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PETITIONER: TALAB HAJI HUSSAIN

       Vs.

RESPONDENT: MADHUKAR PURSHOTTAM MONDKARAND ANOTHER

DATE OF JUDGMENT: 07/02/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER

CITATION:  1958 AIR  376            1958 SCR 1226

ACT: Criminal Law-Bail-Cancellation-High Court’s inherent  power- Bailable  offence-Accused  released on bail  by  Magistrate- Subsequent Prejudicial conduct of accused-High Court’s Power to  cancel bail-Code of Criminal Procedure (Act 5 Of  1898), ss. 426, 496,497,498,56 1A.

HEADNOTE: The appellant was charged under s. 120 B of the Indian Penal Code and s. 167(8i) of the Sea Customs Act, i878, which were bailable  offences,  and was released on bail by  the  Chief Presidency  Magistrate under s. 496 of the Code of  Criminal Procedure.    An  application  made  subsequently   by   the complainant  for cancellation of the bail was  dismissed  by the  Magistrate  on the ground that under s. 496 he  had  no jurisdiction  to cancel the bail.  The  complainant  invoked the  inherent power of the High Court under s. 561A  of  the Code  and  the  High Court took the  view  that  under  that section it had inherent power to cancel the bail,and finding that on the material produced before the Court it would  not be safe to permit the appellant to be at large, it cancelled the bail.  On appeal to the Supreme Court:-- Held,  that  though  under s. 496 of the  Code  of  Criminal Procedure a person accused of a bailable offence is entitled to  be  released on bail pending his trial, if  his  conduct subsequent  to his release is found to be prejudicial  to  a fair trial, he forfeits his right to be released on bail and such  forfeiture  can  be made  effective  by  invoking  the inherent power of the High Court under S. 561A of the  Code. But  the  inherent  power has  to  be  exercised  sparingly, carefully  and with caution and only where such exercise  is justified by the tests specifically laid down in the section itself. Lala  jairam  Das & Others v. King Emperor, (1945)  L.R.  72 I.A. 120, distinguished.

JUDGMENT: CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 16 of 1958.

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Appeal  by special leave from the Judgment and  order  dated January  14,  1958,  of the Bombay High  Court  in  Criminal Application  No. 60 of 1958 arising out of the judgment  and order  dated  January  9,  1958,  of  the  Court  of   Chief Presidency  Magistrate  at  Bombay  in  an  application  for cancellation of bail in Case No. 608/W of 1957.                             1227 Purshottam Tricumdas, Rajni Patel and I. N. Shroff, for  the appellant. K.   J. Khandalwala and R. H. Dhebar, for respondent No. 1. 1958. February 7. The Judgment of the Court was delivered by GAJENDRAGADKAR  J.-The  appellant, along with(  others,  has been  charged under s. 120B of the Indian Penal Code and  s. 167(81)  of  the Sea Customs Act (8 of 1878).  There  is  no doubt  that the offences charged against the  appellant  are bailable  offences.   Under s. 496 of the Code  of  Criminal Procedure  the appellant was released on bail of Rs.  75,000 with one surety for like amount on December 9, 1957, by  the learned  Chief Presidency Magistrate at Bombay.  On  January 4,  1958, an application was made by the complainant  before the  learned  Magistrate for cancellation of the  bail;  the learned  Magistrate, however, dismissed the  application  on the  ground  that  under s. 496 be had  no  jurisdiction  to cancel  the  bail.   Against  this  order,  the  complainant preferred a revisional application before the High Court  of Bombay.    Another   application  was   preferred   by   the complainant  before  the same Court  invoking  its  inherent power  under  S. 561 A of the Code  of  Criminal  Procedure. Chagla C. J. and Datar J. who heard these applications  took the  view  that,  under  s. 561A of  the  Code  of  Criminal Procedure  the High Court had inherent power to  cancel  the bail  granted to a person accused of a bailable offence  and that, in a proper case, such power can and must be exercised in  the  interests  of justice.   The  learned  Judges  then considered  the material produced before the Court and  came to the conclusion that, in the present case, it would not be safe  to permit the appellant to be at large.  That  is  why the  application made by the complainant invoking  the  High Court’s  inherent  power  under  s. 561 A  of  the  Code  of Criminal  Procedure was allowed, the bail-bond  executed  by the  appellant  was  cancelled  and  an  order  was   passed directing  that  the  appellant be  arrested  forthwith  and committed to 156 1228 custody.   It is against this order that the  appellant  has come  to  this Court in appeal by  special  leave.   Special leave granted to the appellant has, however, been limited to the question of the construction of s. 496 read with s. 561A of  the Code of Criminal Procedure.  Thus the point  of  law which  falls  to  be considered in  the  present  appeal  is whether,  in  the  case of a person accused  of  a  bailable offence  where bail has been granted to him under s. 496  of the  Code  of Criminal Procedure, it can be cancelled  in  a proper  case by the High Court in exercise of  its  inherent power under s. 561A of the Code of Criminal Procedure?  This question  is  no doubt of considerable  importance  and  its decision would depend upon the construction of the  relevant sections of the Code. The material provisions on the subject of bail are contained in  ss.  496  to  498 of the  Code  of  Criminal  Procedure. Section 496 deals with persons accused of bailable offences. It provides that " when a person charged with the commission of  a  bailable  offence is  arrested  or  detained  without warrant  by an officer in charge of a police station  or  is

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brought before a court and is prepared at any time, while in the  custody  of  such  officer  or  at  any  stage  of  the proceedings  before  such court, to give bail,  such  person shall be released on bail." The section further leaves it to the  discretion of the police officer or the court if he  or it  thinks  fit  to  discharge the  accused  person  on  his executing a bond without sureties for his appearance and not to take bail from him.  Section 497 deals with the  question of  granting bail in the case of non-bailable  offences.   A person accused of a non-bailable offence may be released  on bail  but  he  shall  not be so  released  if  there  appear reasonable grounds for believing that he has been guilty  of an  offence punishable with death or imprisonment for  life. This is the effect of s. 497(1).  Sub-section (2) deals with cases  where  it appears to the officer or  the  court  that there  are  not reasonable grounds for  believing  that  the accused  has committed a non-bailable offence but there  are sufficient grounds for further enquiry into his guilt and it lays down that in such cases the accused shall, pending such 1229 enquiry,  be released, on bail or at the discretion  of  the officer or court, on the execution by him of a bond  without sureties  for his appearance as hereinafter provided.   Sub- section  (3) requires that, when jurisdiction  under  sub-s. (2) is exercised in favour of an accused person, reasons for exercising  such jurisdiction shall be recorded in  writing. Sub-section  (3A)  which has been added in 1955  deals  with cases  where  the’  trial of a person accused  of  any  non- bailable  offence is not concluded within a period of  sixty days  from  the first day fixed for taking evidence  in  the case  and  it provides that such person shall, if he  is  in custody  during the whole of the aid period, be released  on bail  unless  for  reasons to be  recorded  in  writing  the magistrate otherwise directs.  The last sub-section  confers oil  the  High Court and the Court of Session,  and  on  any other  court  in the case of a person  released  by  itself, power to direct that a person who hap, been released on bail under  any  of  the provisions of  this  section  should  be arrested  and committed to custody.  Section 498(1)  confers on  the High Court or the Court of Session power  to  direct admission  to bail or reduction of bail in all  cases  where bail  is  admissible under ss. 496 and 497 whether  in  such cases  there be an appeal against conviction or  not.   Sub- section  (2) of s. 498 empowers the High Court or the  Court of Session to cause any person who has been admitted to bail under  sub-s. (1) to be arrested and committed  to  custody. There is one more section to which reference must be made in this  connection  and  that is s. 426  of  the  Code.   This section  incidentally deals with the power to grant bail  to persons  who  have been convicted of  non-bailable  offences when  such  convicted persons satisfy the  court  that  they intend   to   present  appeals  against  their   orders   of conviction.  That is the effect of s. 426(2A) which has been added  in 1955.  A similar power has been conferred  on  the High Court under sub-s. (2B) of s. 426 where the High  Court is  satisfied  that the convicted person  has  been  granted special  leave  to appeal to the Supreme Court  against  any sentence  which  the High Court has imposed  or  maintained. Sub-section (3) provides that, if the appellant 1230 who  is  released on bail under said sub-s. (2) or  (2B)  is ultimately sentenced to imprisonment, the time during  which he  is so released shall be excluded in computing  the  term for  which he is so sentenced.  That briefly is -the  scheme of the Code on the subject of bail.

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There  is no doubt that under s. 496 a person accused  of  a bailable offence is entitled to be released on bail  pending his trial.  As soon as it appears that the accused person is prepared  to  give bail, the police officer  or  the  court, before whom he offers to give bail, is bound to release  him on such terms as to bail as may appear to the officer or the court  to  be  reasonable.  It would even  be  open  to  the officer  or the court to discharge such person on  executing his  bond as provided in the section instead of taking  bail from  him.  The position of persons accused of  non-bailable offences   is   entirely  different.   Though   the   recent amendments  made  in  the provisions of  s.  497  have  made definite  improvement in favour of persons accused  of  non- bailable  offences, it would nevertheless be correct to  say that  the grant of bail in such cases is generally a  matter in  the  discretion  of the authorities  in  question.   The classification  of  offences  into  the  two  categories  of bailable and non-bailable offences may perhaps be  explained on  the basis that bailable offences are generally  regarded as  less grave and serious than non-bailable  offences.   On this  basis it may not be easy to explain why, for  instance offences  under  ss. 477, 477A, 475 and 506  of  the  Indian Penal  Code should be regarded as bailable whereas  offences under  s. 379 should be non-bailable.  How. ever, it  cannot be disputed that s. 496 recognizes that a person accused  of a  bailable offence has a right to be enlarged on  bail  and that  is a consideration on which Shri Purushottam, for  the appellant, has very strongly relied. Shri Purushottam has also emphasized the fact that,  whereas legislature   has  specifically  conferred  power   on   the specified  courts  to cancel the bail granted  to  a  person accused  of a non-bailable offence by the provisions  of  s. 497  (5), no such power has been conferred on any  court  in regard to persons accused 1231 of bailable offences.  If legislature had intended to confer such  a power it would have been very easy for it to add  an appropriate sub-section under s. 496.  The omission to  make such a provision is, according to Shri Parushottam, not  the result  of inadvertence but, is deliberate; and if  that  is so,  it would not be legitimate or reasonable to clothe  the High  Courts  with the power to cancel bails in  such  cases under s. 561 A. It is this aspect of the matter which  needs careful examination in the present case. Section  561A was added to the Code in 1923 and it  purports to save the inherent power of the High Courts.  It  provides that nothing in the Code shall be deemed to limit or  affect the inherent power of the High Court to make such orders  as may be necessary to give effect to any order under the  Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice.  It appears that doubts  were expressed in some judicial decisions about the existence  of such inherent power in the High Courts prior to 1923.   That is  why  legislature  enacted this section  to  clarify  the position  that the provisions of the Code were not  intended to limit or affect the inherent power of the High Courts  as mentioned  in  s. 561A.  It is obvious  that  this  inherent power can be exercised only for either of the three purposes specifically mentioned in the section.  This inherent  power cannot naturally be invoked in respect of any matter covered by  the specific provisions of the Code.  It cannot also  be invoked  if its exercise would be inconsistent with  any  of the  specific  provisions of the Code.  It is  only  if  the matter in question is not covered by any specific provisions of  the Code that s. 561A can come into  operation,  subject

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further  to the requirement that the exercise of such  power must  serve  either of the three purposes mentioned  in  the said section.  In prescribing rules of procedure legislature undoubtedly  attempts  to  provide for all  cases  that  are likely to arise; but it is not possible that any legislative enactment  dealing with procedure, however carefully it  may be  drafted, would succeed in providing for all  cases  that may possibly 1232 arise  in  future.   Lacunae  are  sometimes  discovered  in procedural  law and it is to cover such lacunae and to  deal with cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent power in courts.  It would be noticed that it is only the High Courts whose  inherent power is recognized by s. 561A; and even  in regard to the High Courts’ inherent power definite  salutary safeguards  have been laid down as to its exercise.   It  is only where the High Court is satisfied either that an  order passed under the Code would be rendered ineffective or  that the process of any court would be abused or that the ends of justice  would riot be secured that the High Court  can  and must  exercise its inherent power under s. 561A.  There  can thus  be  no  dispute  about the scope  and  nature  of  the inherent  power  of the High Courts and the  extent  of  its exercise. Now  it  is  obvious that the  primary  object  of  criminal procedure  is  to ensure a fair trial  of  accused  persons. Every   criminal  trial  begins  with  the  presumption   of innocence  in favour of the accused ; and provisions of  the Code  are so framed that a criminal trial should begin  with and  be throughout governed by this essential presumption  ; but a fair trial has naturally two objects in view; it  must be  fair  to  the  accused and must  also  be  fair  to  the prosecution.  The test of fairness in a criminal trial  must be judged from this dual point of view.  It is therefore  of the  utmost importance that, in a criminal trial,  witnesses should  be able to give evidence without any  inducement  or threat  either  from  the prosecution  or  the  defence.   A criminal trial must never be so conducted by the prosecution as  would  lead  to the conviction of  an  innocent  person; similarly  the  progress  of a criminal trial  must  not  be obstructed by the accused so as to lead to the acquittal  of a really guilty offender.  The acquittal of the innocent and the  conviction of the guilty are the objects of a  criminal trial  and  so there can be no possible doubt that,  if  any conduct  on  the  part of an accused  person  is  likely  to obstruct a fair trial, there is occasion for the exercise of the inherent 1233 power  of  the High Courts to secure the  ends  of  justice. There  can be no more important requirement of the  ends  of justice than the uninterrupted progress of a fair trial; and it  is  for the continuance of such a fair  trial  that  the inherent powers of the High Courts are sought to be  invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses,  are obstructing the smooth progress of a fair trial.  Similarly, if an accused person who is released on bail jumps bail  and attempts  to run to a foreign country to escape  the  trial, that  again  would  be  a case where  the  exercise  of  the inherent  power  would be justified in order to  compel  the accused  to  submit to a fair trial and not  to  escape  its consequences  by  taking advantage of the fact that  he  has been released on bail and by absconding to another  country. In  other  words,  if  the conduct  of  the  accused  person

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subsequent  to  his  release on bail puts  in  jeopardy  the progress  of  a fair trial itself and if there is  no  other remedy  which  can be effectively used against  the  accused person, in such a case the inherent power of the High  Court can  be  legitimately invoked.  In  regard  to  non-bailable offences  there is no need to invoke such power  because  s. 497  (5) specifically deals with such cases.   The  question which we have to decide in this case is whether exercise  of inherent  power  under s. 561A against  persons  accused  of bailable  offences,  who  have been  released  on  bail,  is contrary to or inconsistent with the provisions of s.  496 of the Code of Criminal Procedure. Shri Purushottam contends that the provisions of s.    496 are plainly inconsistent with the exercise of inherent power under s. 561A against the appellant in the present case and; he  argues that, despite the order which has been passed  by the  High  (Court, he would be entitled to  move  the  trial court  for bail again and the trial court would be bound  to release him on bail because the right to be released on bail recognized  by  s. 496 is an absolute  and  an  indefeasible right;  and despite the order of the High Court, that  right would  still be available to the appellant.  If that be  the true position, the order passed under 1234 s.   561A  would  be rendered ineffective  and  that  itself would show that there is a conflict between the exercise  of the  said  power  and  the  provisions  of  s.  496.    Thus presented, the argument no doubt is prima facie  attractive; but  a close examination of the provisions of s.  496  would show  that there is no conflict between its  provisions  and the exercise of the jurisdiction under s. 561A.  In  dealing with this argument it is necessary to remember that, if  the power  under  s. 561 A is exercised by the High  Court,  the bail offered by the accused and accepted by the trial  court would  be cancelled and the accused would be ordered  to  be arrested  forthwith  and  committed to  custody.   In  other words, the effect of the order passed under s.    561A, just like the effect of an order passed under s.  497 (5) and  s. 498  (2), would be not only that the bail is  cancelled  but that the accused is ordered to be arrested and committed  to custody.   The order committing the accused to custody is  a judicial  order  passed  by a criminal  court  of  competent jurisdiction.   His commitment to custody thereafter is  not by reason of the fact that he is alleged to have committed a bailable  offence at all; his commitment to custody  is  the result of a judicial order passed on the ground that he  has forfeited  his bail and that his subsequent  conduct  showed that,  pending  the  trial, he cannot be allowed  to  be  at large.   Now, where a person is committed to  custody  under such an order, it would not be open to him to fall back upon his  rights  under  s.  496,  for  s.  496  would  in   such circumstances  be inapplicable to his case.  It may be  that there  is no specific provision for the cancellation of  the bond  and  the re-arrest of a person accused of  a  bailable offence; but that does not mean that s. 496 entitles such an accused person to be released on bail, even though it may be shown that he is guilty of conduct entirely subversive of  a fair  trial  in  the  court.   We do  not  read  s.  496  as conferring on a person accused of a bailable offence such an unqualified,  absolute  and  an  indefeasible  right  to  be released on bail, 1235 In  this  connection, it would be relevant to  consider  the effect  of the provisions of s. 498.  Under s.  498(1),  the High Court or the Court of Sessions may, even in the case of

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persons  accused  of bailable offences, admit  such  accused persons  to bail or reduce the amount of A bail demanded  by the  prescribed authorities under s. 496.  Shri  Purushottam no doubt’ attempted to, argue that the operative part of the provisions of s. 498(1) does not apply to persons accused of bailable offences; but in our opinion, there can be no doubt that this sub-section deals with cases of persons accused of bailable as well as non-bailable offences.  We have no doubt that,  even  in  regard  to  persons  accused  of   bailable offences,  if  the  amount of bail fixed  under  s.  496  is unreasonably high the accused person can move the High Court or  the  Court  of Sessions for reduction  of  that  amount. Similarly,  a person accused of a bailable offence may  move the  High Court or the Court of Sessions to be  released  on bail and the High Court or the Court of Sessions may  direct either that the amount should be reduced or that the  person may be admitted to bail.  If a person accused of a  bailable offence  is admitted to bail by an order passed by the  High Court or the Court of Sessions, the provisions of sub-s. (2) become  applicable to his case; and under  these  provisions the  High  Court  or  the Court  of  Sessions  is  expressly empowered to cancel the bail granted by it and to arrest the accused and commit him to custody.  This sub-section, as  we have  already  pointed out, has been added in 1955  and  now there  is no doubt that legislature has conferred  upon  the High Court or the Court of Sessions power to cancel bail  in regard  to  cases of persons accused  of  bailable  offences where  such persons have been admitted to bail by  the  High Court or the Court of Sessions under s. 498(1).  The  result is that with regard to a class of cases of bailable offences failing under s. 498(1), even after the accused persons  are admitted  to bail, express power has been conferred  on  the High  Court  or  the Court of Sessions to  arrest  them  and commit them to custody.  Clearly then it cannot be said that the right of a 157 1236    person accused of a bailable offence to be released on bail  cannot be forfeited even if his conduct subsequent  to the  grant  of  bail is found to be prejudicial  to  a  fair trial. It would also be interesting to notice that, even before  s. 498(2) was enacted, there was consensus of judicial  opinion in favour of the view that, if accused persons were released on bail under s. 498(1), their bail-bond could be  cancelled and  they could be ordered to be arrested and  committed  to custody under the provisions of s. 561 A of the Code  [Mirza Mohammad Ibrahim v. Emperor (1), Seoti v. Rex (2 ),  Bachchu Lal  v. State (3), Muunshi Singh v. State (4) and The  Crown Prosecutor, Madras v. Krishnan (5) ]. These decisions  would show  that  the exercise of inherent power  to  cancel  bail under  s.  561A was not regarded as  inconsistent  with  the provisions  of s. 498(1) of the Code.  It is true  that  all these  decisions referred to cases of persons  charged  with non-bailable  offences;  but  it  is  significant  that  the provisions of s. 497(5) did not apply to these cases and the appropriate orders were passed under the purported  exercise of  inherent power under s. 561A.  On principle  then  these decisions  proceed on the assumption, and we think  rightly, that  the exercise of inherent power in that behalf was  not inconsistent with the provisions of s. 498 as it then stood. It would now be relevant to enquire whether, on principle, a distinction  can be made between bailable  and  non-bailable offences in regard to the effect of the prejudicial  conduct of accused persons subsequent to their release on bail.   As

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we  have  already  observed, if a fair  trial  is  the  main objective  of  the  criminal procedure, any  threat  to  the continuance of a fair trial must be immediately arrested and the  smooth  progress of a fair trial must be  ensured;  and this can be done, if necessary, by the exercise of  inherent power.   The  classification of offences into  bailable  and non-bailable on which are based the different provisions  as to the grant of bail would not, in our opinion, have any (1) A.I.R. 1932All.534.       (2) A.I. R. 1948 All. 366. (3) A.I.R. 1951 All. 836.     (4) A.I.R. 1952 All. 39. (5)I.L.R. 1946 Mad. 62.                             1237 material  bearing  in dealing with the effect  of  the  sub- sequent  conduct of accused persons on the continuance of  a fair  trial itself.  If an accused person, by  his  conduct, puts  the fair trial into jeopardy, it would be the  primary and  paramount  duty of criminal courts to ensure  that  the risk  to the fair trial is removed and criminal  courts  are allowed to proceed with the trial, smoothly and without  any interruption or obstruction ; and this would be equally true in cases of both bailable as well as non-bailable  offences. We,  therefore, feel no difficulty in holding that,  if,  by his  subsequent  conduct,  a person accused  of  a  bailable offence  forfeits  his right to be released  on  bail,  that forfeiture  must be made effective by invoking the  inherent power  of  the  High  Court  under  s.  561A.   Omission  of legislature  to make a specific provision in that behalf  is clearly  due  to  oversight or inadvertence  and  cannot  be regarded  as deliberate.  If the appellant’s  contention  is sound, it would lead to fantastic results.  The argument  is that  a  person accused of a bailable offence  has  such  an unqualified  right  to be released on bail that even  if  he does  his worst to obstruct or to defeat a fair  trial,  his bail-bond  cannot be cancelled and a threat to a fair  trial cannot  be arrested or prevented.  Indeed Shree  Purushottam went  the  length  of suggesting that in  such  a  case  the impugned subsequent conduct of the accused may give rise  to some  other  charges  under the Indian Penal  Code,  but  it cannot  justify  his re-arrest.  Fortunately that  does  not appear  to  be  the  true legal  position  if  the  relevant provisions  of the Code in regard to the grant of  bail  are considered  as a whole along with the provisions of s.  561A of the Code. It now remains to consider the decision of the Privy Council in  Lala  Jairam Das & Others v. King Emperor  (1),  because Shri  Purushottam’ has very strongly relied on some  of  the observations made in that case.  According to that decision, the  provisions of the Code of Criminal Procedure confer  no power on High Courts to grant bail to a person who has  been convicted  and  sentenced to imprisonment and  to  whom  His Majesty (1)  (1945) L.R. 72 I.A. 120,132. 1238 in  Council  has given special leave to appeal  against  his sentence and conviction.  Divergent views had been expressed by the High Courts in this country on the question as to the High  Courts’ power to grant -bail to convicted persons  who had been given special leave to appeal to the Privy Council; these  views  and the scheme of the Code in  regard  to  the grant  of bail were examined by Lord Russel of Killowen  who delivered  the  judgment of the Board in Lala  Jairam  Das’s case (1).  The decision has thus no application to the facts before   us;   but  Shri  Purushottam  relies   on   certain observations made in the judgment.  It has been observed  in that judgment that " their Lordships take the view that  Ch.

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XXXIX of the Code together with s. 426 is, and was intend to contain,  a complete and exhaustive statement of the  powers of  a  High Court in India to grant bail, and  excludes  the existence  of any additional inherent power in a High  Court relating  to  the subject of bail ".  The  judgment  further shows  their  Lordships’  opinion, like the  High  Court  of Justice  in  England, High Courts in India  would  not  have inherent  power  to grant bail to a  convicted  person.   It would  be clear from the judgment that their Lordships  were not called upon to consider the question about the  inherent power of the High Courts to cancel bail under s. 561A.  That point did not obviously arise in the case before them.  Even so,  in  dealing with the question as  to  whether  inherent power  could be exercised for granting bail to  a  convicted person, their Lordships did refer to S. 561A of the Code and they  pointed  out that such a power  ,,cannot  be  properly Attributed   to  the  High  Courts  because  it  would,   if exercised,  interrupt  the  serving of  the  sentence;  and, besides  it  would,  in  the  event  of  the  appeal   being unsuccessful,  result in defeating the ends of justice.   It was also pointed out that if the bail was allowed in such  a case, the exercise of the inherent power would result in -an alteration  by  the  High Court of  its  judgment  which  is prohibited  by  s. 369 of the Code.  In other  words,  their Lordships examined the provisions of s. 561A and came to the (1) (1945) L.R. 72 I.A. 120, 132,                             1239 conclusion  that  the  power to grant bail  to  a  convicted person would not fit in :with the scheme of Chapter XXXIX of the  Code read with s. 561A.  In our opinion,  neither  this decision nor even the observations on which Shri Purushottam relied can afford any assistance in deciding the point which this  appeal has raised before us.  Incidentally we may  add that  it  was as a result of the observations  made  by  the Privy  Council  in  that case that s. 426 of  the  Code  was amended in 1945 and power has been conferred on  appropriate courts  either to suspend the sentence or to grant  bail  as mentioned in the several subsections of s. 426.  That is how s.  426(2A) and (2B) now deal with the subject of bail  even though  the  main section is a part of  Chapter  XXXI  which deals with appeals, references and revisions. We  must accordingly hold that the view taken by the  Bombay High  Court  about its inherent power to act  in  this  case under s. 561 A is right and must be confirmed.  It is hardly necessary  to add that the inherent power conferred on  High Courts  under  s.  561A  has  to  be  exercised  sparingly., carefully  and with caution and only where such exercise  is justified  "by  the  tests specifically  laid  down  in  the section  itself.  After all, procedure, whether criminal  or civil,  must serve the higher purpose of justice; and it  is only  when  the ends of justice are put in jeopardy  by  the conduct  of  the  accused that the inherent  power  can  and should  be exercised in cases like the present.  The  result is that the appeal fails and must be dismissed. Appeal dismissed. 1240