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Case Number
Judges
  • Cunliffe
  • Henderson, JJ.
Acts
  • provisions of a new section in the S. 561-A
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Cunliffe
  • Henderson, JJ.
Acts
  • provisions of a new section in the S. 561-A
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Smart Summary

Judgment Summary — Reasons for Rejecting Petition (Cunliffe and Henderson, JJ.)

Factual and Procedural Background

The petitioner, Babulal Chaukhani, was tried before a Magistrate along with others for offences under the Electricity Act and for conspiracy. Multiple convictions resulted; the petitioner appealed to the Court of Appeal. The Court of Appeal set aside the petitioner's conviction for conspiracy but upheld his conviction for theft under the Electricity Act and sentenced him to one year's rigorous imprisonment.

The petitioner sought an extension of time within which to surrender to his bail before the Chief Presidency Magistrate, claiming he had instructed solicitors in England to place a petition before the Judicial Committee of the Privy Council. The Magistrate had already allowed a concession postponing surrender until, it appears, the 29th of the previous month but refused any further extension. The petitioner therefore applied to the High Court for (a) revision of the Magistrate's refusal to extend surrender time and (b) an order granting bail or further extension so that the Privy Council petition could be lodged or entertained.

Legal Issues Presented

  1. Whether the High Court (on revision) could direct the Chief Presidency Magistrate to extend the time for the petitioner to surrender notwithstanding that no specific provision of the Code of Criminal Procedure authorises such an order by the Magistrate.
  2. Whether the High Court had jurisdiction to grant bail or to extend the time to surrender pending an application to the Judicial Committee of the Privy Council, particularly in light of Section 561-A of the Code of Criminal Procedure.
  3. Whether earlier authorities (notably a decision of this High Court, cited as 50 Cal 585, and decisions of other High Courts) permit the exercise of inherent jurisdiction to stay execution of a sentence or to admit to bail in circumstances where a petition to the Privy Council is contemplated or pending.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner sought an extension of time to surrender to bail so that solicitors in England could present a petition to the Judicial Committee of the Privy Council.
  • Reliance was placed on a recent Allahabad High Court decision (49 All 247) where the Court asserted an inherent jurisdiction to stay execution of its own order and to admit to bail when the ends of justice required and where the Privy Council appeal process was being pursued.
  • Reliance was also placed on a Madras High Court decision (24 Mad 161) where bail was allowed after leave had been granted by the Judicial Committee.
  • Counsel (identified as Mr. Carden Noad / Mr. Noad in the opinion) argued that Section 561-A of the Cr. P.C. preserves inherent jurisdiction and thereby supports the relief sought.

Crown / Respondent's Arguments

  • The Crown, represented by Mr. Page, submitted there were no merits in the petitioner's appeal and relied on established authority (notably Dillett's case, 1888 12 AC 459) to suggest the chance of a successful petition to the Judicial Committee was very remote.
  • Implicitly, the Crown argued that the Court should not exercise any power to impede or frustrate the enforcement of this Court's orders and that allowing the extension or bail would facilitate evasion of the sentence.

Magistrate / Procedural Position

  • It was conceded by the petitioner's counsel that there is no specific provision in the Code of Criminal Procedure empowering a Magistrate to make an order extending the time to surrender for the purpose of pursuing a Privy Council petition.
  • The chestnut position advanced by the Court: the Magistrate's duty is to ensure that this Court's orders are carried out rather than to assist in their evasion.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
49 All 247 (Allahabad) Held that the High Court had inherent jurisdiction to stay execution of its own order and to admit to bail where the ends of justice required and where an appeal to the Privy Council was being pursued; relied upon Section 561-A as preserving inherent jurisdiction. The Court noted the facts in 49 All 247 were not analogous: in that case further procedural stages had been reached (applications made before surrender and later after surrender and leave considerations). The present Court distinguished it and found it not a direct authority for granting the relief sought.
24 Mad 161 (Madras) Short decision where, after leave had been granted by the Judicial Committee, the Madras High Court allowed bail in substantial form with two sureties. The Court observed that the facts there (leave already granted by the Judicial Committee) were not analogous to the present case; used to illustrate that when the Privy Council stage has clearly advanced, the High Court's position may differ.
50 Cal 585 (Calcutta High Court) Held that between the time an appellate court has finally dealt with a criminal matter and the time when a successful approach has been made to the Privy Council, the High Court in matters of bail is functus officio and lacks seisin to grant leave or bail; Subrahmania Ayyar's case was considered and distinguished in that judgment. The present Court treated 50 Cal 585 as a binding authority. It held that its principle applied and was not irreconcilable with the other authorities relied upon by the petitioner; it was central to the rejection of the application.
Subrahmania Ayyar's case Referenced in 50 Cal 585 and distinguished there (specific rule in the present opinion is not detailed). The Court noted that Subrahmania Ayyar's case had been referred to and distinguished in 50 Cal 585; it did not treat Subrahmania Ayyar as enabling the petitioner's relief.
Dillett's case, 1888 12 AC 459 Cited by Crown's counsel to show that in similar circumstances the prospects of a successful approach to the Judicial Committee of the Privy Council were very remote. The Court accepted the Crown's reliance upon Dillett's case in the context of the merits, noting that counsel argued the petitioner's chance of success was problematical; this influenced the assessment of whether the ends of justice required interference.

Court's Reasoning and Analysis

The Court wrote reasons (Cunliffe, J., and Henderson, J.) explaining why the petition for extension of time to surrender and for bail was rejected.

Key legal-analytical steps:

  1. The Court first situated the factual posture: the Court of Appeal had finally disposed of the petitioner's appeal so far as the province was concerned, leaving a conviction for theft and a sentence of one year's rigorous imprisonment to be served.
  2. Cunliffe, J. considered the authorities relied upon by the petitioner (Allahabad and Madras decisions) and observed that they were materially different: in those cases some further definite procedural stage (notably acceptance or grant of leave by the Judicial Committee) had been reached, and thus the High Courts in those cases had exercised an inherent power on different facts. By contrast, in the present case such a stage had not been reached.
  3. Cunliffe, J. treated the Calcutta High Court decision in 50 Cal 585 as directly on point and binding. That case held the High Court is functus officio in matters of bail between the final appellate action within the province and any subsequent approach to the Privy Council, so that the case cannot again be brought before the High Court for leave or bail. Cunliffe, J. concluded that the present case fell within that principle.
  4. The Court addressed the petitioner's reliance on Section 561-A of the Criminal Procedure Code, which preserves inherent jurisdiction of the High Court. Both Judges considered whether that provision altered the position on bail: Henderson, J. held it would be incorrect to interpret Section 561-A as having reference to bail, a matter already specifically governed by the Code; Cunliffe, J. similarly treated the Allahabad reliance on the new section as distinguishable on the facts.
  5. Henderson, J. emphasised the procedural point that there is no specific power in the Code enabling a Magistrate to extend the time for surrender for the purpose of pursuing a Privy Council petition; it was conceded by petitioner's counsel. The Magistrate's duty is to see that this Court's orders are executed and not to facilitate evasion of sentence. The High Court, in revisional jurisdiction, could not direct the Magistrate to pass what would be an improper order.
  6. Even assuming arguendo that some residual jurisdiction under Section 561-A could permit an extension, Henderson, J. held that on the merits no case for interference had been made. Granting the relief sought would stultify an order of this Court, would not prevent abuse of process, and would not secure the ends of justice. Only when leave to appeal has been actually granted would the question of bail (directly or indirectly) properly arise.
  7. Cunliffe, J. also recorded the factual observation supplied after argument that the Local Government had issued a temporary suspension order (protection pendente lite) in favour of the petitioner, and he commented on the apparent inconsistency between the executive's action and the Crown counsel's argument before the Court that the petition was without merit.

Holding and Implications

Holding: Application rejected. The High Court refused to (a) order the Chief Presidency Magistrate to extend the time for the petitioner to surrender, and (b) grant bail or an extension of time to surrender to enable the petitioner to pursue a petition to the Judicial Committee of the Privy Council.

Implications and immediate consequences:

  • The Magistrate's refusal to extend the surrender date was upheld; the petitioner was not granted further extension or bail by the High Court and must therefore comply with the sentence and surrender obligations imposed in accordance with existing orders.
  • The Court treated the Calcutta decision in 50 Cal 585 as binding on this point and did not accept that Section 561-A of the Code alters the specific Code provisions governing bail. The Court declined to create a new procedural exception allowing an extension in these circumstances.
  • No new broader precedent was declared by this judgment beyond the Court's confirmation of the existing principle (as derived from 50 Cal 585 and applied here) that, absent the grant of leave by the Judicial Committee or comparable further procedural stage, the High Court should not revive or exercise bail jurisdiction so as to frustrate its own orders. The decision is limited to the direct effect on the petition: the application for extension and bail was refused.

Disposition recorded in the opinion: "10. Application rejected." (as delivered by the Court).

R.M/R.K
Show full summary ...

    Babu Lal Chaukhani Accused v. Emperor Opposite Party.

    Cunliffe, J.:— We now propose to give our reasons for rejecting the petition made to us last Monday on behalf of one Babulal Chaukhani. The petitioner, it appears, together with a number of other persons was put on his trial before a Magistrate for offences under the Electricity Act and also for conspiracy. A number of convictions resulted, including the petitioner's. Then a visit was made to the Court of appeal with the result that, so far as the petitioner was concerned, his conviction for conspiracy was set aside, but the Court preserved his conviction for theft under the Electricity Act. On that conviction he was sentenced to undergo one year's rigorous imprisonment.

    2. As I understand it, the Court of appeal dealt with the cases of his co-accused and I believe these persons are now undergoing their punishment in jail. The petitioner approached us for the purpose of obtaining an extension of the time within which he would surrender to his bail before the Chief Presidency Magistrate. He had approached the Magistrate already who allowed him the concession of not surrendering until, I think I am right in saying, the 29th of the last month but beyond that the Magistrate was not prepared to go.

    3. The reason that the petitioner asked us to exercise the discretion of the Court in his favour was that he had instructed his solicitors in England to place a petition before the Judicial Committee of the Privy Council with regard to an appeal before their Lordships. He mainly relied upon a case decided comparatively recently by a Bench of the High Court of Allahabad. That was the decision of Sulaiman and Bannerji, JJ., in, 49 All 2471. The learned Judges there decided that they had inherent jurisdiction to stay the execution of their own order when the ends of justice so required it and they could admit to bail a person whose appeal had been admitted by the Privy Council. The judgments of the Court showed that they relied upon the provisions of a new section in the S. 561-A of the Cr PC which deals with the preservation of the inherent power of the High Court to make orders which might prevent the abuse of the process of the Court and so on. It is to be noted that the facts in that case were not analogous to the facts before us now, because in the course of their judgment the learned Judges made this observation:

    Before surrendering and before any appeal to their Lordships of the Privy Council was actually filed, the accused applied to this Court for bail on the ground that they have sent instructions to a Solicitor in England for lodging a petition for special leave.

    4. Then follow the important words:

    The High Court naturally refused to entertain the application so long as the accused had not surrendered. After information had been received that they had surrendered, the Bench i.e, the earlier Bench of the Allahabad High Court which dealt with the matter dismissed the application, but without prejudice to the right to bring another application in the event of special leave being granted by the Privy Council.

    5. It was presumably on the second attempt of the petitioner there that the learned Judges considered the exercise of their inherent power. Reliance was also placed upon a short decision by a Bench of the Madras High Court in 24 Mad 1612. That was a case, again, in which leave had already been granted by the Judicial Committee and the Madras High Court allowed bail in a substantial form with two sureties in two substantial amounts. So it will be seen that the facts there were not analogous with the facts before us at the present time. There is however a decision of a Bench of this High Court which dealt with a petition based on facts very similar to the petition before us now. That was the case in 50 Cal 5853, decided by the late Chief Justice of this Court, Sir Lancelot Sanderson sitting with Richardson, J. There, as I understand their judgment, the Court held that between the time of an appellate Court dealing finally, as far as this province is concerned with a criminal matter, and the time when a successful approach has been made to the Privy Council, the Court in matters of bail is functus officio. Reference was made to Subrahmania Ayyar's case. It was distinguished and in his judgment Richardson, J., said:

    So far as the present case is concerned, this Court is functus officio; it has no seisin of the case in any way; the case cannot again be brought before this Court for the purpose of leave being given to appeal.

    6. It was also held that in the circumstances such as this and in circumstances such as the Court was considering there, it was no question of the powers under Cl. 41, Letters Patent being successfully invoked. To my mind, the decision of this Court is binding on us. Nor do I think it is irreconcilable with either of the cases on which reliance was placed by the petitioner. In both the Madras and Allahabad cases, a further stage of a definite nature had been reached in the proceedings by the successful petitioner to the Privy Council to hear the petitioner's appeal, and as I apprehend what might well have been decided in this Court in the circumstances, that the further stage had been reached by the acceptance on the part of the Judicial Committee of the appeal, the powers of this Court in regard to bail would be revived and fresh seisin of the case with regard to the question of bail could be considered. After we had the benefit of Mr. Carden Noad's argument, we asked whether the Crown was represented and interested in this question of bail; whereupon we were told by Mr. Page, that he represented the Crown and we proceeded to hear him shortly both on merits and on the law. He argued with emphasis that there were not merits in the appeal and having regard to the leading decision in Dillett's case . 1888 12 AC 459, the chance of a successful approach in such circumstances to the Privy Council was a very remote one. It may be of interest to say that shortly after we had given our decision in regard to the rejection of this application, the Registrar of this Court was informed formally that a suspension order had been issued by the Local Government in reference to this matter. I believe it was a temporary suspension order lasting until such time as the actual petition for an order of permanent protection pendente lite could be considered.

    7. It is sometimes said in certain quarters that this Court has become hostile to the directions and orders of the Local Government I desire to say that nothing is further from the truth. This Court is always anxious to co-operate with the Local Government, if it can do so according to the ordinary rules of law and procedure and bearing in mind its constitutional duty to protect the subject when requiring its protection. It is, in my opinion, only when Government speaks with two voices that any trouble arises. I think, I have already noted that the counsel for the Crown, a counsel of great experience, publicly urged in this Court that there were no merits in this application whatever, and that the petitioner's chance of a successful approach to the Judicial Committee was very problematical. It is difficult to understand having regard to the fact that it is the same official of Government who instructed the learned Counsel for the Crown in this Court to argue in this way who shortly afterwards issued this executive protection order in favour of the petitioner. The two attitudes cannot be properly reconciled. It is obviously much in favour of a petitioning convicted criminal that he should have the benefit of a protection order such as this to carry him right through until the time the Privy Council decided to admit this appeal. There is, of course, attached to such an order no unpleasant requirements, such as the signing of a bail bond or the calling upon sureties in substantial amounts to be responsible for his necessary appearance in Court. I should imagine that such an order also leaves open a much larger door to the question which sometimes arises of the personal evasion by a convicted criminal of the sentence imposed on him. I only make these observations in what I regard as the public interest.

    Henderson, J.:— In rejecting this application we indicated that we would give our reasons in writing later. The petitioner was convicted of certain offences by the learned Chief Presidency Magistrate. He appealed to this Court. The appeal, which was heard by my Lord the Chief justice and Costello, J., was only partially successful and he was eventually directed to surrender to his bail and serve out a certain term of imprisonment. The petition before us was really under two heads. In the first place we were asked to interfere in revision with an order of the Chief Presidency Magistrate refusing to extend the time for the petitioner to surrender, in order that he might be able to apply for leave to appeal to the Judicial Committee of the Privy Council. It was conceded by Mr. Noad that there is no specific provision of the Code of Criminal Procedure which empowers a Magistrate to make such an order and we attach no importance to the fact that similar orders appear to have been made in the past. It is clearly the duty of the Magistrate to see that the orders of this Court are carried out and not to assist convicted persons in the evasion of them. It is impossible for us, sitting here in revision, to direct the Magistrate to pass what would be a most improper order. Then in the second place we were asked to make an order for bail ourselves or to allow the petitioner an extension of time to surrender. Now the case in 50 Cal 585 is a direct authority of this Court for the proposition that we have no jurisdiction to grant bail in a case of this kind. I need only say that I respectfully agree with that decision.

    8. It was, however, contended by Mr. Noad that the law has been altered by the enactment of Section 561-A of the Cr PC, and in support of his argument he relied on a decision of the High Court of Allahabad, 49 All 247. As the application for bail was rejected the decision is not a direct authority. The opinion of the learned Judges was based not upon the precise terms of the new section, but on the inherent jurisdiction of the Court which that section purports to preserve. In my opinion, it would be incorrect to interpret Section 561-A of the Cr PC, as having any reference to bail, a matter which is specifically provided for by the Code itself.

    9. Finally we were asked to extend the time for the petitioner to surrender under the power preserved to us by Section 561-A of the Cr PC. As at present advised I should not be prepared to say that we have no jurisdiction to do so, inasmuch as it is a matter outside the specific provisions of the Code, but I am strongly of opinion that no case has been made out for our interference on the merits. Such a direction would clearly not give effect to any order passed under the Code; on the other hand it would merely stultify an order of this Court. Nor would it prevent the abuse of the process of any Court. The only point which remains is to consider whether it would secure the ends of justice. In my opinion it would not. It is only when leave to appeal has actually been granted that any question of granting bail, either directly or indirectly, arises. It was for that very reason that the learned Judges of the Allahabad High Court rejected the petition which had been made to them.

    R.M/R.K

    10. Application rejected.

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    Comments

    Babu Lal Chaukhani Accused v. Emperor Opposite Party.
    (Aug 3, 1936)