JAIRAM DAS Vs. EMPEROR

JUDGEMENT

(1.) THIS appeal raises an important question, viz. whether a High Court in India has power to grant bail to a person who has been convicted and sentenced to imprisonment, and to whom His Majesty in Council has given special leave to appeal against his conviction or sentence.

(2.) THE questions which arise for consideration in such a case are of such a nature that they can only, their Lordships think, be properly dealt with by some authority in India possessing either knowledge of the relevant facts, or the means of acquiring that knowledge; but whether a High Court in India has power to grant bail in the circumstances indicated is a matter upon which divers views have been expressed in the Courts in India, and which comes before the Board for the first time, in the following circumstances: THE appellants were convicted under Section 120b read with Section 420 of the Indian Penal Code, and sentenced to terms of rigorous imprisonment. On appeal, the High Court of Lahore upheld the convictions but altered the sentences. THE appellants, having obtained special leave from His Majesty in Council to appeal from the judgments of the High Court, applied to the High Court of Lahore to be released on bail. THEir application was dismissed. From that dismissal they now appeal by special leave to His Majesty in Council. THE application was dismissed upon the ground that the Judicial Committee had given no direction that an application for bail should be made to the High Court.2.It will be convenient at the outset to review briefly the decisions in India.

(3.) IN February, 1923, the case of Tulsi Telini v. Emperor (1923) I. L. R. 50 Cal. 585 came before the High Court of Calcutta. A convicted person applied under Section 498 of the Code for a stay of execution of the sentence pending the hearing of a proposed application to His Majesty in Council for special leave to appeal. It was decided that the High Court had no jurisdiction under Section 498. The Chief Justice indicated that the High Court might have had jurisdiction by reason of Clause 41 of the Court's Letters Patent if the case had come within that clause, which it did not. Richardson J. distinguished the Madras case on the ground that in that case special leave to appeal had already been obtained. He was of opinion that the Court had no jurisdiction under Section 496 to grant bail pending an application for special leave to appeal. The Court was functus officio, and had no seisin of the case. Nor had the Court any inherent jurisdiction. He pointed out however that it was open to the Local Government to suspend the sentence under Section 401 of the Code.