Sarkaria, J. - (1.) The common question referred to the Constitution Bench in these two cases is:Whether the Supreme Court while granting Special Leave to appeal under Article 136 of the Constitution, against an order of acquittal on a capital charge, has the power to issue a non bailable warrant for the arrest and committal to prison of the accused-respondent who had been acquitted by the High Court
(2.) Mr. R. K. Garg. Counsel for the accused-respondents herein, contends that while the Legislature has, in its wisdom, empowered the High Court to cause an accused person to be arrested and committed to prison pending the disposal of the appeal against acquittal, no such power has been conferred on the Supreme Court by the Code or any other statute. According to Counsel, in the absence of a specific statutory provision the inherent power of the Court to do complete justice under the Code or even under Article 142 of the Constitution cannot be invoked to order deprivation of the liberty of a person who has been found innocent and acquitted by the High Court on all the charges against him because such an order would be violative of Articles 14, 19 (1) (a) to (g) and 21 of the Constitution. It is maintained that even after the grant of special leave to appeal under Article 136 against an order of acquittal passed by the High Court the acquittal and the findings on which it is based, remain fully in force during the pendency of appeal by the State. It is contended that once it is ensured that the accused respondent will be available to submit himself to the final order of this Court that may be passed in the appeal under Article 136, the inherent powers of the Court under the Code or under Article 142 exhaust themselves.
(3.) In support of his contentions, Counsel has referred to State of U. P. v. Mohamed Nooh; (1958) SCR 595 and A. K. Gopalan v. State of Madras, (1950) SCR 88 ; Jairam Das v. King Emperor, 72 Ind App 120 Sheo Swarup v. The King Emperor 61 Ind App 398 and M. G. Agarwal v. State of Maharashtra, (1963) 2 SCR 405 Prem Chand Garg v. Excise Commr. U. P. Allahabad, (1963) 1 Suppl. SCR 885;