R.S.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 orders 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. Mohammad Nooh; and A. K. Gopalan v. State of Madras; Lala Jairam Das v. King Emperor; Sheo Swarup v. King Emperor; M. G. Agarwal v. State of Maharashtra Prem Chand Garg v. Excise Commissioner, U. P., Allahabad.

(4) AS against this, Mr. Uniyal and Mr. 0. P. Rana, submit that by virtue of Article 142 read with Article 136 of the Constitution, this court pending disposal of an appeal against an order of acquittal, is competent to exercise the same powers which are conferred on the High court by the Code of Criminal Procedure. In support of this contention, Mr. Rana has referred to State of U. P. v. Deoman Upadhyaya; Abdul Rehman Mahomed Yusuf v. Mahomed Haji Ahmad Agbotwala.

(5) WE are unable to accept the contentions advanced by Mr. Garg.

(6) TO appreciate the point involved, it will be useful to have a look at the provisions of S. 427 of the Code of Criminal Procedure, 1898 and its historical perspective. This S. (which has been re-enacted as S. 390 of the new Code of 1973) provides : When an appeal is presented under S. 411A, Ss. (2), or S. 417, the High court may issue a warrant directing that the accused be arrested and brought before it or any subordinate court, and the court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.

(7) IT may be noted that this provision was for the first time enacted in the Code of 1882. But even before its enactment, the High court as a matter of judicial practice, had the power, pending the appeal against an order of acquittal, to secure the attendance of the accused-respondent by bailable or non-bailahle warrants. As pointed out by Panigrahi, C.J. in State v. Badapalli Adi what was formerly the judicial practice received statutory recognition in the year 1882 when this provision in S. 427, Criminal Procedure Code, was introduced. In Empress of India v. Mangn (which was decided several years before the addition of this provision in the Code), a full bench of Allahabad High court held, that the High court has the power to cause the arrest and detention of the accused in prison, pend