BALASUNDARA PAVALAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner herein was the fourth accused in S. C. No. 35 of 1950 on the file of the Court of Session of the West Tanjore division and he was convicted under Section 401, Penal Code, and sentenced to three years rigorous imprisonment by the learned Sessions Judge. Criminal App. No. 494 of 1950 is against the said conviction and sentence. This appeal came on for admission before our learned brother Panchapagesa Sastri J. on 28-7-1950 and notice has been issued to the Public Prosecutor under Section 422, Criminal P. C. Along with the appeal petition, Cr. M. P. No. 1548 of 1950 had also been preferred by the petitioner praying that he might be released on bail pending disposal of the appeal. The learned Judge rejected the bail application and refused to enlarge the petitioner on bail. The present application has been presented on the 8th of this month praying that the petitioner may be enlarged on bail pending the disposal of the appeal. Criminal M. P. No. 1548 of 1950 was unsupported by any affidavit setting forth the reasons which might induce the Court to release the petitioner on bail. The present application is based upon an affidavit, wherein various reasons are alleged as to why the petitioner should not be kept in custody pending disposal of the appeal. When it came on before our learned brother Somasundaram J. on 11-8-1950 he referred the matter to this Bench because in his opinion it is doubtful whether the Court has jurisdiction to grant bail on a second application when an earlier application for the same relief had been refused. That is how the petition comes up before this Bench.

(2.) According to the learned Judge, before conviction and during the enquiry or trial an accused person can file successive applications for bail since there is no prohibition against the filing of such applications. The provisions of law governing the applications for bail pending trial or enquiry are contained in Sections 497 and 498, Criminal P. C. whereas the power under which an appellate Court can release an appellant on bail pending disposal of his appeal is found in Section 426, Criminal P. C. The learned Judge also referred to a decision of this Court in Subrahmanya Iyer v. Emperor, 19 M. L. J. 478 : (11 Cr. L. J. 279) where the view has been expressed that an order on an application refusing bail by this Court pending the trial of an accused person in a lower Court is not a "judgment" within the meaning of C. 15 of the Letters Patent. The learned Judge also opined that such an order would not be a judgment under Section 369, Criminal P. C. Such being the case, in the opinion of the learned Judge Section 369, Criminal P. C., would not be a bar to a fresh application. The learned Judge did not express any opinion as to whether a subsequent application for bail is an attempt to review a previous order and as this is a matter of importance the reference has been made to this Bench.

(3.) Chapter 39, Criminal P. C., deals with the practice and procedure to be followed in the matter of bail. Section 496, Criminal P. C., lays down in what cases bail can be taken; Section 497 sets out when bail may be taken in casea of non-bailable offences; and Section 498 relates to the power to direct admission to bail or reduction of bail as well as the power of the High Court to direct any peraon to be admitted to bail, in any caae. Sections 499 to 502 deal with the procedure to be followed after a Court has directed the release of an accused person on bail. Section 426 occurs in Chap. 31 of the Code relating to appeals and its provisions empower an appellate Court to suspend the sentence or release an appellant on bail. Section 426 Clause (1) states that pending an appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended, and, if he is in confinement, that he be released on bail or on his own bond. Clause (2) empowers the High Court to release a convicted person on bail even if no appeal is pending in the High Court but an appeal is pending before a Court subordinate to it. It is now firmly well established by a long course of decision that though Section 426 (1) now enables an appellate Court to release a convicted person on bail for reasons to be recorded by it in writing, so far as the High Court is concerned the power to grant bail is much wider in scope than what is contained in that section, because the second part of Section 498 lays down that the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail. This means that the restrictions contained in Section 497 are not applicable to a High Court or Court of Session, which latter Courts have the power, unfettered by the restrictions contained in Section 497, to release an accused person, whether convicted or pending trial, on bail. It is not disputed by the learned Public Prosecutor that even during the pendency of an appeal, in the High Court, the Power to release the appellant on bail need not be confined to the more restrictive provisions of Section 426 (1) but can be exercised in accordance with the wide language of the second part of Section 498.