The judgment establishes that the power to grant bail pending an appeal is limited to a Court of Criminal Appeal before which an appeal is pending, unless there is express statutory provision to the contrary.

1. We convicted the appellant Bashiruddin of an offence of cheating under Section 420, I.P.C., upon an appeal by the Local Government against his acquittal. He now applies for bail pending an appeal which he says he intends to file before His Majesty's Privy Council as soon as he reasonably can. The question is whether we have power to grant bail at this stage. There is a difference of opinion on this point, the Allahabad High Court holding there is power and the Calcutta High Court holding there is not. In our opinion the Calcutta High Court's view is right. Sir Barnes Peacock decided in the year 1869 in In re Kishen Sunder Bhattacharjee,1869 12 WR 47 that a sentence of imprisonment must commence from the time that it is passed unless the Court is expressly empowered to order it to commence from some future period. He was dealing with Section 421 of the Code of 1861 (corresponding to Section 426 of the present Code) and pointed out several instances where this is expressly authorized, and then said:

Section 421, Criminal P.C., authorizes an appellate Court in cases where an appeal is allowed to suspend the sentence, and if the appellant be in confinement for an offence which is bailable to order his release on bail. The fact that this power is expressly given to the appellate Court shows that it does not exist in cases in which it is not given.

2. The learned Chief Justice also pointed out that the section does not give this power either to a Court of original jurisdiction or to a Court in which no appeal is pending. We gather this is still the law from an observation of the Judicial Committee in Balmukund v. Emperor, 1915 AIR(PC) 29, where their Lordships were asked to suspend a sentence of death. Pending an appeal to their Board they observed:

Their Lordships are unable to interfere. As they have often said, this Board is not a Court of Criminal Appeal. The tendering of advice to His Majesty as to the exercise of His Prerogative of pardon is a matter for the Executive Government and outside their Lordships' province.

3. We take it to mean that there is no such thing as an inherent power to suspend sentences and that the only authority which can do so is a Court of Criminal Appeal before which an appeal is pending, unless of course there is express statutory provision to the contrary. Is there any difference in a case of bail? We do not think there is. It will be noticed that Sir Barnes Peacock speaks of the two as one in the Calcutta case, and after all an admission to bail after conviction operates as a suspension of sentence, and so although a mere order for suspension of sentence may not have the effect of setting a man at liberty, ah order for bail unquestionably has the effect of suspending the sentence. It is clear the two are interrelated and if there is inherent power in the one case there must be in the other also and vice versa.

4. The next point to observe is that the Code expressly renders a Court functus officio the moment the judgment is signed save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court established by Royal Charter by the Letters Patent of such High Court: Section 369, Criminal P.C.

5. Consequently there is no power to alter or modify the sentence once the judgment is signed unless it is expressly conferred, and as we have shown an order releasing a person on bail after conviction carries with it a suspension of sentence, and that, as Sir Barnes Peacock held, can only be done by an appellate Court while it is still seized of the proceedings. So far as the present matter is concerned, only two sections in the Code can by any stretch of language be said to confer this power, viz. Section 498 and Section 561A. So far as the former is concerned we cannot take the words ''in any case'' and ''whether there be an appeal on conviction or not'' to mean that the Court can act once it has reached finality. The Code must be read as a whole and