Judgement

Appeal (No. 87 of 1944), by special leave, from a judgment and order of the High Court (August 21, 1944) which had dismissed an application by the present appellants to be released on bail pending the decision of His Majesty in Council in their appeal, by special leave, from the judgment and order of that High Court (April 26, 1944) whereby the court upheld their conviction of conspiracy to cheat and of cheating the Government under s. 120B read with s. 420 of the Indian Penal Code.

The High Court (Teja Singh J.), on August 9, 1944, held that the correct view was that taken by Blacker J. in Bawa Faqir Singh v. Emperor (( 1938) A. I. R. (Lah.) 697.), that once a High Court has passed an order in a criminal appeal it becomes functus officio and has no seisin of the case, but that seisin may be revived if His Majesty in Council grants special leave to appeal with a direction to the High Court to entertain an application for bail. The High Court accordingly adjourned the hearing of the applica tion for bail to enable it to be ascertained whether the Judicial Committee was moved for bail and whether any directions were given on such application.

After the adjournment a final order was passed by the High Court on August 21, 1944, dismissing the application for bail on the ground that the Judicial Committee was merely moved for special leave to appeal and gave no directions to the High Court to entertain an application for bail.

The question raised by this appeal is 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 leave to appeal against his conviction or sentence.

1944. Dec. 12, 13. Pritt K.C. and Khambatta for the appellants. There has been a conflict of opinion in India on the question in this appeal. The material provisions of the Code of Criminal Procedure are ss. 401, 426, 496, 498 and 561A [see the judgment of the Judicial Committee]. Most courts have rested on

s. 561 a—the inherent jurisdiction section —in saying that there is power to grant bail to a convicted person in such circumstances as the present. Blacker J. in Bawa Faqir Singh v. Emperor (( 1938) A. I.

R. (Lah.) 697.) said that a High Court having become functus officio when it p has passed an order in a criminal appeal, seisin may be revived if His Majesty in Council grants special leave to appeal with a direction to the High Court to entertain an application for bail. That is a strange half-way house. A direction of the Judicial Committee cannot alter the power which the High Court has or has not got. If there is power under s. 498 of the Code to grant bail the High Court does not need your Lordships direction, and if the High Court has not the power the Boards direction would not give it. The question is whether the inherent power of the High Court to make orders to secure the ends of justice, in s. 56IA, extends to the granting of bail. It is submitted that it does. Queen-Empress v. Subrahmania Ayyar (( 1900) I. L. R. 24 M. 161.) is not a very satisfactory decision, the court merely stating that in their opinion they had jurisdiction to give bail. In Emperor v. Ram Sarup (( 1926) I. L. R. 49 A. 247.) it was held that the High Court had inherent jurisdiction under s. 561A to grant bail, but they declined to do so until special leave to appeal had been granted by the Privy Council. Tulsi Telini v. Emperor (( 1923) I. L. R. 50 C. 585.) is earlier in date than s. 56IA of the Code. The legislature in s. 56IA has not created any new inherent power, but has simply said what that power is. It was said in Babu Lal Chokhani v. Emperor (I. L. R. [ 1937] I C. 464.) that after the disposal of a criminal appeal by the

High Court, it becomes functus officio and has no seisin of the case in any way, and that before leave to appeal has been granted by the Judicial Committee the High Court cannot grant bail. That does not affect the present case, because her