- (1.) This is an application for the suspension of a sentence of imprisonment and for ball, made Under Sections 426 (2 B), 498 and 561 A of the Cr.PC in the following circumstances. The petitioner was the 1st accused in Sessions case No. 8 of 1958 on the file of the Court of Session, bad and was convicted and sentenced by the Sessions ; Judge to rigorous imprisonment for 5 years for an offence punishable Under Section 326 read with Section 34 IPC He preferred an appeal to this Court against the conviction and sentence and was released on bail Under Section 426(1) pending the appeal. On 23-4-1959, the Appeal was dismissed and on ~v 80-11-1959, he was granted a certificate under Article 134(1) (c) of the Constitution for a further appeal to the Supreme Court. Thereafter he lodged his appeal in the Supreme Court, which was numbered as Criminal Appeal No. 16 of 1960 and made the present application on 25 2 1960 to this Court. He states that he hag not moved the Supreme Court for bail and prays that he may be continued on bail pending disposal of the appeal to the Supreme Court.
(2.) In Jairam Das v. Emperor A.I.R. 1945 PC 94, the Judicial Committee held that Section 498 Cr.P. C. : refers only to accused persons and not to persons who have been convicted; and that a High Court has no inherent power Under Section 561 A to grant bail to convicted persons. The application is therefore pressed on the ground that the petitioner's case comes Under Section 426(2 B), which is m the following terms: Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence, or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail. The first question that arises for consideration isi whether the issue of a certificate under Article 134(l)(c) of the Constitution would be a grant of Special leave to appeal to the Supreme Court.
(3.) Appeals on criminal matters may bo taken to the Supreme Court under Articles 132, 134 and 136 of the Constitution or under Sub-section (4) of Section 411 A of the Cr.PC. The expression "Special " leave to appeal" occurs in them only in Article 132 (2) and Article 136 and in both instances, the special leave is granted by the Supreme Court. The contention of the learned Public Prosecutor is that the reference in Section 426(2 B) is only to the special leave so granted. On the other hand, the contention of the learned Counsel for tile petitioner is that the expression "special leave" in the context of Section 426 (2 B) includes certificates of fitness granted by a High Court under Article 134 (1) (c).;