Govinda Menon, J.
1. 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, Penal Code, and sentenced to three years rigorous imprisonment by the learned Sessions Judge. Criminal App. No. 494 of 1950 is against the said conviction and sentence. This appeal came on for admission before our learned brother Panchapagesa Sastri J. on 28-7-1950 and notice has been issued to the Public Prosecutor under Section 422, Criminal P. C. Along with the appeal petition, Cr. M. P. 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. Criminal 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 11-8-1950 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.
2. 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, Criminal P. C. whereas the power under which an appellate Court can release an appellant on bail pending disposal of his appeal is found in Section 426, Criminal P. C. The learned Judge also referred to a decision of this Court in Subrahmanya Iyer v. Emperor, 19 M. L. J. 478 : (11 Cr. L. J. 279) 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 C. 15 of the Letters Patent. The learned Judge also opined that such an order would not be a judgment under Section 369, Criminal P. C. Such being the case, in the opinion of the learned Judge Section 369, Criminal P. C., 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.
3. Chapter 39, Criminal P. C., deals with the practice and procedure to be followed in the matter of bail. Section 496, Criminal P. C., lays down in what cases bail can be taken; Section 497 sets out when bail may be taken in casea 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 peraon to be admitted to bail, in any caae. 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 Chap. 31 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 appealed against be suspended, and, if he is in confinement, that he be released on bail or on his own bond. Clause (2) empowers the High Court to release a convicted person on bail even if no appeal is pending in the High Court but an appeal is pending before a Court subordinate to it. It is now firmly well established by a long course of decision that though Section 426 (1) now enables an appellate Court to release a convicted person on bail for reasons to be recorded by it in writing, so far as the High Court is concerned the power to grant bail is much wider in scope than what is contained in that section, because the second part of Section 498 lays down that the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail. This means that the restrictions contained in Section 497 are not applicable to a High Court or Court of Session, which latter Courts have the power, unfettered by the restrictions contained in Section 497, to release an accused person, whether convicted or pending trial, on bail. It is not disputed by the learned Public Prosecutor that even during the pendency of an appeal, in the High Court, the Power to release the appellant on bail need not be confined to the more restrictive provisions of Section 426 (1) but can be exercised in accordance with the wide language of the second part of Section 498.
4. The question, therefore, is whether a convicted person whose appeal(bail?) petition has once been rejected, can renew that application for the same relief pending his appeal. Somasundaram J. seems to think that in such a case there can be no fresh circumstances arising for a second bail application when an earlier one has been rejected on the ground that it is inexpedient to release the appellant on bail. In our opinion, even during the pendency of an appeal, circumstances justifying the grant of bail may vary and arise under different conditions. For example at the time when an application for bail is moved, the Court may think that there are no grounds for releasing the petitioner from custody pending the appeal. But it is possible that some time later, before the appeal comes up for disposal, the appellant may suffer from illness which might necessitate his treatment in hospitals or other places where better facilities are available than can be got in a jail dispensary. In such a case, it is plain that there are fresh circumstances arising than were in existence at the time of the dismissal of the earlier application. It might also be that the convicted person may have to be released on bail because of the serious illness of a near relative, which did not exist at the time the earlier application was rejected. One can visualise other circumstances also. Therefore, in our opinion, even during the pendency of an appeal, different conditions and circumstances may arise which may necessitate or justify the granting of bail even though an earlier application for bail has been dismissed. It seems to us therefore that the non-maintainability of a second application for bail cannot be rested on the fact that the same set of conditions would continue and enure during the whole period when an appeal is pending before the High Court.
5. The learned counsel for the petitioner Mr. V. V. Srinivasa Aiyangar rests his argument on three different grounds. The first of them is that in the absence of a specific provision in the Criminal Procedure Code prohibiting a second application for bail, it cannot be said that a second application is not maintainable because any such non-maintainability should be the necessary result of statute law; and in the absence of such a provision, a second application would lie. Secondly, the learned counsel contends that an order rejecting a bail application is not a final decision or a judgment on a question of fact or law. The only provision of the Code which enacts about the finality of the judgment of a Criminal Court is Section 369, wherein it is enacted that save as otherwise provided by the 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, no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error. In the Charter of the High Court, or in its Letters Patent, there is no provision allowing it to alter a judgment or review the same. Therefore the learned counsel contends that since an order refusing bail is not a judgment as contemplated by Section 369, Criminal P. C., there is nothing which prevents a Court from reconsidering the application for bail though, on the grounds alleged on an earlier occasion, the same relief has been refused. We may also refer in this connection to Section 403, Criminal P. C., relating to the finality of previous acquittals or convictions. Section 403, Criminal P. C., enacts that a person once convicted or acquitted shall not be tried again for the same offence, nor on the same facts for any other offence. It is unnecessary to extract the provisions of Section 403, Criminal P. C., and the various clauses and ramifications of it for it is nobody's case that Section 403 as such has any application to the present case. It has to be remarked that an order on a bail application does not finally determine the guilt or innocence of a person accused or convicted of an offence. All that such an order postulates is that pending an enquiry or trial, and in the case of a convicted person, pending an appeal by him, it is not absolutely necessary that his liberty should be curtailed.
6. In a case where the enquiry or trial is pending, the Court may feel that the materials before it are not sufficient to warrant a charge that the accused person is prima facie guilty of the offence complained against him. In such a case, the Court can release him on bail. It might also be that even if there are materials for concluding that prima facie a case has been made out against an accused person, though the trial has not reached its final stages, the Court may feel that the health of the person accused warrants his being set at liberty, or the Court may feel that there are other grounds than those already mentioned which would justify his liberty being restored to him pending final decision. In a case where an appeal is pending from a conviction, the question as to whether prima facie the appellant is guilty does not arise, for a competent Court had already pronounced on his guilt and unless that is set aside, the presumption is that the appellant is guilty of the offence. But an appellate Court is empowered under Section 426, and in the case of a High Court or Court of Session, under Section 498, to release an appellant for reasons other than the prima facie nature of his guilt. It seems to us, therefore, that an order on a bail application is nothing more than an interlocutory and tentative expression of the conclusion as to whether a person should be set at large pending trial, or disposal of his appeal, and nothing more. It is more or less analogous to an application under Order 41, Rule 5, Civil P. C., where, pending an appeal an appellate Court is empowered to stay the execution of a decree passed by a Court of first instance against which an appeal is pending before the Superior Court, It has never been doubted that an appellate Court can entertain more than one application for stay. But usually when once an application for stay has been rejected, the same Court would not think of granting stay except under a complete change of circumstances or, where further reasons, which were not in existence at the time the earlier stay application was rejected, are proved to the satisfaction of the Court. In our view, the proper way of looking at the maintainability or otherwise of a second application for bail pending an appeal is to consider it in the same way as a second application for stay of execution of a decree pending an appeal under Order 41, Rule 5, Civil P. C. There is no provision in the Code of Civil Procedure, which prohibits the filing of successive applications for stay or for successive interlocutory applications pending a suit. Section 11 and the general principles of res judicata do not apply to such applications. But Courts are very reluctant, if (not ?) loath, to grant the same relief when once the same has been rejected on an earlier occasion. 7. On an a priori view of the matter, it seems to us that there is no prohibition against the entertaining of a second application for bail pending an appeal, when an earlier application has been rejected. But is there anything in the Code itself which prevents the recurrence of applications for bail Our attention has not been invited to any provision of law to that effect. Section 497 (5), Criminal P. C., is to the effect that a High Court or Court of Session and, in the case of a person released by it any other Court, may cause any person who has been released under this section to be arrested and may commit him to custody. In view of that ifc is clear that when once bail has been granted, this section enables the Court that has granted the bail, under changed conditions, whenever such appears, to cancel the bail and commit the person to custody. In the Public Prosecutor v. Sanyasayya Naidu : AIR1925Mad1224 a Bench consisting of Coutts-Trotter C. J. and Srinivasa Aiyangar J. has held that under Section 497 (5) Courts are given power to arrest any person released on bail and therefore Courts have ample jurisdiction to exercise their discretion and order the re-arrest of any person out on bail, if circumstances warrant or demand such a course. Byers J. in the Crown Prosecutor v. Krishnan : AIR1946Mad289 doubts the correctness of the opinion of Coutts-Trotter C. J. enunciated in the case Public Prosecutor v. Sanyasayya : AIR1925Mad1224 but holds that the High Court has the power under Section 561A, Criminal P. C., to cancel the bail allowed by it and rearrest an accused person and commit him to custody. According to the learned Judge although Section 497 (5) can have no application to the case of an accused person who has been released on bail under Section 498 of the Code, it is open to the High Court, in the exercise of its powers under Section 561A to discontinue the order granting bail and commit the person to custody. It is not necessary for us to canvass the correctness or otherwise of the reasoning of the learned Judge in which he dissents from the view enunciated by Coutts-Trotter C. J. though in our opinion, we are not satisfied that the learned Judge was right in holding that Section 497 (5) does not give such a power to the High Court or to a Court of Session. But in any case, we agree with the learned Judge that even if Section 497 (5) does not apply, the High Court or Court of Session has the power, under Section 561A, to cancel a bail order already made and re-arrest and commit the accused person to custody. If that were so, can it be said that an appellate Court which has once refused bail, cannot reconsider a fresh application at least for reasons other than those which have already been put forward and rejected? Such a reconsideration will be prohibited only if the order already rejecting the bail application amounts to a judgment under the Criminal Procedure Code. It need hardly be stated that the Criminal Procedure Code does not define the word 'judgment' as is done in the Code of Civil Procedure. One of us had occasion to refer to it recently in the case reported in Suryarao v. Sathiraju, 1948 M.W.N. 65 : (A.I.R.1948 Mad. 510 : 49 Cr. L. J. 754. Reference was made there to the definition of 'judgment' in Halsbury's Laws of England, Hailsham Edn., vol. IX, paras 260 to 264 as meaning a final order in a trial terminating in the conviction or acquittal of the accused. That this is the meaning of the word 'judgment' even under the Criminal Procedure Code is evident from the decisions quoted therein, viz., Emperor v. Maheswara Kondayya, 31 Mad. 543 : (9 Cr. L.J. 80) and Kuppuswami Rao v. The King as well as from the dictum of Sulaiman J. in Horiram Singh v. The Crown . If by the word 'judgment' is understood a final order in a trial terminating in the conviction or acquittal of the accused, it necessarily follows that a tentative order directing the release of an accused person pending the hearing of his appeal by an appellate Court cannot be termed a 'judgment' under the Code. Therefore, Section 369, Criminal P. C., can have no application to a bail application.
8. We have taken some pains to find out whether there is any procedure laid down under the English Criminal Appeal Act, 1907, relating to the granting of bail when an earlier application for bail has been rejected. In the rules framed for the conduct and procedure of appeals under the Criminal Appeal Act, 1907, Sub-rule (m) of Rule 29 is as follows :
'At any time after an appellant has been released on bail under the Act, the Court of Appeal may, if satisfied that it is in the interest of justice so to do, revoke the order admitting him to bail, and issue a warrant .. . . for his apprehension, and order him to be committed to prison.'
See page 287 of Archbold's Criminal Pleading, Evidence and Practice, 31st Edn. There are also provisions such as Sub-rule (j) wherein power is given to re-arrest an appellant when the Court is satisfied that he is about to depart out of England or in any manner fails to observe the conditions of his recognizances on which he was released on bail. The rules framed under the Court of Criminal Appeal Act, 1907, do not in specific terms, prohibit a subsequent application for bail when an earlier application has been rejected.
9. By way of analogy, we may refer to certain decisions of this Court laying down the law that where a complaint has been dismissed under Section 203, or a person has been discharged under Section 253 in a warrant case, the case can again be proceeded with on a fresh complaint because there is no prohibition against such a procedure. In Emperor v. Chinna Kaliappa Gounden, 29 Mad. 126 : (3 Cr. L. J. 274 F.B.) a majority of three Judges of a Full Bench consisting of five Judges laid down that the dismissal of a complaint under Section 203 does not operate as a bar to the re-hearing of the complaint by the same Magistrate, even when such order of dismissal has not been set aside by a competent authority. That this is settled law is clear from the subsequent cases which have followed it, viz., Emperor v. Maheswara Kondayya, 31 Mad. 543 : (9 Cr. L. J. 80) where a Bench of this Court applied the principle to the discharge of an accused person under Section 253, Criminal P. C., and laid down that it is competent to a Magistrate who has discharged an accused person under Section 253, Criminal P. C., to take fresh proceedings against the person so discharged in respect of the same offence without such order being set aside by the High Court. It is further laid down that the principle of autrefois acquit can have no application where the accused is discharged under Section 253, as there can be no trial when the accused is discharged. Incidentally one of the learned Judges, Pinhey J. has held that an order of discharge is not a judgment as it is not an order in trial terminating either in the conviction or the acquittal of the accused. We may alao refer to Ponnuswami Goundan, In re, 55 Mad. 622 : (A. I. R. 1932 Mad. 369 : 33 Cr. L. J. 454 which followed the majority view in Emperor v. Chinna Kaliappa Goundan, 29 Mad. 126 : (3 Cr. L. J. 274 F. B.). If an order dismissing a complaint under Section 203, or an order discharging an accused person under Section 253, cannot be said to be a final adjudication and a final expression of opinion amounting to a judgment, still less has it to be held that an interlocutory order on a bail application will be a judgment.
10. The Allahabad High Court in Chhotey Lal v. Tinkey Lal : AIR1935All815 had to consider a point as to whether an order under Section 528, Criminal P. C., is a judgment or not. Ganga Nath J. held that Section 369 does not apply to an order of transfer under Section 528 because it is not in the nature of a judgment. An order of transfer cannot be regarded as an order in the nature of a judgment and hence can be altered after it is once passed and signed. According to the learned Judge an order in the nature of a judgment is one which is passed on full enquiry and after hearing both parties.
11. As a matter of practice, it is very seldom that in an application for bail pending the hearing of an appeal by a convicted person notice is given to the Public Prosecutor and he is heard. We have referred to these decisions regarding transfer petitions and discharge orders as not being judgments by way of analogy, because if orders on those matters cannot be termed to be judgments, in our opinion an order on a bail application is much less a judgment.
12. But it has been pressed before us that some of the High Courts have expressed the opinion that when an application under Section 491, Criminal P. C., has been considered and rejected by the High Court, a fresh application by the same detenu under the Preventive Detention Act for the same relief cannot be entertained. In Emperor v. Malhari Ramaji, 50 Bom. L. R. 188 : (`: 49 Cr. L. J. 460 a Full Bench of the Bombay High Court ruled that under Section 491, Criminal P. C., a detenu cannot make successive applications for a writ of habeas corpus and that it is not open to him to ask for a review of an order already made under Section 491. The learned Judges referred to the decision in Kisorlal v. The Crown, I. L. R. (1945) Lah. 573. To the same effect are the decisions in Haridas Damaji v. Provincial Government, G. P. & Berar and Satish Gopal v. Bex, I. L. R. (1949) ALL. 455: (A. I. R. 1949 ALL. 147 : 50 Cr. L. J. 212 F. B.) In the Nagpur case Haridas Damaji v. Provincial Government, C. P. & Berar a Bench of that Court held that an order passed under Section 491, Criminal P. C., is a judgment within the meaning of Section 369, because it finally determines the legality or the propriety of the detention and the question whether the applicant is entitled to be released, and as such, cannot be altered or reviewed except to correct a clerical error. Section 491 makes no provision for review and a High Court has no inherent power to alter or review a judgment in a criminal case and Section 561A does not modify or alter Section 369 of the Code and does not authorise a High Court to review or alter its judgment or order in a criminal case. The Allahabad decision, Satish Gopal v. Rex, I. L. R. (1949) ALL. 455 : (A. I. R. 1949 ALL. 147 : 50 C. L. J. 212 which is by a Full Bench mainly based its decision on Rule 8, Chap. I of the Rules of the Allahabad High Court which expressly prohibited the presentation of a second application under Section 491 when an earlier application has been rejected by a Judge. But the learned Chief Justice makes it quite clear that the dismissal of an application under Section 491 will not bar a second application where the further detention of the person has become illegal after the first application was disposed of. On the other hand, a more recent decision of the East Punjab High Court in Ramjilal v. Rex A. I. R. 1949 E. P. 67 : (50 C. L, J. 271 F. B.) is to the contrary effect. The majority view of the Pull Bench in that case consisting of Mahajan, Teja Singh and Khosla JJ. (Teja Singh J. doubting) is to the effect that the rules framed under Section 491 (2) do not lay down any prohibition regarding the making of successive applications to the Court. There does not exist a general rule which prohibits the making of successive applications on identical matters and for an identical relief even when a previous application for a similar purpose and object has been dismissed. They further laid down that the decision of an application under Section 491 by its dismissal on the merits cannot be held to be a judgment in the sense in which that expression has been used in Section 369. That section, therefore, cannot be used as a bar to the determination of successive applications under Section 491, even if previous applications have been dismissed.
13. It is unnecessary for us to express an opinion as to which of the two divergent views mentioned above is correct, because there is sufficient difference between an interlocutory order on a bail application and an order on a habeas corpus application which is analogous to an original petition under the Civil Procedure Code. So far as the determination of matters which form the subject-matter of an original petition under the civil law, the general principles of res judicata are applicable. For example, an application under the Guardians and Wards Act, the Indian Succession Act and similar statutes, is intimated as an original petition and orders passed thereon will be subject to the principle of res judicata. In passing we may also refer to Section 430, Criminal P. C., which speaks of finality of orders on appeal, and this section states that judgments and orders passed by an appellate Court upon appeal shall be final except in the cases provided for in Section 417 and chap. 32. These two relate to appeal against acquittal and reference and revision. A distinction has to be drawn between a judgment or an order passed by an appellate Court. A judgment is one which finally acquits or convicts an accused person and any other order passed by an appellate Court disposing of the appeal would include an order of remand or retrial. But it cannot be said that an order passed by an appellate Court would include an interlocutory rejection of an application for bail. It seems to us therefore that the previous order of Panchapagesa Sastri J. refusing to release the petitioner on bail will not prevent the hearing of the present application.
14. On the merits, in our opinion, this is a fit case for exercising our discretion and releasing the petitioner pending the appeal. Before Panchapagesa Sastri J. there were no grounds mentioned in the application except that the petitioner was a playwright and a respectable man and has been unjustly implicated in the case. In the affidavit supporting the present petition it is stated that the mother of the applicant, an old lady aged about 95 years, is now in a very serious state of health and it is necessary that the petitioner should be by her side. Other grounds are also mentioned which we need not rely upon. Moreover, in Cr. M. P. No. 1652 of 1950, the fifth accused in the lower Court who had been sentenced to the same term of imprisonment has been released on bail by our learned brother Somasundaram J. Such being the case, we feel that the interests of justice do not require the continued incarceration of the petitioner pending disposal of his appeal. The petitioner will therefore be released on bail on his furnishing security in his own bond for Rs. 1000 with two sureties each for a like amount to the satisfaction of the Stationary Sub-Magistrate of Kumbakonam.