K RENGANADHA REDDIAR Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed by the respondent in Criminal Appeal 109 of 1966 who was convicted by this court under S.16(1) read with S.7(1) and proviso (ii) of S.16(1) of the Prevention of Food Adulteration Act and sentenced to undergo S. I. for one week and to pay a fine of Rs. 950/-. A certificate of fitness to appeal to the Supreme Court has also been issued to him under Art.134(1)(c) of the Constitution. Now the petitioner's prayer is that the sentence may be suspended and he be enlarged on bail. The application is preferred under S.426 (2-B) and 561-A of the Code of Criminal Procedure. Neither under Art.134(1)(c) of the Constitution nor under S.426 (2-B) or S.561-A of the Code of Criminal Procedure, the petitioner is entitled to ask for the suspension of the sentence. S.426 (2-B) provides for the suspension of sentence and admission of the accused to bail in cases where 'special leave to appeal to the Supreme Court' has been granted by the Supreme Court and does not take in, cases in which certificate of fitness to appeal to the Supreme Court has been granted by the High Court under Art.134 (1) (c) of the Constitution. The Allahabad High Court relying on a decision of the Privy Council in AIR 1945 PC. 94 has observed as follows in Gore Lal v. State (AIR 1958 All. 667):

(2.) A Single Bench decision of the Andhra Pradesh High Court has sounded a different note in In re Madanlal (AIR 1950 A. P 622).

(3.) It was argued on behalf of the petitioner that the words "special leave to appeal to the Supreme Court" in S.426(2B) of the Code signify the same thing as the grant of a certificate by the High Court to the effect that the case is a fit one for appeal to the Supreme Court. But a careful reading of the provisions of Art.132, 134 and 136 of the Constitution would show that 'special leave' is quite different from 'certificate of fitness' the former to be dealt with by the Supreme Court and the latter by the High Court. So, only in cases where 'leave to appeal' has been granted by the Supreme Court, that the High Court will be in order, in suspending the sentence and release the accused on bail. The following observation in Sohoni's The Code of Criminal Procedure, 16th Edn. Vol. III, p. 2637 is instructive: