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Criminal Acquittal Appeal No. 362 of 1953, decided on 13th October, 1954. (Application under section 426(2A) Criminal Procedure Code).

Criminal Procedure Code (V of 1898), S. 426 (1), (2A) Appellate Court referred to in S. 426 does not include the Federal Court.

The Appellate Court referred to in section 426 does not include the Federal Court.

The object of the power of granting interim bail is to enable the applicant to obtain the orders of "the Appellate Court under subsection (1)". These words limit the applica tion of subsection (2A) to cases where you have an Appellate Court within the meaning of the Criminal Procedure Code.

Jairamdas case A I R 1945 P C 94 and Sarfraz's case (1951) P L D F. C. 41 ref.

Tufail Ali, for Applicants.

H. T. Raymond, for the Crown.

‑In this case the two applicants for bail have been convicted by this Court upon an appeal from an acquittal lodged by Government under section 9 of the Opium Act, and were sentenced to six months' R. I. They were also sentenced to pay a fine of Rs. 500 each in default one month R. I.

Mr. Raymond, the learned Public Prosecutor, objects that this Court has no power to release the applicants on bail except under subsection (2B) of section 426 of the Criminal Procedure Code, and we think that he is right.

Jairamdas' case (1) laid it down authoritatively that the provisions of the Code are exhaustive upon the subject matter of bail and that there is no power granted by section 561A outside the provisions of the Code regarding bail. Section 426 has been amended twice. Subsection (2A) was inserted in 1945, but it is agreed that this was not in consequence of Jairamdas' case whereas subsection (2B) was inserted in 1946 and it is agreed that this was inserted following the suggestion given by the Privy Council in Jairamdas' case.

It is commom ground that subsection (2B) does not apply in this case because there has not‑been time to lodge even an application for special leave to appeal.

As regards subsection (2A), Mr. Tufail Ali argues that the punishments in this case are appealable, i.e., appeal is not prohibited by section 413, that prohibition in the Code of Criminal Procedure does not apply to the jurisdiction of the Federal Court which has inherited the prerogative jurisdiction of the Privy Council.

The ground, which to us appears decisive against the application, is that the Appellate Court referred to in section 426 in our opinion does not include the Federal Court. Had' this been so then in Jairamdas' case there would have been an application to the Privy Council to exercise its powers under section 426, and it appears to us that no one ever contemplated that the Appellate Court referred to in section 426 (1) included the Privy Council.

Then, when we turn to subsection (2A), we find the object of the power of granting interim bail is to enable the applicant to obtain the orders of "the appellate Court under subsection (A I R 1945 P C 94)." These words appear to us to limit the B application of subsection (2A) to cases where you have an Appellate Court within the meaning of the Criminal Procedure Code.

At this stage of delivering our judgment Mr. Tufail Ali intervened to point out that section 6 of the Criminal Procedure Code in its enumeration of "Courts" begins "Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force", and he argued that these words are wide enough to include the Federal Court which has been constituted under the Government of India Act. In reply to this argument we would rely upon Sarfraz's case (P L D (1951) F C 41.). It is not contended that in this case there is any question of the interpreta tion of the Government of India Act. Therefore special leave to appeal would be granted only upon the merits of the case itself and the Federal Court in this case would therefore be exercising the prerogative jurisdiction inherited from the Privy Council. We think therefore that the Federal Court in this case is not an Appellate Court for the purposes of section 426 (1).

Mr. Tufail Ali relied upon an unreported judgment in Israr Hussain's case in which the learned Chief judge granted bail under subsection (2A) of section 426 in contemplation of an appeal to the Federal Court. There was, however, no reasoning in that order granting bail though the matter had been argued before him on successive days in chambers during the lunch intervals, and in any case that judgment is not binding upon us, being the judgment of a single judge. We do not think that the Federal Court in that case had any arguments directed to it upon this question : at least Mr. Tufail Ali cannot make any claim to such effect. There is nothing on record to show whether the Federal Court agreed with this assumption of power by the High Court or not.

For these reasons, therefore, we refuse to grant bail and cancel the previous orders for interim bail.

A. H. Bail refused.

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