1. This is an application filed by the respondent in Criminal Appeal 109 of 1966 who was convicted by this court under Section 16(1) read with Section 7(i) and proviso (11) of Section 16(1) 'F' of the Prevention of Food Adulteration Act and sentenced to undergo Section 1, for one week and to pay a fine of Rs. 950/-. A certificate of fitness to appeal to the Supreme Court has also been issued to him under Article 134(1)(c) of the Constitution Now the petitioner's prayer is that the sentence be suspended and he be enlarged on bail, The application is preferred under Sections 426(2-B) and 561-A of the Code of Criminal Procedure. Neither under Article 134(1)(c) of the Constitution nor under Section 426(2-B) or 561A of the Code of Criminal Procedure, the petitioner is entitled to ask for the suspension of the sentence. Section 426 provides for the suspension of sentence and admission of the accused to bail in cases where 'special leave to appeal to the Supreme Court' has been granted by the Supreme Court and does not take in cases in which certificate of fitness to appeal to the Supreme Court has been granted by the High Court under Article 134(1)(c) of the Constitution. The Allahabad High Court relying on a decision of the Privy Council in AIR 1945 PC 94 has observed as follows In Gore Lal v. State AIR 1958 All 607:--
'The High Court has no statutory or inherent power to grant bail to, or suspend the execution of the sentence of a person whose conviction and sentence it has maintained, except where that person has been granted special leave to appeal under Article 136 of the Constitution, and in no other case. Indeed, except for the purpose of granting a certificate under Article 132(1) or Article 134(1)(c) of the Constitution, or granting bail or suspending the sentence under Section 426(2-B) of the Code the High Court becomes functus officio. Any other view would result in defeating the ends of justice in certain circumstances and in an alteration by the High Court of its judgment contrary to Section 369 of the Code.'
2. To the same effect is the observation of the Himachal Pradesh J. C.'s Court in Kalawati v. The State, 1952-53 Cr. L J 1461: (AIR 1952 Him Pra 67). The learned Judge observed in that case :--
'Bail can be granted to a convicted person by the High Court under Section 426(2-B), Criminal P. C. only where the Supreme Court has already granted him special leave to appeal to that court and not before or merely upon the certificate of the High Court under Article 132 or Article 134(1)(c) Constitution of India
A reference to the provisions of Articles 132, 134 and 136 of the Constitution will show that special leave is quite different from the certificate of fitness. The former can only be granted by the Supreme Court under Article 136, and all that a High Court can do is to grant a certificate under Article 132(1) or under Article 134(1)(c).'
3. A Single Bench decision of the Andhra Pradesh High Court has sounded a different note in In re. Madanlal AIR 1960 Andhra Pra 622. Krishna Rao. J., has observed in that case : --
'The expression 'special leave to appeal' in Section 426(2-B) Criminal P. C. should be given its ordinary and natural meaning and should not be construed as a term of art. It includes certificate of fitness granted by the High Court under Article 134(1)(c) and should not be confined only to special leave to appeal granted by the Supreme Court under Article 132(2) or Article 136 of the Constitution'
Hence, where a convicted person has been permitted to appeal to the Supreme Court from the sentence of a High Court on special grounds an application under Section 426(2-B) Cr. P. C is maintainable.' We do not find our way to subscribe ourselves to this view.
4. It was argued on behalf of the petitioner that the words 'special leave to appeal to the Supreme Court' in Section 426(2-B) of the Code signify the same thing as the grant of a certificate by the High Court to the effect that the case is a fit one for appeal to the Supreme Court. But a careful reading of the provisions of Articles 132, 134 and 136 of the Constitution would show that 'special leave' is quite different from 'certificate of fitness' -- the former to be dealt with by the Supreme Court and the latter by the High Court. So, only in cases where 'leave to appeal' has been granted by the Supreme Court, that the High Court will be in order, in suspending the sentence and releasing the accused on bail. The following observation in Sohoni's The Code of Criminal Procedure. 16th Edn Vol III p 2637 is instructive : --
'There appears to be no good ground why the High Court should have power to grant bail, only in cases where leave has been granted by the Supreme Court under Article 132 or 136 of the Constitution or by the High Court on special grounds under Article 132 or 134(1)(c) and not in cases whereappeal lies to the Supreme Court under Article 134(1)(c)and (b) of the Constitution. Under Articles 132(1) and 134(1)(a) and
(b) special grounds on which appeal shall lie to the Supreme Court are specified in the Constitution itself, while Article 134(1)
(c) gives the residuary power to the High Courts if there are any other special grounds for certifying the case as a fit one for appeal to the Supreme Court'. Unless power is substantially conferred on the High Court to grant bail in a case covered by Article 134(1)(c) of the Constitution the sentence cannot be suspended and bail granted to the accused.
5. Learned counsel reminded us of the inherent power vested in this court under Section 561-A of the Code; but we do not think that the instance before us is one where the inherent power can be exercised with justification
'Inherent powers can only be exercised within the frame work of the law and not in violation of the law. In the exercise of the inherent power under the Section the court has to guard against passing an order which would conflict with the provisions of the Code A relief however equitable cannot be granted by exercising the inherent power in contravention of the law'. (Vide Melhotra v. State -- AIR 1958 All 492)
We are, therefore, helpless in the matter. We might, however, observe that this is an anomaly which requires speedy solution and the solution can be achieved only by legislation The delay involved in moving the Supreme Court and acquainting it with the relevant facts would more often than not result in hardship and serious injustice to the convicted person. For instance, in a case like the present one where the imprisonment awarded is only for a period of seven days and before he obtains an order of bail from the Supreme Court the sentence itself might be served in full and if ultimately he succeeds in the appeal the position would all the more be irretrievable. Some measure has hence 1o be found to meet situations like this.
(6) With these observations the petition is dismissed.