Filing of second application during pendency of appeal.

Govinda Menon, J.-The petitioner herein was the fourth accused in S.C. No. 35 of 1950 on the file of the Court of Session of the West Tanjore Division and he was convicted under section 401, Indian Penal Code and sentenced to three years’ rigorous imprisonment by the learned Sessions Judge. Criminal Appeal No. 494 of 1950 is against the said conviction and sentence. This appeal came on for admission before our learned brother Panchapakesa Sastri, J.,on 28th July, 1950, and notice has been issued to the Public Prosecutor under section 422 of the Criminal Procedure Code. Along with the appeal petition, Criminal Miscellaneous Petition No. 1548 of 1950 had also been preferred by the petitioner praying that he might be released on bail pending disposal of the appeal. The learned Judge rejected the bail application and refused to enlarge the petitioner on bail. The present application has been presented on the 8th of this month praying that the petitioner may be enlarged on bail pending the disposal of the appeal. Crl. M.P. No. 1548 of 1950 was unsupported by any affidavit setting forth the reasons which might induce the Court to release the petitioner on bail. The present application is based upon an affidavit wherein various reasons are alleged as to why the petitioner should not be kept in custody pending disposal of the appeal. When it came on before our learned brother Somasundaram, J., on nth August, 1950, he referred the matter to this Bench because in his opinion it is doubtful whether the Court has jurisdiction to grant bail on a second application when an earlier application for the same relief had been refused. That is how the petition comes up before this Bench.

According to the learned Judge, before conviction and during the enquiry or trial an accused person can file successive applications for bail since there is no prohibition against the filing of such applications. The provisions of law governing the applications for bail pending trial or enquiry are contained in sections 497 and 498 of the Criminal Procedure Code whereas the power under which an appellate Court can release an appellant on bail pending disposal of his appeal is found in section 426 of the Criminal Procedure Code. The learned Judge also referred to a decision of this Court in Subramania Iyer v. The King Emperor1, where the view has been expressed that an order on an application refusing bail by this Court pending the trial of an accused person in a lower Court is not a “judgment” within the meaning of clause 15 of the Letters Patent. The learned Judge also opined that such an order would not be a judgment under section 369 of the Code of Criminal Procedure. Such being the case, in the opinion of the learned Judge section 369, Criminal Procedure Code, would not be a bar to a fresh application. The learned Judge did not express any opinion as to whether a subsequent application for bail is an attempt to review a previous order and as this is a matter of importance, the reference has been made to this Bench.

Chapter XXXIX of Criminal Procedure Code deals with the practice and procedure to be followed in the matter of bail. Section 496, Criminal Procedure Code, lays down in what cases bail can be taken; section 497 sets out when bail may be taken in cases of non-bailable offences; and section 498 relates to the power to direct admission to bail or reduction of bail as well as the power of the High Court to direct any person to be admitted to bail, in any case. Sections 499 to 502 deal with the procedure to be followed after a Court has directed the release of an accused person on bail. Section 426 occurs in Chapter XXXI of the Code relating to appeals and its provisions empower an appellate Court to suspend the sentence or release an appellant on bail. Section 426, clause (1), states that pending an appeal by a convicted person, the appellate Court may for reasons to be recorded by it in writing, order that the execution of the sentence or order a