LOLA 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. 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 diverse 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 S. 120B read with S. 420, 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. It will be convenient at the outset to review briefly the decisions in India. In the year 1900, the High Court of Madras held (in a case in which special leave to appeal had been granted) that it had power to make an order for release on bail pending the decision of the appeal: see 24 Mad. 161.1On the petition for special leave, and application for bail had also been made, when the Judicial Committee stated that any such application must be dealt with by the High Court. The case was argued before the High Court on the footing that the High Court could act under S. 498, Criminal PC, (herein referred to as the Code). The judgment simply states : "In our opinion this Court has jurisdiction to make an order in this case releasing the accused on bail pending the decision of the Privy Council."

(2.) In the year 1908 in 15 P.R.Cr. 1908 at p. 502the Chief Court, which had previously dismissed an appeal from their convictions by the accused persons, dismissed an application by them to be released on bail pending the hearing of a petition by them to His Majesty in Council for special leave to appeal. The application seems to have been based on S. 498 of the Code: but it was held that S. 498 "does not refer to a case where the Court is functus officio, but refers to cases where the Court has still some power left as regards the sentence of the accused," and that the Court had no power to release the accused on bail. In February 1923, the case in 50 Cal. 5853came before the High Court of Calcutta. A convicted person applied under S. 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 S. 498. The Chief Justice indicated that the High Court might have had jurisdiction by reason of Cl. (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 ease special leave to appeal had already been obtained. He was of opinion that the Court had no jurisdiction under S. 498 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 S. 401 of the Code. On 2 April, 1923, the Criminal P. C. (Amendment) Act, 1923, came into force by which there was added to the Code S. 561A which runs thus: "561 A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

(3.) In 1926, in 49 ALL 2474the High Court of Allahabad held that "a High Court has certainly inherent jurisdiction to stay execution of its own order when the ends of justice require it." It refused to grant bail at that stage because special leave to appeal had not yet been obtained; a petition had been lodged but had not been heard by the Judicial Committee. The applicant, however, was told to apply again when leave to appeal had been granted. In 1936 another case came before the High Court of Calcutta, viz., ILR (1937) 1 Cal. 464,5in which it was held that after disposal of a criminal appeal the High Court is functus officio and has no seisin of the case, and cannot grant bail to a convicted person before leave to appeal has been granted by His Majesty in Council. The decisions in 24 Mad. 1611and 49 ALL. 2474were distinguished on the ground that they were decisions given on the footing that leave to appeal had been or would be obtained. The application for bail had been refused by the High Court of Calcutta, who gave their reasons at a later date. Cunliffe J. in his judgment mentions the fact that in the interval a suspension order had been made by the Local Government under S. 401. Henderson J. (differing from the view expressed in the Allahabad case) was of opinion that S. 561A had no reference to bail, which was a matter specifically provided for by the Code itself. It appears (from the judgment of Blacker J. in a later case) that, special leave to appeal having been subsequently obtained, a Single Bench Judge did in fact grant bail to Babu Lal Chokhani.