true to his knowledge, information and belief.

The documents and relevant papers of the Special Leave Petition shall be arranged in the following order as prescribed under Rule 3(f):

  • List of dates in terms of clause (b) of sub-rule (1).
  • Certified copies of judgement and order against which the leave to appeal is sought for.
  • The special leave petition in the prescribed form no. 28
  • Appendix containing relevant provisions of the Constitution, statutes, ordinances, rules, regulations, bye laws, orders etc.
  • Annexures if any filed along with the Special Leave Petition which shall be page numbered.
  • If a notice is ordered on the special leave petition, the petitioner should take steps to serve the notice to the respondent. In case of a Special Leave Petition against an interlocutory order or in any proceeding pending in the Court, the notice may be served to the advocate appearing for the party in the Court/ Tribunal where the matter was pending.
  • Every petition must contain a statement as to whether the petitioner had filed any special leave to appeal against the impugned judgement or order earlier and with what result which must be duly supported with an affidavit of the petitioner and his Parolkar only.
  • The Special leave petition must contain a statement mentioning whether the matter was contested in the court appealed from along with the full names and addresses of all the contesting parties.
  • The Special Leave Petition shall contain a statement as to whether letters patent appeal or writ appeal lies against the impugned order and whether the remedy has been availed.

It is pertinent to note that the petitioner is required to file at least three spare sets of the special leave petition along with the adjoining documents and accompanying papers at the time of filing.

Procedure for filing a Special Leave Petition in a criminal proceeding

The procedure for filing a special leave petition in a criminal matter is quite similar to the filing procedure followed in civil matters with a few minor changes. The major facts such as the limitation period and the constitutional provisions followed remain the same.

The procedure for filing a special leave petition in criminal matters is described under Order XXII of the Supreme Court Rules. The order states that the provisions contained in Rule 3(1) of Order XXI shall be followed for filing a Special Leave Petition in criminal matters as well.

The procedure for filing a special leave petition in a criminal proceeding has been explained below:

  • As per Rule 2(2) in case of filing a Special Leave Petition in a criminal matter, the petition will not be entertained by the registry unless it contains a statement as to whether the petitioner had filed any previous petition for special leave to appeal against the impugned judgement or order in the past and if so then the results of the same need to be filed with the registry along with a supporting affidavit of the petitioner or his Parolkar only. Nobody else is allowed to submit an affidavit on behalf of the petitioner in a criminal matter.
  • Further, the Special Leave Petition shall be confined only to the pleadings before the Court or tribunal whose order the petitioner wishes to challenge. All the other supporting documents relied upon in the other proceedings should also be attached at the time of filing. Similar to the filing of a civil special leave petition, no additional grounds or documents can be relied upon without seeking the permission of the Court to do the same. At the time of seeking such permission, it is important to mention the reason as to why these grounds or documents were not brought to the notice of the Court during the previous proceeding.
  • Rule 3 states that the petition shall be accompanied by the certified copy of the judgement or order appealed from and an affidavit in support of the statement of facts contained in the petition.
  • According to Rule 4 the Registry does not accept any annexures to the petition unless such annexures are certified copies of the documents which have already formed a part of the Court records or records of the tribunal sought to be appealed from. The uncertified copies of documents may be accepted only if they are affirmed as true copies upon an affidavit.
  • Rule 5 states that in case a petitioner has been sentenced to a term of imprisonment, the petition of appeal shall state whether the petitioner has surrendered. If a petitioner states that he has surrendered, then he must file a certified copy of the order of the Court in which he has surrendered or a certificate from a competent officer from the jail in which he is undergoing his sentence. In case a petitioner has not surrendered, the petition of appeal shall not be accepted by the Registry unless an application for seeking exemption from surrendering has been filed along with it. In a situation like this, only the application is posted for hearing before the Court in the first instance and the rest of the appeal is heard after passing orders on the application.
  • Rule 6 states that in criminal matters, the limitation period also applies to the respondent. The respondent in such matters is at a liberty to file his objections within 30 days from the date of receipt of the notice of the Court and not less than 2 weeks before the date that has been appointed for the hearing, whichever is earlier.
  • If a petitioner is in jail and cannot be represented by an advocate on record, Rule 7(1) provides that he may present his petition for special leave to appeal together with the certified copy of the judgement and any written argument that he may desire to be filed with the officer-in-charge of the jail where he is held. The officer shall then forward the same to the registrar of the Court who will then call for the relevant document from the appropriate Court or tribunal for filing a special leave to appeal.
  • Rule 7(2) states that as soon as the registrar receives these documents, he arranges a direct engagement of an advocate from the panel of the Supreme Court Legal Services Committee or assigns a Panel Advocates at the cost of the state and place the petition along with the complete set of documents before the Court for a hearing. The fee of the advocate that is engaged in such a manner is fixed by the Chief Justice from time to time. Such fees is also later borne by the state within three months from the date of his presenting before it his claim for the fees supported by his certificate of appearance provided to him at the time of his appearance in the matter.

Case Laws

Laxmi and Co. v. Anand R Deshpande[2]

Held

The Court takes notice of subsequent evets while hearing appeals under Article 136 to shorten litigation, to preserve the rights of both parties and sub serve the ends of justice.

Pritam Singh v. State[3]

Held

The Supreme Court laid down the principles by which it would exercise its jurisdiction in granting special leave under Article 136. The Court observed that the wide discretionary power which the court is vested under it was to be exercised sparingly and in exceptional cases only.

The Court observed that a standard would have to be maintained about granting special leave for a wide range of matters which could come up before it under the purview of Article 136. The Court has the power to grant special leave in civil, criminal and income tax cases which have come up before different kinds of tribunals and in a variety of other cases.

The only uniform standard to be maintained by the Court is that the Court should grant special leave only in cases where prima facie special circumstances are shown to exist.

Rajendra Kumar v. State [4]

The Supreme Court heard a special leave petition from the decision of the Chief Judicial Magistrate. The appellant did not go to the High Court but went straight to the Supreme Court. The Supreme Court agreed to make an exception by accepting the Special Leave Petition.

However, the Supreme Court observed that the Chief Judicial Magistrate does not come under the purview of a Tribunal and ordinarily such a petition would not be entertained.

Sanwat Singh v. State of Rajasthan[5]

Facts-

There had been a riot between two rival factions resulting n injuries to many and the fatality of two farmers. The Sessions court acquitted the convicts but on appealing to the High court, some of them were found guilty and were sentenced to various terms of imprisonment. One of the convicts applied for special leave against the conviction and the sentence given to him by the High Court.

The counsel for the appellants argued that the High Court interfered with the findings of the Sessions court which in turn was a departure from the principles of Privy Council which had been referred.

Held

The Supreme Court ruled that the Article 136 vests a discretionary power which cannot be exhaustively defined but does not permit interference unless substantial and grave injustice has been caused and the appeal was dismissed on these grounds.

Kunhayammed v. State of Kerela[6]

Held

Mere dismissal of the Special Leave Petition does not mean that there is res judicata. It only means that the case was not fit for the grant of a Special Leave Petition and it is open to the aggrieved party to approach the concerned court for review under Article 226.

The Court then has the choice to grant the Special Leave Petition and if the court disallows this in its findings then the Appellate jurisdiction of the Court does not come into existence.

Conclusion

The Special Leave Petition is a huge instrument of the dispensation of justice from the Supreme Court in the country. The Special Leave Petition is of an inherent nature which makes it a very fluid and flexible provision.

Consecutively many leave petitions tend to choke the Supreme Court but many may be rejected at the admissions stage itself which manages to maintain a balance.

References

  1. Sections 4, 5, 12 and 14 of the Limitation Act
  2. Laxmi & Co. v Anand R Deshpande, (AIR 1973, SC 171)
  3. Pritam Singh v. State AIR 169 (1950)
  4. Rajendra Kumar v. State AIR 1966
  5. Sanwat Singh v. State of Rajasthan (G12) AIR 1961 SC
  6. Kunhayammed versus State of Kerela AIR 2000 SC 2587

Related Post