JUDGMENT

1. We convicted the appellant Bashiruddin of an offence of cheating under Section 420, I.P.C., upon an appeal by the Local Government against his acquittal. He now applies for bail pending an appeal which he says he intends to file before His Majesty's Privy Council as soon as he reasonably can. The question is whether we have power to grant bail at this stage. There is a difference of opinion on this point, the Allahabad High Court holding there is power and the Calcutta High Court holding there is not. In our opinion the Calcutta High Court's view is right. Sir Barnes Peacock decided in the year 1869 in In re Kishen Sunder Bhattacharjee,1869 12 WR 47 that a sentence of imprisonment must commence from the time that it is passed unless the Court is expressly empowered to order it to commence from some future period. He was dealing with Section 421 of the Code of 1861 (corresponding to Section 426 of the present Code) and pointed out several instances where this is expressly authorized, and then said:

Section 421, Criminal P.C., authorizes an appellate Court in cases where an appeal is allowed to suspend the sentence, and if the appellant be in confinement for an offence which is bailable to order his release on bail. The fact that this power is expressly given to the appellate Court shows that it does not exist in cases in which it is not given.

2. The learned Chief Justice also pointed out that the section does not give this power either to a Court of original jurisdiction or to a Court in which no appeal is pending. We gather this is still the law from an observation of the Judicial Committee in Balmukund v. Emperor, 1915 AIR(PC) 29, where their Lordships were asked to suspend a sentence of death. Pending an appeal to their Board they observed:

Their Lordships are unable to interfere. As they have often said, this Board is not a Court of Criminal Appeal. The tendering of advice to His Majesty as to the exercise of His Prerogative of pardon is a matter for the Executive Government and outside their Lordships' province.

3. We take it to mean that there is no such thing as an inherent power to suspend sentences and that the only authority which can do so is a Court of Criminal Appeal before which an appeal is pending, unless of course there is express statutory provision to the contrary. Is there any difference in a case of bail? We do not think there is. It will be noticed that Sir Barnes Peacock speaks of the two as one in the Calcutta case, and after all an admission to bail after conviction operates as a suspension of sentence, and so although a mere order for suspension of sentence may not have the effect of setting a man at liberty, ah order for bail unquestionably has the effect of suspending the sentence. It is clear the two are interrelated and if there is inherent power in the one case there must be in the other also and vice versa.

4. The next point to observe is that the Code expressly renders a Court functus officio the moment the judgment is signed save as otherwise provided by this 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: Section 369, Criminal P.C.

5. Consequently there is no power to alter or modify the sentence once the judgment is signed unless it is expressly conferred, and as we have shown an order releasing a person on bail after conviction carries with it a suspension of sentence, and that, as Sir Barnes Peacock held, can only be done by an appellate Court while it is still seized of the proceedings. So far as the present matter is concerned, only two sections in the Code can by any stretch of language be said to confer this power, viz. Section 498 and Section 561A. So far as the former is concerned we cannot take the words ''in any case'' and ''whether there be an appeal on conviction or not'' to mean that the Court can act once it has reached finality. The Code must be read as a whole and since its scheme is to render a Court functus officio the moment judgment is signed the section cannot possibly mean that nevertheless the High Court has power to release an accused, on bail and thus suspend sentence when no tribunal is seized of the proceedings. It is to be noted that the Sessions Court is given a like power so far as the wording of the section goes, and it can hardly be pretended that the Sessions-Court can grant bail in these circumstances. It is obvious that the section cannot stand alone and that it must be interpreted in the light of recognized rules or procedure. In the absence of express statutory authority there can be no jurisdiction where there is no seisin. As regards Section 561-A it has repeatedly been held that the inherent power of a Court cannot be invoked with respect to any matter which is expressly dealt with by the Code. The question of bail has been expressly dealt with, and although the matter of bail pending an appeal to the Judicial Committee is not there, its provisions on the subject must be regarded as exhaustive. Moreover, we do not think there should be a resort to inherent power when there are other remedies available. The Local Government has ample power to suspend sentence and to release a convict on such terms as it chooses to fix. Inherent powers should be used sparingly.

6. What then is the meaning of their Lordships' direction in Queen-Empress v. Subramania Ayyar, 1897 20 ILR(Mad) 385 to the High Court to deal with the question of bail during the pendency of an appeal before the Board. A similar direction was given in a case from Ceylon reported in Loku Nona, Panchu Nona v. The King,1908 12 CalWN 140. It is to be observed that in both cases their Lordships had granted special leave to appeal and had therefore obtained seisin of the proceedings; whereas in Balmukund v. Emperor, 1915 AIR(PC) 29 leave had not been granted and so there was no seisin of the case. The distinction is of importance. When an appeal is allowed as of right the mere filing of the appeal vests the Court with jurisdiction, but in cases where no appeal is allowed there is no seisin until the Court chooses to take cognizance of the proceedings.

7. We think, that explains the difference in their Lordships' attitude in these two sets of cases. Once however leave is granted and seisin taken then Section 498 expressly empowers the High Court to act in the matter, not on its own motion but on behalf of their Lordships. Its jurisdiction to that limited extent revives. The highest judicial tribunal in the Empire is then seised of the proceedings and it directs a Court subordinate to it, as it has every right to do, to perform a function which it has authority to perform under this section. The wording of Section 498 is wide enough to cover that The High Court's seisin of the proceedings then revives for this limited purpose in accordance with well known rules of procedure. The Calcutta High Court decided in Tulsi Telini v. Emperor, 1924 AIR(Cal) 64 that once the High Court is functus officio it has no seisin of the case in any way, and so in the absence of any statutory provisions it has no jurisdiction to liberate an applicant on bail. A Full Bench of the Punjab Chief Court came to the same conclusion in Diwan Chand v. Emperor,1908 15 PR 1908 Cr. and the Nagpur Judicial Commissioner's Court in Hanmantrao v. Emperor, 1926 AIR(Nag) 228, so also the Sind Judicial Commissioner's Court in Pitumal v. Emperor,1921 AIR(Sind) 8. The only authority to the contrary is Emperor v. Ram Sarup, 1927 AIR(All) 97 and even then the learned Judges declined to act until special leave to appeal had been obtained. They told the applicant to renew his application after that had been done. So the decision is really obiter though naturally entitled to respectful consideration. The only reason given is that Section 561: A now gives the High Court inherent power to grant such applications. With the utmost respect we can-not accede to that position for the reasons we have just given. When there is no seisin there can be no jurisdiction, and when there is no jurisdiction there can be no resort to inherent powers: Queen-Empress v. Subramania Ayyar, 1901 24 ILR(Mad) 161 has been distinguished on two grounds in the case cited above. The first is that in that particular case the Madras High Court had power to grant speoial leave to appeal and consequently so long as it was capable of exercising such a power the-Court could not be regarded as functils officio. The Calcutta High Court in Tulsi Telini v. Emperor, 1924 AIR(Cal) 64 expressly reserves its right to decide this question when it arises in a suitable case. If that was the ground on which the learned Judges acted in Madras then of course the decision is no precedent in a case where, as here, there is no power to grant special leave.

8. The second point of distinction is that the Judicial Committee had already granted special leave to appeal in that case and the learned Judges who have distinguished the ruling on this ground are all agreed that the High Court then has power to grant bail. We quite agree that except on, the view we take this ought to make no difference. For the action of the Judicial Committee in granting special leave to appeal in itself neither gives jurisdiction nor takes it away from the Courts in India. Consequently, unless the question of seisin is of consequence, the jurisdiction must either be there or not there from the beginning. But we do not think that is the point. The Punjab Chief Court and the Calcutta High Court both proceed on the question of seisin which is also our view. We are of opinion that we have no jurisdiction to entertain the application at this stage. We express no view as to whether we would have jurisdiction to act in the absence of a direction from their Lordships. That point is not before us at the moment and we leave it open. The applicant can either obtain ah express direction from their. Lordships, as was done in the Madras and Ceylon cases, or after obtaining leave approach this Court again, in which ease, as we say, we shall have to consider our power to act in the absence of an express direction from their Lordships. The application is therefore rejected for the present.

9. There is another application as well. Bashiruddin asks for an order from us directing him to be treated as an A class prisoner. The rules are given in the Criminal Circulars of the Judicial Commissioner's Court as well as in the Jail Manual. We have no doubt that Bashiruddin falls within the class specified in Clause 10 of Section 2 of Circular 1-32, p. 94. He is a non-habitual offender of good character within the meaning of that rule and has by social status, education and habits of life been accustomed to a superior mode of living. We-would therefore have been prepared to make the direction but for the proviso in Clause 10(c). That contains a prohibition in the case of persons who have been convicted of an offence ''involving elements of personal greed'' or of ''a serious offence against property''. We are unable to say there are no elements of personal greed in this case and equally unable to hold that the offence is not a serious offence against property. We direct Bashiruddin to class B, but at the same time express our opinion that this is more properly a matter for the consideration of the Local Government and leave it at that, especially as we are told that class A was awarded in Haraprasad Bhargaw's case a few years ago.