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Amratlal Gurdial JaIn and anr. Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1973CriLJ1278; (1973)GLR61
AppellantAmratlal Gurdial JaIn and anr.
RespondentThe State of Gujarat and anr.
Cases ReferredJairam Das v. Emperor.
Excerpt:
.....(2a) of section 426 of the code till the petitioners lodge an application for special leave to appeal to the supreme court under article 136 of the constitution. vvas whether he would like to take a decision from this court on the scope of sub-section (2-a) of section 426 of the code, which would be a precedent requiring consideration in future. (2) notwithstanding anything contained in section 417, the state government may direct the public prosecutor to present an appeal to the high court from any order of acauittal passed by the high court in the exercise of its original criminal jurisdiction and such appeal may, notwithstanding anything contained in sec- 418. or section 423 sub-section (2) or in the letters patent or law by which the high court is constituted or continued but..........by andhra pradesh hieh court in that case was whether under sub-s. (2b) of section 426 of the code bail can be granted to a person who has been granted a certificate contemplated under article 134 of the constitution. the contention before the hieh court was that sub-section (2b) only contemplates cases of special leave to be granted by the supreme court under article 136 of the constitution, the learned sinsle judge who decided that case refused to accept this contention and gave meaning of the expression 'special leave to appeal to the supreme court' also to include srant of certificate by the high court under article 134 of the constitution. all the same the case was dealt with under sub-section (2b) because the certificate was granted in that case under article 134. in the.....
Judgment:
ORDER

D.P. Desai, J.

1. This application raises a question of construction of Sub-section (2A) of Section 426 of the Code of Criminal Procedure. 1898 (hereinafter referred to as 'the Code') in respect of the powers of the High Court, if any. to order a person to whom a certificate under Article 134 has not been granted by the High Court, to be released on bail in order to enable him to move the Supreme Court for special leave to appeal under Article 136 of the Constitution. The applicants who were original accused Nos. 1 and 3. were convicted by the learned Judicial Magistrate. First Class, at Broach of offences punishable under Section 135(b) of the Customs Act. 1962 and Section 8 read with Section 85 of the Gold (Control) Act, 1968. and were sentenced to different terms of imprisonment and fine. Their appeal to the Sessions Court against this order of conviction and sentence failed; and therefore, thev camp to this Court in revision. That was Criminal Revision Application No. 493 of 1971. That application came up for hearing before me on July 12, 1972 and the same was dismissed so far as the present applicants were concerned. On July 17, 1972, the applicants sought stay of the execution of the warrant of arrest in order to enable them to move this Court for a certificate under Article 134 of the Constitution. On that application, I Passed an order stayinff execution of the warrant of arrest till August 7. 1972. Meanwhile, petition of both the petitioners for certificatp under Article 134 came up for appropriate orders before myself and Mr. Justice M. P. Thakker on August 2 1972. We refused the certificate on that day. Therefore, this application is now filed pravins that time granted to the petitioners for surrendering to the authorities by my order dated 17-7-1972 may be extended by two weeks. On this Deti-tion, a auestion arose whether in a case like this where a certificate has been refused by a Division Bench of this High Court, the High Court has power to release the petitioners on bail under Sub-section (2A) of Section 426 of the Code till the petitioners lodge an application for special leave to appeal to the Supreme Court under Article 136 of the Constitution. Mr. R- D. Vvas, the learned advocate for the Detitioners made it clear at the time of arguments that he is confining his claim to the relief prayed for in the present petition to Sub-section (2A) of Section 426 only: and that obviously Sub-section (2B) of Section 426 will not apply to t.hp present case because the certificate has been refused by the Hieh Court.

2. Before proceeding to judgment, I had enauired of Mr. Vvas whether he would like to take a decision from this Court on the scope of Sub-section (2-A) of Section 426 of the Code, which would be a precedent requiring consideration in future. He, it appears, was inclined to take a decision of this Court.

3. For the purpose of determining this question it has been assumed by me that an application of this nature Purporting to be under Sub-section (2A) of Section 426 of the Code, can be dealt with by a Single Judge notwithstanding the fact that a certificate under Article 134 has been refused by the Division Bench. It is on that assumption that I proceed to decide the auestion raised before me.

4. Sub-section (2A) of Section 426 reads:

When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court, may if the convicted person satisfies the Court that he intends to Present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the apepal and obtain the orders of the Appellate Court under sub-section 11) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

5. Two Questions arise on a bare reading of the provisions of Sub-section (2A) reproduced above: and thev are interconnected viz. (1) whether the aopel-late Court mentioned in Sub-section (1) of Section 426 of the Code is the appellate Court contemplated by the provisions of appeal occurring in Chapter XXXI of the Code? and (2) Whether the expression 'and an appeal lies'' is confined to a right of appeal as conferred by the provisions of Chapter XXXI or is also referable to a right of appeal arising under any other law?

6. One thing is clear. The obiect of ordering a person to be released on bail under Sub-section (2A) is to enable him to 'obtain the orders of the Appellate Court under Sub-section (l)' Therefore, the first question as posed above has arisen. Evidently. Chapter XXXI provides for different forums in case of appeals and those forums are of the High Court or the Court of Sessions or a District Magistrate and only in one case contemplated by Section 411A. the Supreme Court. That Section reads:

411 A. (1) any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in Section 418 or Section 423 Sub-section (2) or in the Letters Patent or law by which the High Court is constituted or continued, appeal to the High Court:

(a) against the conviction on any ground of appeal which involves a matter of law only:

(b) with the leave of the appellate Court or upon the certificatp of the judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only or a matter of mixed law end fact, or any other ground which appears to the appellate Court, to be a sufficient ground of appeal; and

(c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law.

(2) Notwithstanding anything contained in Section 417, the State Government may direct the public Prosecutor to present an appeal to the High Court from any order of acauittal passed by the High Court in the exercise of its original criminal jurisdiction and such appeal may, notwithstanding anything contained in Sec- 418. or Section 423 Sub-section (2) or in the Letters Patent or law by which the High Court is constituted or continued but subject to the restrictions imposed by Clause (b) and Clause (c) of Sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law.

(3) Notwithstanding anything elsewhere contained in any Act, or Regulation, an appeal under this section shall be heard by a Division Court of the High Court composed of not less than two Judges being Judges other than the judge or judges by whom the original trial was held and if the constitution of such a Division Court is impracticable, the High Court shall report th circumstances to the State Government which shall take action with a view to the transfer of th appeal under Section 527 to another High Court-

(4) Subject to such rules as may from time to time be made by the Supreme Court in this behalf and to such conditions as the High Court may establish or reauire an appeal shall lie to the Supreme Court from any order made on appeal under Sub-section (1) by a Division Court of the High Court in respect of which order the Hieh Court certifies that the case is a fit one for such appeal.

Sec. 411-A is not applicable to the facts of the present case. It is applicable only where a trial is held by the High Court in exercise of its original criminal jurisdiction, A person convicted on such trial is given a right of appeal to a Division Bench of the High Court composed of not less than two judges and a further right of appeal from the order made by the Division Bench to the Supreme Court is conferred in a case where the High Court certifies that the case is fit one for appeal. Having provided for the forum of appeal. Section 419 of that Chapter lavs down inter alia that every appeal shall be made in the form of a petition in writing. The expression 'Appellate Court' occurrs in Sections 420 to 424, 428 and 430. This expression occurring in those sections means an appellate Court to which a petition of appeal has been made under Chapter XXXI. The meaning of the expression 'Appellate Court' in Sections 420 to 424 is auite clear- The question which then arises is what is the reason for giving a different meaning to the same expression used in Section 426(11) of the Code? The normal presumption is that the Legislature uses the same word in the same sense when dealins with a particular topic and making provisions in connection therewith. In the present case, the topic dealt with by the Legislature under Chapter XXXI is a topic of right of appeal the forum to which ap-eal can be made and the procedure to be followed by the appellate Court. There is no indication in Section 426 or at any other place to rebut this normal presumption.

7. The expression 'and an appeal lies from that sentence' would also mean an appeal which would lip under the provisions of Chapter XXXI.

8. Mr. Vyas for the petitioners drew my attention to Section 404 of the Code which reads:

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force' He submitted that the appeal under any other law for the time being in force is also contemplated by th Code. This section only lavs down tha't there should be no right of appeal from any judgment or order of a criminal Court unless it is provided for by the Code or by any other law for the time being in force. This provision has, therefore, no relevance on the construction of the expression 'and an appeal lies from that sentence.

9. Mr. Vvas then contended that liberal interpretation should be given to the words 'appellate Court' occurring in Section 426(1) of the Code and that the Supreme Court would be an appellate Court, contemplated by Sub-section (1) of Section 426. A logical consequence of acceptance of this contention is that power to release a convicted person on bail by the Supreme Court can bp found in Section 426 onlv. Now. Article 145 of the Constitution provides that subject to the provisions of any law made by Parliament, the Supreme Court may make Rules with the approval of the President for regulating generally the practice and procedure of the Court in respect of various items enumerated in clauses fa) to (i) of Articlp 145 (1). One of the topics on which the Supreme Court can make Rules is to be found in Cl- (s) which reads: 'rules as to the eranting of bail'. Rule 27 of Order XXI of the Supreme Court Rules 1966 reads:

27 Pending the disposal of any appeal under these rules, the Court may order that the execution of the sentence or order appealed, against be staved on such terms as the Court may think fit.' Evidently this would show that the appellate Court contemplated by Section 426(1) is an appellate Court as contemplated in Chap. XXXI of the Code and would not include the Supreme Court, because specific provsion has been made with regard to the granting of bail by the Supreme Court under the aforesaid Article 145 and the Rules of the Supreme Court. Rule 6 of Order 21 of the Supreme Court Rules, reads as under:Where the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Where the petitioner has not surrendered to the sentence, the petition shall not be posted for hearing unless the Court on a written application for the purpose, orders to the contrary, where the petition is accompanied by such an application the application and the petition shall be posted together before the Court.

This rule also gives an indication that the normal procedure for obtaining an order on the petition for special leave to appeal to the Supreme Court is that the petitioner should surrender to the sentence. This would be consistent with the attempt on the part of the legislature to see that a person whose sentence has been maintained by the High Court and who has been refused a certificate under Article 134 does not remain at large and surrenders to his sentence. The fact that Sub-section (2B) of Section 426 of the Code provides only for one category of cases where the person whose sentence has been maintained by the High Court can bp released on bail is also consistent with the aforesaid intention of the Legislature. If a person whosp praver for certificate under Article 134 was refused can be granted bail under Sub-section (2A). there was no need to makp provision for only one categorv in Sub-section (2B) because by the terms of Sub-section (2-A) that categorv also will be covered. This if Sub-section (2A) is given the meaning contended for on behalf of the petitioners, it would also enable the Court to Brant bail to a person who has been granted a certificate under Article 134 as well as to a person who has been refused that certificate. It appears however that by enacting Sub-section (2B) the Legislature wanted to make provision for grant of bail in case of a particular cateeorv only because there was no other enabling oro vision under which the High Court can grant bail in the Code.

10. Mr. Vvas referred to certain, observations made in In re Madanlal, : AIR1960AP622 . These observations may be reproduced:

It will be seen that a power intended to be normally exercised by the higher appellate Court was given to the Hieh Court, as a measure of necessity. The expression 'appellate Court' has not been defined in the Cr- P.. C; it obviously means a Court taking cognisance of an-peals. After the Constitution. the Supreme Court takes cognisance of appeals in Criminal matters from Hitrh Courts. O. XXI, Rule Id of the Supreme Court Rules specifically provides for the Supreme Court ordering stav of execution of the sentence or order appealed against in criminal matters.

It was urged that in view of these observations, the Supreme Court is an appellate Court. The attempt is to show that these observations applv to the present case. The Question that arose for decision by Andhra Pradesh Hieh Court in that case was whether under sub-s. (2B) of Section 426 of the Code bail can be granted to a person who has been granted a certificate contemplated under Article 134 of the Constitution. The contention before the Hieh Court was that Sub-section (2B) only contemplates cases of special leave to be granted by the Supreme Court under Article 136 of the Constitution, The learned sinsle Judge who decided that case refused to accept this contention and gave meaning of the expression 'special leave to appeal to the Supreme Court' also to include srant of certificate by the High Court under Article 134 of the Constitution. All the same the case was dealt with under sub-Section (2B) because the certificate was granted in that case under article 134. In the present case, certificate has been refused by this Court. Therefore, the view of Section (2B) taken by the Andhra Pradesh High Court in the aforesaid case does not arise for consideration in the instant case.

11. It was laid down by the Privv Council in Jairam Das v. Emperor. that 'Chapter 39 of the Code together with Section 426 contains a complete and exhaustive statement of the powers of a High Court in India to srant bail, and excludes the existence of any additional inherent power in a High Court relating to the subiect of bail.' If, therefore the provisions of Sub-section (2A) of Section 426 did not apply there is no other provision in the Code which , in view of the law laid dawn by the Privv Council as to the power of the High Court, would applv in the present case, nor is it submitted on behalf of the petitioners that any other provision would apply. As observed in the beginning, the contentions are restricted to Sub-section (2A) of Section 426 only.

12. It appears that in no decided cases cited at the bar Sub-section (2A) of Section 426 came up for interpretation and in all cases the auestion arose for determination under Sub-section (2B). Looking to the language of Section 426 and the context and purpose for which that provision has been made, it is not Possible to agree with the contention of Mr. Vvas that in a case where certificate has been refused by the High Court undei Article 134 of the Constitution, powers can be exercised by the High Court under Sub-section (2A) of Section 426 of the Code, because the appellate Court pending whose orders these interim orders are to be obtained is the appellate Court as contemplated by Chanter XXXI of the Code only.

13. In this view of the matter, the application fails and is dismissed. Rule discharged.


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