AMRATLAL GURDIAL JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application raises a question of construction of sub-sec. (2A) of sec. 426 of the Code of Criminal Procedure 1898 (hereinafter referred to as the Code ) in respect of the powers of the High Court if any to order a person to whom a certificate under Article 134 has not been granted by the High Court to be released on bail in order to enable him to move the Supreme Court for special leave to appeal under Article 136 of the Constitution. The applicants who were original accused Nos. 1 and 3 were convicted by the learned Judicial Magistrate First Class at Broach of offences punishable under sec. 135(b) of the customs Act 1962 and sec. 8 read with sec. 85 of the Gold (Control) Act 1968 and were sentenced to different terms of imprisonment a d fine. Their appeal to the Sessions Court against this order of conviction and sentence failed; and therefore they came to this Court in revision. That was Criminal Revision Application No. 493 3f 1971. That application came for hearing before me on July 12 1972 and the same was dismissed so far as the present applicants were concerned. On July 17 1972 the applicants sought stay of the execution of the warrant of arrest in order to enable them to move this Court for a certificate under Article 134 of the Constitution. On that application I passed an order staying execution of the warrant of arrest till August 7 1972 Meanwhile petition of both the petitioners for certificate under Article 134 came up for appropriate orders before myself and Mr. Justice M. P. Thakkar on August 2 1972 We refused the certificate on that day. Therefore this application is now filed praying that time granted to the petitioners for surrendering to the authorities by my order dated 17-7-1972 may be extended by two weeks. On this petition question arose whether in a case like this where a certificate has been refused by a Division Bench of this High Court the High Court has power to release the petitioners on bail under sub-sec. (2A) of sec. 426 of the Code till the petitioners lodge an application for special leave to appeal to the Supreme Court under Article 136 of the Constitution. Mr. R. D. Vyas the learned advocate for the petitioners made it clear at the time of arguments that he is confining his claim to the relief prayed for in the present petition to sub-sec. (2A) of sec. 426 only; and that obviously sub-sec. (2B) of sec. 426 will not apply to the present case because the certificate has been refused by the High Court.

(2.) Before proceeding to judgment I had enquired of Mr. Vyas whether he would like to take a decision from this Court on the scope of subsec. (2A) of sec. 426 of the Code which would be a precedent requiring consideration in future. He it appears was inclined to take a decision of this Court.

(3.) For the purpose of determining this question it has been assumed by me that an application of this nature purporting to be under subsec. (2A) of sec. 426 of the Code can be dealt with by a Single Judge notwithstanding the fact that a certificate under Article 134 has been refused by the Division Bench. It is on that assumption that I proceed to decide the question raised before me.