K RENGANADHA REDDIAR Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) This is an application filed by the respondent in Criminal Appeal 109 of 1966 who was convicted by this court under S.16(1) read with S.7(1) and proviso (ii) of S.16(1) of the Prevention of Food Adulteration Act and sentenced to undergo S. I. for one week and to pay a fine of Rs. 950/-. A certificate of fitness to appeal to the Supreme Court has also been issued to him under Art.134(1)(c) of the Constitution. Now the petitioner's prayer is that the sentence may be suspended and he be enlarged on bail. The application is preferred under S.426 (2-B) and 561-A of the Code of Criminal Procedure. Neither under Art.134(1)(c) of the Constitution nor under S.426 (2-B) or S.561-A of the Code of Criminal Procedure, the petitioner is entitled to ask for the suspension of the sentence. S.426 (2-B) provides for the suspension of sentence and admission of the accused to bail in cases where 'special leave to appeal to the Supreme Court' has been granted by the Supreme Court and does not take in, cases in which certificate of fitness to appeal to the Supreme Court has been granted by the High Court under Art.134 (1) (c) of the Constitution. The Allahabad High Court relying on a decision of the Privy Council in AIR 1945 PC. 94 has observed as follows in Gore Lal v. State (AIR 1958 All. 667):
"The High Court has no statutory or inherent power to grant bail to or suspend the execution of the sentence of, a person whose conviction and sentence it has maintained, except where that person has been granted special leave to appeal under Art.136 of the Constitution, and in no other case. Indeed, except for the purpose of granting a certificate under Art.132(1) or Art.134(1)(c) of the Constitution, or granting bail or suspending the sentence under S.426(2-B) of the Code the High Court becomes functus officio. Any other view would result, in defeating the ends of justice in certain circumstances and in an alteration by the High Court of its judgment contrary to S.369 of the Code."
To the same effect is the observation of the Himachal Pradesh J. C's Court in Kalwati v. The State (1952 (Vol. 53) CriLJ 1461).
The learned Judge observed in that case:
"Bail can be granted to a convicted person by the High Court under S.426 (2B), Criminal P. C. only where the Supreme Court has already granted him special leave to appeal to that court and not before or merely upon the certificate of the High Court under Art.132(1) or Art.134(1)(c), Constitution of India.
A reference to the provisions of Art.132, 134 and 136 of the Constitution will show that special leave is quite different from the certificate of fitness. The former can only be granted by the Supreme Court under Art.136, and all that a High Court can do is to grant a certificate under Art.132(1) or under Art.134(1)(c)."
(2.) A Single Bench decision of the Andhra Pradesh High Court has sounded a different note in In re Madanlal (AIR 1950 A. P 622).
Krishna Rao, J., has observed in that case:
"The expression "special leave to appeal" in S 426(2B) Criminal PC. should be given its ordinary and natural meaning and should not be construed as a term of art. It includes certificate of fitness granted by the High Court under Art.134(1)(c) and should not be confined only to special leave to appeal granted by the Supreme Court under Art.132(2) or Art.136 of the Constitution."
Hence, where a convicted person has been permitted to appeal to the Supreme Court from the sentence of a High Court on special grounds an application under S.426(2B) Cr. PC. is maintainable."
We do not find our way to subscribe ourselves to this view.
(3.) It was argued on behalf of the petitioner that the words "special leave to appeal to the Supreme Court" in S.426(2B) of the Code signify the same thing as the grant of a certificate by the High Court to the effect that the case is a fit one for appeal to the Supreme Court. But a careful reading of the provisions of Art.132, 134 and 136 of the Constitution would show that 'special leave' is quite different from 'certificate of fitness' the former to be dealt with by the Supreme Court and the latter by the High Court. So, only in cases where 'leave to appeal' has been granted by the Supreme Court, that the High Court will be in order, in suspending the sentence and release the accused on bail. The following observation in Sohoni's The Code of Criminal Procedure, 16th Edn. Vol. III, p. 2637 is instructive:
"There appears to be no good ground why the High Court should have power to grant bail, only in cases where leave has been granted by the Supreme Court under Art.132 or 136 of the Constitution or by the High Court on special grounds under Art.132 or 134(1)(c) and not in cases where appeal lies to the Supreme Court under Art.134(1)(c) and (b) of the Constitution. Under Art.132(1) and 134(1)(c) and (b) special grounds on which appeal shall lie to the Supreme Court are specified in the Constitution itself, while Art.134(1)(c) gives the residuary power to the High Courts if there are any other special grounds for certifying the case as a fit one for appeal to the Supreme Court."
Unless power is specifically conferred on the High Court to grant bail in a case covered by Art.134(1)(c) of the Constitution the sentence cannot be suspended and bail granted to the accused.;
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