K. M. Nanavati v. The State of Bombay

Judgment

uec·11

SINHA C. ,J.-This mattt•r has pla.ce<l before• the Constitution Bench in rather extrnordinary cir cumsta.ncPs, a.8 will prc"eut.ly :ippear. It involve8 the question as to what is tho content of the power con ferred on the Gornrnor of a. State under Art. 161 of the Constitution; and whet.her the order of the Governor of llombn.y da.tPd :\'larch 11, 1960, impinges on thti judicial powPrs of this Court., with pn,rticiilar mforence to its powerH uudt•r Art. 142 of the Constitution.

For the determina.tiou of tho constitutional issue raised in this case, it i• 110t necessary to go into the merits of the case against the petitioner. 1t is only necessary to state tho following facts in order to appreciate the factual backgrouud of the ordi<r of the GovenH,r of Bombay aforesaid impugned in this co.se. The petitioner was Second in Comma.nd of I. N. S. Mysore, whioh ca.me lo Bombay in the beginning of arrested in connection vith a charge of murder under s. 302 of the Indian Penll.l Code. He was produced before the Addit,ional Chief Presidency Magistrate, The State of Greater Bombay, in connection with that charge. on April 28, 1959. The Magistrate remanded him to police custody on that day. On the following day (April 29, 1959) the Magistrate received a letter from the Flag Officer, Bombay, to the effect that he was ready and willing to take the accused in naval custody as defined in s. 3(12) of the Navy Act, 1957, in which custody he would continue to be detained ·under the orders of the Na val Provost Marshall in exercise of his authority under s. 89(2) and (3) of the Navy .Act.

Thereupon the Magistrate made the order directing that the accused should be detained in the Nav·al Jail and Detention Quarters in Born bay. The Magislmte has observed in his order that he had been moved under the instructions of the Government of India.

The petitioner continued.to remain in naval custody all along. In due course, he was placed on trial b<·fore the Sessions Judge, Greater Bombay. The trial was by a jury. The jury returned a verdict of 'not guilty' by a majority of eight to one. The learned Sessions Judge ma.de a reference to the High Court uHder s. 307 of the Criminal Procedure Code, disagreeing with the verdict of the jury; The reference, bdng Cr. Ref. No. 159 of 1959, was heard by a Division . Bench of the Bombay High· Court. The High Court accepted the reference and convicted the petitioner under s. 302 of the Indian Penal Code and sentenced him to imprisonment for life, by its judgment and order dated March 11, 1960. On the same dav, the Governor of Bombay passed the following order":-

" In exercise of the powers conferred on me by Article 161 of the Constitution of India, I, Shri Pra.

kasa, Governor of Bombay, am pleased hereby to suspend the sentence passed by the High Court of Bombay on Commander K. M. Nanavati in Sessions Case No. 22 of IV th Sessions of 1.959 un ti! the appeal intended to be filed by him in the Supreme Court against his conviction anct'Sentence is disposed of and Lo detained in the Naval Jail Custody in I. N. S. Kunjali ".

In pur8uance of the judgment of the High Court, a writ iS!!ued to the Sessions Judge, Groater Bombay, communicating the order of the High Court convict ing and sentencing the petitioner as aforesaid. The Sessions Judge issued a. warrant for t.he arrPst of tho accused and sent it to th<> police officer in charge of the Citv Sessions Court for Greater Bombay for exe cution.· :rhe warrant was returned unse~ved with the report that the warrant could not be served in view oft he order set out above passed by the Governor of Bombay suspending the seutnnce up·Jn the petitio ner. The Sessions Judge then returned the writ to gethor with the uuexecuted warrant l'l the High Court.

In the meantime an application for leave to appeal to the Supreme Court was made soon after the judg m(•.nt was pronounced by •the High Court a.nd the matter was fixed for hearing on :11arch 14, 1960. On that day the matter of the unexecutrcl warrant was pla,ced before the Division Bench_ which directed that, in view of the unusual and u.nprecodented situation ariaing out of the order of the Governor the matter should be reforred to a. Jargor Bench. Notice was accordingly issued to the State of Bombay and to the accused person. A Special Bench of five Judges of that Court heard the matter. The Special Bench premitted two Advocates, Mr. Kotwa.l a.nd Mr. Pra.n jpe, to appear on behalf of the Western India. Advo ca.teo' Association. Similarly, Mr. Peerbhoy was also permitted to appear along with Mr. Latifi on behalf of the Bombay Bar Association. They were heard as amfru.s cu.riae in view of the fact tha,t the Advocate General for the State of Bombay and the counsel for accused wore both sailing in the same boat, tha.L is to 88.)', both of them were appearing to support the order made by the Governor. In view of tho great import ance of the issues involved, the Court allowed those Advocates to represent the other ·view point. The Ad'.:ocale General of Bombay as also counsel for the locus standi. The Advocate General of Bombay also Taised a preliminary objection to the hearing of the matter by the Special Bench on the ground that it had no jurisdiction . to examine the validity of the action taken by the Governor, because there was no judicial proceeding then pending. The criminal reference aforesaid, to which the State and the accus ed were parties, had already been disposed of and none of those parties had raised any grievance or objection to the order of the Governor impugned before the Court. The Court overruled that objection in view of the fact that the writ issued by the Court had been returned unexecuted on grounds which could be exa mined- by the Court as to the validity of the reasons for the return of the warrant unexecuted. The High Court then examined the validity of the action taken by the Governor and came to the conclusion that it had the power to examine the extent of the Governor's power under Art, 161 of the Constitution and whether it had been validly exercised in the instant case. After an elaborate examination of the questions raised before it, the Special Bench came to the conclusion that the order passed by the Governor was not in valid. It also held that the condition of the suspen sion of the order that the petitioner .be detained in naval custody was also not unconstitutional, oven though the accused could not have been detained in Naval Jail under the provisions of the Navy Act, after he had been convicted by the High Court. The Court also held negativing the contention raised on behalf of the Advocates appearing as amicus curiae, that the order of the Governor did not affect the power of the Supreme Court with particular reference to r. 5 of 0. XXI of the Rules of the Supreme Court, which will be set out in full hereinafter. The reason for this conclusion, in the words of the High Court, is:-

" As the sentence passed upon the accused has been suspended, it is not necessary for the accused to surrender to his sentence. Order XXI, r. 5, of the The High Court also overruled the plea of mala fides. In lhe result, tho High Court held that e.s the order roe.de by the Governor had not been shown to be unconstitutional or contrary to law, the warrant should not be reissued until the appeal to be filed in the Supreme Court ha.cl been disposed of, unless the order ma.de by the Govnnor stands cancelled or with drawn before that event.

The petitioner filed his petition for specie.I leave in this Court on April 20, 1960, and also mu.de e.n applica tion on April 21, 1960, under 0. XLV, rr. 2 and 5 of the Supreme Court Rules for exemption from compliance with 0. XXI, r. 5, of those Rules. It was stated in the petition that, soon after his arrest, the peritioner throughout the trial before the Sessions Court and the . hearing of the reference in the High Court, had been in naval custody and continued to be in that custody, that he had been throughout of good behaviour and was ready and willing to obey any order of this Court., but that the petitioner " not being a free man it was not possible for him to comply with the requirements of r. 5 of 0. XXI of the Supreme Court Rules ...... ". He, therefore, prayed that he may be exempted from compliance with the aforesaid rule and that his pet.i tion for specie.I leave tu appeal be posted for hearing without his surrendering to his sentence. On April 25, 1960, the special leave petition e.hlllg with the applica tion for exemption aforesaid was placed before a Division Bench which pe.l!Sed the following order :-

""This is a petition for special leave against the order passed by the Bombay High Court on reforencP, convicting the petitioner under s. 302 of the Indian Penal Code and sentencing him to imprisonment for life. Afoug with hiR petition for special leave a.n application has been filed by the pet,itioner praying that he may be exempted from surrendering under 0. XXI, r. 5, of the Rules of this Court. His contention in this e.ppliration is that he is ready and willing to obey any order that this Court may pass but that as a result of the order passed by the Governor of Bombay important ground in support of his plea that he may be exempted from complying with the relevant rule of this Court. This plea immediately raises an important constitutional question about the scope and extent of the powers conferred on the Governor under Art. 161 of the Constitution and that is a constitutional matter which has to be heard by a Constitution Bench of this Court. We would accordingly direct that notice of this application should be served on the Attorney. General and the State of Bombay and the papers in this application should be placed before the learned Chief Justice to enable him to direct in due course, in consultation with. the parties concerned, when this applic~tion should be placed for hearing before the Constitution. Bench ".

After the aforesaid order of this Court, it appears that on July 6, the petitioner swore an affidavit in Bombay to the effect that his application aforesaid for exemption from compliance with the requirements of r. 5 of 0. XXI of the Rules had been made under a misapprehension of the legal position and that the true position bad been indicated in the judgment of the Special Bench of the Bombay High Court to the effect that r .. 5 of 0. XXI of the Rules would not apply to his case in view of the Governor's order aforesaid and that, therefore, his special leave petition be directed to be listed for admission. It is apparent that this change in the petitioner's position as regards the necessity for surrender is clearly an a1'terthought._ Certainly, it came after the Division Bench had direct ed the constitutional matter to be heard as a prelimi nary question.

That is how the matter has come before us. Before we heard the learned Advocate General of Bombay, and the learned Additional Solicitor-General on behalf of the Union of India, we enquired of Shri J. B. Dadachanji; Advocate for the petitioner, whether the petitioner was prepared to get himself released from the Governor's order in order to present himself in this in a position to make a categorical answer and preferr ed to have the constitutional question determined on its merits. We had the assistance of l\fr. C. B. Aggar waln, who very properly volunteered his services as amicus curiae to rnpresent the other ·view point. In this Court also the sit'uation was the same as iu the High Court, uamely, that unless there was an amicus curiae to represent the opposite view point, the parties represented before u~ were not contesting the validity of the Governbr's order. Both here and in the High Court, it was at the instance of the Court itself that the matter has been placed for hearing on the preli minary question before dealing witb the meritR of the petitioner's ci;,se.

The learned Advocate General of Bombay has argu ed with his usual vehemence and clarity of expression that the power of pardon, including the lesser power of remission and suspension of a sentence etc. is of a plenary character and is unfettt>red; that it is to be exercised not as a matter of course, but in special cir cumstances requiring the interventio11 of the Head of the Executive; that tho pow!'r could be exercised at any time aftrr the commission of an offence; that. . tLis power being in tho nature of exercise of sovert>ign power is vested in the Head of the State and has, in some respects, been modified by statute; that the power of pardon may be exercis!'d uncouditionally or subject to certain conditions to be imposed by tho authority exerciRing the power; that such conditions should not b•3 iHegal or impossible of performance or against public policy. 1t was further argu!'d that the power of pardon is vested in the Head of tho State as an index of sovereign authority irrespective of the form of Govemment. Thus the President of the Uni ted States of America and Governors of States, besides, in some cases Committees, ho.vo been vested with thoso powers, which cannot be derogated from h)' a Legisla ture. So far as India is concerned, before the Consti tution ca.me into effect such powers have been regula ted by statu!A', of course, subject to the power of the contained in Art. 72 in respect of the President, and Art. 161 in respect of the Governor of a State. Arti cles 72 and 161 are without any words of limitation, The Stal• of unlike the power of the Slipreme Court contained in Arts. 136, 142, 145 and other Articles of the Constitu tion. Hence, what was. once a prerogative of the· Crown has now crystallized into the common law of England and statute in India, for example, s. 401.· of the Code of Criminal Procedure, or Arts. 72 and 161 of the Constitution. He particularly emphasised tba,t the two powers, namely, the power of the Executive j,o grant pardon, iri its comprehensive sense, and of the Judiciary are completely apart and separate and there cannot be any question of a conflict between th<'m;

because they are essentially different, the one from :,h., other. The power of pardon is essentially an executiva action. It is exercised in aid of justice and not in defi.

ance of it. With reference to the particular question, now before us, namely, how far the exercise of the exe culive power of pardon contained in those two Articles of the. Constitution can be said to impinge on the judicial functions of this Court, it was argued that r. 5 of 0. XX! of the Rules of this Cour.t postulates the existence of a sentence of imprisonment and, as in . this case, as a result of the Governor's order, there is no

such selltence r.unning there could not be any ques tion· of the one trespassing into the field of the .o ther.

Rule 5 aforesaid.· of.•. this Court represents the · well.

settled practice of this Court, as ()f other Courts, that .a person convicted and sentenced tq ..a term of im pri sonment should uot be permitted· to be fo: cqntempt of the order of this Court, tha\ is to say, shoold:··not be permitted to move the appellate court without":SUr, !endering to the sentence. But the petitioner i~ nbt m such contempt, because r. 5 did not apply to him.

The order of sentence ag~in,,t him having been sus pu1.ded, he is not disobeying any rule or process of th is Court or of the High Court. The power of the Supreme Court to make rulec :s subject to two limita- . tions, namely, (I) to any law made by Parliament_ and (2) t.hu approval of the President. On the other hand, sovereign State to gra.nt pa.rdon etc., a.nd are not sub ject to any limitations. There could, therefore, be no

TM State of conflict between these two, and if there were any con flict a.t a.II, the limited powers of the Court must yield to the unlimited powers of the Executive. As regards the condition imposed by the Governor, subject. to which the sentence pa.ssed against the petitioner ha.d been suspended, the condition was not illegal, because it did not offend against any peremptory or mandatory provisions of law. It is not the same thing to say that the condition was not authorised by law as to say that the condition was illegal, in the sense that it did what was forbidden by law. We were referred to the various prnvisions of the Indian Navy Act (Act LXII of 1957) to show that there were no provisions which could be said to have been contravened by the condition attached to the order of suspension by the Governor. Furthermore, the naval custody in which the petitioner continues ha.d been submitted to by tho petitioner and what has been consented to cannot be illegal, though it may not have been authorised by law. Lastly, it was contended that the observation of the High Court in the last paragraph of its judg ment was entirely uncalled for, because once it is held, · as wa.s held by tho High Court, that the Governor's order wa.s not unconstitutional, it was not open to the High Court to ma.ke observations which would suggest that the Governor had exercised his power impro perly. If the exercise of the power by the Governor is not subject to any conditions, and is not justiciable, it wa.s not within tho power of the High Court even to suggest that the Governor should not have passed the order in queBtion. The lea.med Additional Solici tor General adopted the able arguments of the Ad vo cate General and added that, in terms, there was no conflict between Arts. 142 and 161 of the Constitution.

Mr. C. B. Aggarwala, to whom the Court is obliged for his able asAistancc to tho Court, argued that the exercise of the rule ma.king power by the Supreme Court is not a mere statutory power, but is a constitu tional privilege; that the Supreme Court alone could lay down rules and conditions in accordance with which applications for special leave to appeal to the Court could be entertained ; that the material rule governing the present case was made under the cons titutional power of the Supreme Court under Art. 145 and that the Advocate-General was in error in descri bing it as subordinate legislation; that the fact that Sinha C. ]. the rules ·ma.de• by this Court under Art. 145 of the Constitution require the approv!tl of the President cannot convert them into rules made under a law enacted in pursuance of power conferred, ·either by Art. 123 or Art. 245 of the Constitution; that the underlying idea behind r. 5 of 0. XXI of the Rules of this Court is to see that the petitioner to this Court or the appellant should remain under the directions of the Court ; that the Governor by passing the order in question has deprived the Supreme Court of its power in respect of the custody of the convicted person; that the power under Art. 161 has to be exercised within the limits laid down by Art. 154 of the Constitution.

It was also argued that the petitioner could have got his relief from this Court itself when he put in his application for special leave and that in such a situa tion the Executive should not have intervened. In other words, the contention was that, like the Courts of Equity, which intervened in aid of ·justice when law was of no avail to the litigant, the Executive also should exercise their power only where the courts have not been clothed with am pie power to grant adequate relief in the particular circumstances governing the case. It was further argued that on a true construction of the provisions of the law and ·the Constitution, it -would appear that the Governor's power extends only up to a stage and no more, that is to say, the Governor could suspend the operation of the sentence only until the Supreme Court was moved by way of special leave and then it was for the Court to grant or to refuse bail to the petitioner. Once the Court has passed an ordei:_ in that respect, the Governor could not intervene so as to interfere with the orders of the Court. Alterna tively, it was argued that, even assuming that an order of suspension in terms made by the Governor, applicatiqn for leave to appeal to this Court, such an ordor could be passed only by the President, a.nd not by the Governor. ln any view of the matter, it was further argued, the Governor could pass an order con templated by Art. 161, but could not add a condition, as he did in tho present case, which was an illegal condition. It was further argued that the generality of the expressions used in s. 401 of the Criminal Pro cedure Codo has to be cut down by the specific provi sions of s. 426 of that Code. In other words, when there is au _appeal pending or is intended to be pre ferred, during that limited prriod, the trial court itself or the appellate court, has to exercise its judicial function in the matter of granting bail etc.; and the a.ppropria.t-0 Government is to stay its hands during that time.

Before dealing with the ma.in question a.s to what is the scope of the power conferred upon the Guvernor by Art. 161 of the Constitution, it will bo convenient to roview in a. genera.I way the law of pardon in the background of which the controversy has to be determined. Pardon is one of the many prerogatives which have boon recognised since time immemorial as being vested in the Hovoreign, wherever the sovere ignty might lio. Whether the sovereign happened to be a.n absolute monarch or a. popular republic or a. constitutional king or qneen, sovereignty has always hL>en associated with tho source of power-tho power to appoint or diRmiss public servants,. tho power to declaro war aud conclude peace, the power to legislate and the power to adjudicate upon a.II kinds of dis putes. Tho King, using the term in a most compre hensive sense, has been the symbol pf the sovereignty oft.he State from whom oma.na.te all power, authority and jurisdictionH. As kingship was supposed to ho of divine origin, nn absolute king had no difficulty in proclaiming and enforcing his divine right to goYern, which includes the right to rule, to administer and to dispense justice. It is a. historioa.l fa.ct that it was this claim of divine right of kings that brought the Stuart Kings of England in conflict with Parliament a.a the absolute power in all respects, and Parliament, as the champion of popular liberty, uJt.imately emerged the constitutional head of the Government in the person of the King who, in theory, wields all the power, but, in practice, laws are enacted by Parliament, the exe cutive power vests in members .of the Government, collectively called th'e Cabinet, and judicial power is vested in a Judiciary appointed by the Government in the name of His Majesty. Thus, in theory, His Majesty or Her Majesty continues to appoint the Judges of the higest courts, the members of the Government and· the public ;.;13rvants, who hold office during the pleasure of the sovereign. As a result of historical processes emerged a clear cut division of governmental functions into executive, legislative and judicial. Thus was established the " Rule of ·Law" which has been t.he pride of Great Britain and which was highlighted by Prof. Dicey. The Rule of Law, in contradistinction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government. There has been a progressive increase in the power, authority and jurisdiction of the three wings of the Government and a corresponding diminution of absolute and arbitrary power of the King. It may, therefore, be said that the prerogatives of the Crown in England, which were wide and varied, have been progressively curtailed with a corresponding increase in the power, authority and jurisdiction of the three wings of Government, so much so that most of the prerogatives of the Crown, though in theory they have continued to be vested in it, are now exercised in his name by the Executive, the Legislature and the Judiciary. This dispersal of the Sovereign's absolute power amongst the three wings of Government has now

K. M. Non•v•li celebrated decision of the House of Lords in· the case

The si.¹, of of Attorney General v. De Keyser's Royal llotel, Limited

(')which involved the right of the Crown by virtue of its prerogative, to take possesHion of private pro perty for administrative purposes in connection with the defence of the realm, it was held by the House of Lords that the Crown was not eiltitled by virtue of its prerogative or under any statute, to take possession of prnperty belonging to a citizen for the purposes a.fore. said, without paying compensation for use a.nd occu pation.

It wa.s argued by Sir John Simon,'K. C., for the res. pond en ts that:-

" The preroga.ti ve ha.s been defined by a learned author as •the residue of discretionary or a~bitra.ry authority which at a.ny given time is legally lt>ft in the hands of the Crown'. lt is tho ultimate resource of the executive, and when there exists a statutory provision covering precisely the same ground there is no longer any room for the exercise of the Roya.I Pre rogative. lt ha.s been ta.ken a.way by necessary impli cation because the two rights cannot live together''. (See p. 518 of the Report).

This argument on behalf of the respondents appears to have been accepted by Lord Dunedin, who deliver ed the lea.ding opinion of the House in these terms :-

"The prerogative is defined by a. learned consti tutionR.l writer as •the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown '. Inasmuch as the Crown is a. party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before tho Act could be effected by tho prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that., and by that Act, to the prero. gative being curtailed". (See p. 526 of the Heport). This position has been recognised in Halsbury's Laws

"The prerogative is thus created and limited by the common law, and the Sovereign can claim no The siate of · prerogatives except such as the law allows, nor such as are contrary to Magna Carta, or any <'ther statute, .

or to the liberties of the subject.

The courts have jurisdiction, therefore, to inquire into the existence or extent of any alleged prero-

. " ' gat 1ve............. . .

We have thus briefly set out the history of the genesis and development of the Royal Prerogative of Mercy because Mr. Seervai has strongly emphasised that the Royal Prerogative of Mercy is wide· and absolute, and can be exercised at any time. Very elaborate arguments were addressed by him before us on this aspect of the matter and several .English and American decisions were cited. In so far as his argu ment was that the power to suspend the sentence is a part of the larger power of granting pardon it may be relevant to consider incidentally the scope and extent of the' said larger power; but, as we shall presently point out, the controversy raised by the present petition lies within a very narrow compass; and so concentration on the wide and absolute character of the power to graqt pardon and over-emphasis on judicial decisions which deal directly with the said question would not be very helpful for our present.

purpo~e. In fact we apprehend that entering into an elaborate discussion about the scope and effect of the said larger power, in the light of relevant judicial decisions, is likely to create confusion and to distract attention from the essential features of the very narrow point that falls to be considered in bhe present case. That is why we do not propose to enter into a discussion of the . said topic or to refer to the several decisions cited under that topic.

Let us now turn to· the law on the subject as it obtains in India since the Code of Criminal Procedure was enacted ln 1898. Section 401 of the Code gives power to the executive to suspend the execution of which the person sentenced e.ccepts. Section 402 giveA power to the executive without the consent of the per

to son sentenced commute a. sentence of dee.th into imprisonmert for life e.nd e.lso other sentences into sentences less rigorous in nature. In e.ddition the Governor-Genera.I had been delege.ted the power to exercise the prerogative power vesting in His Ma.jesty. Sub-section (5) of s. 401 a.lso provides that nothing contained in it sha.11 be deemed to interfere with the right of His Ma.jesty, or the Governor.Genera.I when such right is delegated to him, to gra.nt pa.rdons, rep rieves, respites or remissions of punishment. This position continued till the Constitution ca.me into force. Two provisions were introduced in the Constitution to cover the former roya.I prerogative relating to pardon, e.nd they a.re Arts. 72 e.nd 161. Article 72 dee.ls with the power of the President to grant pardons, reprieveA, respites or remissions of punishment or to suspend, remit or commute the sentence of a.ny person convic ted of any offence. Article 161 gives simila.r power U> the Governor of a. Sta.te with respect to offences a.gs.inst a.ny la.w relating to a. matter to which the executive power of the State extends. Sections 40 I a.nd 402 of the Code ha.ve continued with necessary modifica.tions to bring them into line with Arts. 72 and 161. It will be seen, however, that Arts. 72 a.nd 161 not only dea.I with pa.rdons and reprieves which were within the roya.l preroga.t.ive but ha.ve also included what iA pro vided in ss. 401 e.nd 402 of the Code. Besides the genera.I power, there is a.lso provision in ss. 337 a.nd 338 of the Code to tender pa.rdon to a.n e.ccomplice under certs.in conditions. .

In this ca.so we are primarily concerned with the extent of the power of pardon vested in the State so fa.r a.s the Governor is concerned by Art. 161 of 'the Constitution. Article 161 is in these terms:-

"The Governor of a. Sta.te sha.11 ha.ve the power to gra.nt pa.rdons, reprieves, reapites or remissions of punishment or to suspend, remit or commute the sen tence of a.ny person oonvioted of a.ny offence a.gs.inst Though Art. 161 does not make any reference to Art. 72 of the Constitution, the power of the Governor of a State to grant pardon etc. to some extent overlaps the same power of the President, particularly, in the case of a sentence of death. Articles 72 and 161 are Siu/ta C. ]. in very general terms. It is, therefore, argued that .they are not subject to any limitations and the res pective area of exercise of power under these two Articles i8 indicated separately in respect of the Presi dent and of the Governor of a 8tate. It iH further argued that the exercise of power under. these two Articles is not fettered by the provisions of Arts., 142 and 145 bf the ·Constitution or by any other law.

Article 142(1) is in these terms:-

"The Supreme Court in the exercise of its juri~­ diction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree ~o passed or order so made shall be enforceable throughout the territory of'India in such manner as may be prescribed.

by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe."

It will be seen that it consists of two parts. The first part gives power to this Court in the exercise of its jurisdiction to pass such decree or make ,such order as is necessary for doing complete justice in any cause or matter pending before it. The second part deals with the enforcement of the order passed by this Court. Article 145 gives power to this Court with the apvroval of the President to make rules for regu lating generally the practice and procedure of the Court. It is obvious that the rules made .under Art. 145 are in aid of the power given to this Court under Art. 142 to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Rule 5 of 0. XXI of the ]:{ules of this Court was framed under Art. 145 and is in these terms:- -

" Where the petitioner has been sentenced to a otherwise orders, t.he petition shall not be posted for hearing unt.il the petitioner has surrendered to his sentence."

This rule waR, in term", introduct•d into the Supreme Court llules last year and it only crystallized the pre existing practicti of this Court, which is also the prac tice in the High Courts. That practice is based on the very sound principle which was recognised long ago by tho Full Bench of the High Court of .Judica ture, !'\orth \Vt,stern Provinces, in 1870, iu the case of The Queen v. Bisheshar Pershad ('). In that caso no ordPr of conviction had been passed. Only a warrant had been issued against the accused and as the war rant had been returned unserved a proclamation had been issued and attachment of the property of tho accused had been ordered, with a view to compelling him t.o surrender. The validity of the warrnnL had been elmllt·nged before the High ·court. The High Court refused to entntain his petition until he had sunen dered because he was deemed to he in contempt. of a lawfully constituted authority. Tbe accused person iu pursuance of t.he order of t.he High Court surren dered and after he bad surrendered, the mattt>r was dealt with by tJw High Court on its merits. But as observed aho\'C the Rules framed uuder Art. . 145 are 011ly in aid of the powers of this Court under Art. 142 and the main question that fallR for considt>ration is, whethtlr the order of suspension passed by the Gover nor under Art. Hi! could operate when this Court had be!'ll mon•d for granting Hpecial leaYe to appP-al from the judgment and order of the High Court. A; soon as the µctitioner put in a petition for spt>cia.l leave to appeal t.he mattt>r became sub judice i11 this Court. This Court under its Rules could insist upon the petitioner surrendering tc• his sentence as a condition precedent to his being heard by this Court, though this Court could dispense with and in a proper case could exempt him from the operation of that rule. It ioi not disput ed that this Court has the power to stay the execu tion of the sentence and to grant bail pending tho period, but even so the power of the Court under Art. 142 of the Constitution to make such order as is necessary for doing complete justice in this case was not disputed and it would be open to this Court even while an application for special leave is pending to Sinha C. j. grant bail under the powots it has under Art. . 142 to pass any order in any matter which is necessary for doing complete justice.

But it has been argued that, even as the terms of Art. 161 are without auy limitation, the provisions of s. 401 of tbe Code of Criminal Procedure are also in simllarly wide terms, and do not admit of any limita.

tions or fetters on the power of the Governor ; the Governor could, therefore, suspend the execution of the sentence passed by the High Court even during the period that the matter was pending in this Court.

In other words, the same power of dealing with the matter of suspension of sentence is vested both in this Court as also in the Governor.

This immediately raises the question of the extent of the power under s. 401 of the Code with respect to suspension as compared with the powers of the Court . under s. 426, which enables the Court pending appeal to suspend the sentence or lo release the appellant ou bail. It will be seen from the language of s. 426 of the Code of Criminal Procedure c.lealing with the power of the appellate court that, for reasons to be recorded in writing, the court may order that the execution of . the senteuce be suspended or that if the accused is in confinement he mav be released on bail or on his own bond. Section 40(o ccurs in Chapter XXIX, headed "Of suspensions, remissions and commutatious of sentences". This Chapter, therefore, docs not deal with all the powers vested in the Governor under Art.

161 of the Constitution, but only with some of them.

Section 426 is in Chapter XXXI, headed as "Uf appeal, reference and revision". Section 426, there fore, deals specifically with a situation in which an a.ppeal is pending and the appellate court has seisin of the case and is thus entitled to pass such orders as it thinks fit and proper to suspend a sentence. It will thus be seen that whereas Chapter XXIX, in which s. 401 occurs, deals with a situation in which pen d ency of an appeal is not en visaged, s. 426 deals with a situation in which pendency of an appeal is postulat. ed. In other words, Chapter XXIX deals with persons sentenced to punishment for an offence simpliciter in general terms, whereas s. 426 deals with a special case and therefore must be out of the operation of s. 401. But it has been vehemently argued by the learned Advocate General that the words "at any time" indicate that the power conferred by s. 401 may ·be exercised without any limitation of time. In the con text of s. 401 "any time" can only mean after con. vict.ion. It cannot mean before conviction, because there cannot be any sentence before conviction. The question then is : " Does it cover the entire period after the order of conviction and sentence even when an appeal is pending in the appellate court and s. 426 can be availed of by the appellant?"

It will be seen that s. 426 is as unfettered by other provisions of the Code as s. 40 l with this difference that powers under s. 426 cau only be exercised by an appellate court pending 11n appeal. When both the prnvisions are thus unfettered, they have to be harmonised so that there may be no conflict between them. They can be harmonised without-any difficulty, ifs. 426 is held to deal with a special case restricted to the period while the appeal is pending before an appellate court wh ilc s. 401 deals with the remainder of the period after conviction. We see no difficulty in adopting this interpretation nor is there any diminu tion of powers conferred on the executive bys. 401 by this interpretation. The words "at any time " emphasise that the power under s. 401 can be exercis ed without limit of time, but they do not necessarily lead to the inference that this power can also be exercised while the conrt is seized of the same matter under s. 426.

Turning now to Arts. 142 and 161, the argument of Mr. Seervai is that though this Court has the power to suspend sentence or grant bail pending hea1)ug of the of the executive to grant a pardon, using the term in its comprehensive sense, as indicated above. Reference was in this connection made to Balmukand and others v. The King Emperor (¹ That was a case where a

).

convicted person had moved His Majesty in Council for special leave to appeal and the question arose as Sinha C. } . to the power of the executive to suspend the sentence.

In that connection Lord Haldane, L. C., made the· following observations :-

"With regard to staying execution of the sentence of death, their Lordships are unable to interfere. As they have ofteri 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 is out side their Lordships' province. It is, of course, open to the petitioners' advisers to notify the·· Government of India that an appeal to .this Board is pending. The Government of India will no doubt give due weight to the fact and consider the circumstances. But their Lordships do not think it right to express any opinion as to whether the sentence ought to be suspend ed".

These observations were made because the Judicial Committee of the Privy Council, unlike the Supreme Court, was not a Court of criminal appeal and there fore the question of suspending the operation of the sentence of death was not within their judicial purview. The granting of special leave by the Privy Council was an example of the residuary power of the Sovereign to exercise his judicial functions b_v way of his prerogative and therefore the petitioner was left free in that case to approach. the Gover!rment of India, as the delegate. of the Sovereign, to exercise the pre rogative power in view of the circumstance that an appeal to the Privy Council was intended. The foot note to the Report also contains the following:

" The petitioners were reprieved by the Govern ment of India pending the hearing of the petition for leave to appeal". (see p.134).

covered only the period until the grant or refusal of the petition for leave to a.ppca.l and did not go further so as to eover the period of pendency of the appeal to the Privy Council, unlike t.hc order now impugned in this case. The power which was vested in the Crown to grant special leave to appeal to con victed persons from India has now been conferred on this Court under Art. 136. The power under Art. 136 can be exercised in respect of " any judgment, decree, determination, sentence or order in any cause or matter passed or ma.de by any court or tribunal in the territory of India''. This wide and compre hensive power in respect of any ,.determination by any court or tribunal must carry with it t.be power to pass orders incidental or ancillary to the exercise of that power. Hence thu wide powers given to this Court under Art. 142 "to make such order as is neces sary for doing complete justice in any cause or matter pending before it". As already indicated, ,the power of this Court to pass an order of suspension of sen tence or to grant bail pending the disposal of the app lication for special leave to appeal has not been dis puttid and could not have been disputed keeping in view the vory wide terms in which Art. 142 is worded. When Ml application for special leave to appeal from a judgment and order of conviction and sentence passed by a High Court is rnadr, this Court has been il!suing orders of interim bail pending the hearing and disposal of the application for special leave as also during the pendency of the appeal to this Court after special leave has been granted. So if i\lr. Seervai's argument. is correct that the pende.ncy of a special leave application iu this Court makes no difference to the exercise of the power by the executive under Art. 161, then both the judiciary and the executive have to function in the same tield at the same time. lllr. Seerva.i however contended that there could never ho a conflict hetwecn the exercise of the power by the Governor 4nder Art. 161 and by this Court under Art. 142 becauHe the power under Art. 161 is executive power and tl power under Art. 142 is judicial power and the two do not act in the same field. That in our opinion is over-simplification of the matter. It is true

. . d b th th a t th e power un d er Ar t . 161 1s exercise y e exe- K. M. Nanavati cutive while the power under· Art. 142 is that of the The ;;ate of judiciary; but merely because one power is executive and the othe~ is judicial, it does not follow that they can never be exercised in the same field. The field in Sinha c. J. which the power is exercised does not depend upon the authority exercising the power but upon the sub ject-matter. What is the power which is being exercised in this case ? The power is being exercised by the executive to suspend the sentence; that power can be exercised by this Court under Art. 142. The field in which the power is being exercised is also the same, namely, the suspension of the sentence passed upon a convicted person. It is significant that the Governor's power has been exercised in the present case by reference to the appeal which the petitioner intended to file in this Court. There can therefore be no doubt that the judicial power under Art. 142 and the Executive power under Art. 161 can within certain narrow limits be exercised in the same field. The question that immediately arises is one of harmonious construction of two provisions of the Constitution, as one is not made subject to the other by specific words in the Constitution itself. As already pointed out, Art. 161 contains no words of limitation; in the same way, Art. 142 contains no words of limitation and in the fields cover.ed by them they are unfettered. But if there is any field which is common to both, the principle of harmonious construction will have to be adopted in order. to avoid conflict between "the two powers. It will be seen that the ambit of Art. 161 is very much wider and it is only in a very narrow field that the power contained in Art. 161 is also contained in Art. 142, namely, the power of suspension of sentence during the period when the matter is sub-judice in this Court. Therefore on the principle of harmonious construction and to avoid a conflict between the two powers it must be held that Art. 161 does not deal with the suspension of sentence during the time that in this Court.

In this connection it is well to contrast the language of s. 209(3) a.nd s. 295(2) of the Government of India Act, 1935. Section 209(3) gave power to the Federal Court to order a stay of execution in any case under appeal to the Court, pending the hearing of the appeal. Section 295(2) provided that nothing in this Act shall derogate from the right of His Majesty, or of the Governor General if any such right is delegated to him by His Majesty, to grant pardons, reprieves, res pites or remissions of punishments. It may have been possible to argue on the language of s. 295(2) that the prerogative exercised by His Majesty transcended the power of the Federal Court under s. 209(3); but when we compare the language of Arts. 72 and 161 with the language of s. 295(2) of the Government of India Act, we find no words like " Nothing in this Constitu tion" or "Notwithstanding anything contained in this Constitution " in them. Such words have been used in many articles of the Constitution: (See for example, Art. 262(2) which provides specifically for taking away by Parliament by law the power of this Court in disputes relating to water and begins with words" Notwithstanding anything in this Constitu tion "). The absence therefore of any such qualifying words in Art. 161 makes the power of this Court under Art. 142 of the same wide amplitude within its sphere as the power conferred on the Governor under Art. 161. Therefore if there is any field where the two powers can be exercised simultaneously the principle of har monious construction bas to be resorted to in order that there may not be any conflict between them. On that principle the power under Art. 142 which ope rates in a very small part of the field in which the power under Art. 161 operates, namely, the suspension and execution of sentence during the period when any matter is sub-judice in this Court, must be held not to be included in the wider power conferred under Art. 161.

In this connection Mr. Seervai drew our attention to the power of nolle prosequi. It may be mentioned

• that that power is not analogous to the power of par don though its exercise may result in a case in a court coming to an end. Simirar powers are contained in K. M. Nanavati ss. 333 and 494 of the Code of Criminal Procedure.

The fact that the Advocate General in the one case and the Public Prosecutor in the other can bring a pro secution to an end has in our opinion no bearing on the question raised in the present case. In any case action under s. 333 of the Code results in a discharge only and may leave it open, for example, to a private party to bring a complaint in the . proper court unless the presiding judge directs that the discharge shall · amount to an acquittal. Under s. 494 the withdra wal of a case can only take place with the consent of the Court. In any case these proceedings being not in the nature of pardon or suspension or remission or commutation of sentence have no bearing on the question before us. _

In the present case, the question is limited to the exercise by the Governor of his powers under Art. 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this Court; and the controversy has narrow ed down to whether for the period when this Court is in seizin of the case the Governor could pass the im pugned order, having the effect of suspending the sen tence during that period. There can be no doubt that it is open to the Govemor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called" mercy jurisdiction ''. Such a pardon after the accused person has been convicted by the Court has the effect of completely absolving him from all punishment or dis qualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such 'mercy jurisdiction '. But the suspension of tho sen tence for the period when this Court is in seizin of the case could have been granted by this Court itself. If in respect of the same period the Governor also has power to suspend the sentence, it would mean that both the judiciary and the executive would be flict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr. Seervai that the words of the Constitution, namely, Art. 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument in so far as it postu. !ates what has to be established, namely, that CT10 Governor's power we.8 absolute and not, fettered in any we.y. So long as the judiciary has the power to pass-a particular order in a pending case to that extent the power of the Executive is limited in view of the woras either of⁸⁸. 401 and 426 of the Code of Criminal Pro cedure and Arts. 142 and 161 0£ the Constitution. If that is the correct intepretation to be put on these pro visions in order to harmonise them it would follow that what is covored in Art. 142 is not covered _by Art. 161 and similarly what is covered by s. 426 is not covered by s. 401. On that interpretation :\fr. Seerv!Li would be right in his contention that there is no con: fliet between the prerogative power of .the sovereign state to grant pardon and the power of tho courts to dee.I with a ponding case judicially. · ··

In this connection it may be relevant to deal with · another argument urged by Mr. Seervai in respect of the rule framed bv this Court under 0. 21, r. 5. He contended that Art. 145 under which rules have been framed by this Court is in terms subject to the provi sions of any law me.de by Parliament, and he also emphasised the fact that before the rules can com·e into force they have to obtain the approval of the President. In other words, the argument is that the rule-making vower of this Court is no more than sub ordinate legislation, and so if there is a conflict bet ween 0. 21, r. 5 and Art. 161 the rule must yield t-0 the powers conferred on the Governor by Art. 161. This argument overlooks the fact that in substance and effect the conflict is not between the said rule and Art. 161 but between tho wide powers conferred on this Court by Art. 142 and similar wide powers con ferred on the Governor undor Art. 161. It would, higher power under Art. 161 has been exercised by the Governor, and so in ~he fac~L the· order, passed by the Governor there 1s no longe_r _l!-ny need to com ply with the rule. We have already referred to the genesis of this rule and _w.!e.-have pointed out that Sinha c. J; though the rule may have been framed under Art. 145 the source of the power of this Court to grant bail or to suspend sentence pending hearing of any criminal matter before it is not the saidrule nor Art. 145 but Art. 142; that being so, what Fe have to dec_ide in the present case is whether having regard to the width 'and amplitude of the powers conferred on this Court and the Governor by Arts. 142lrnd 161 respectively it would not be reasonable and J~.~per to harmonise the said two articles in such a way as to avoid any conflict between the said two powers. In the decision of this question the legal chara~r of the rules that may be framed under Art. 145 cannot have any niaterial bearing.

In this connection it would be relevant to consider what would be the logical consequence if Mr. Seervai's argument is accepted. . In the present case the.

Governor's order has been passed even before the petitioner's application for special leave came to be heard by this Court ; indeed it was passed before the said application was filed and the reason forpassing the order is stated to be that tho petitioner intended to file an appeal before this Court. Let us, however, take a case wliere an application for special leave has been filed in this Court, and. on a motion made by the petitioner the Court has directed him to be released on bail .on executing a personal bond of Rs. 10,000 and on furnishing two sureties of like amount.

According to Mr. Seervai, even if such an order is passed by this Court in a criminal mittter pending before it, it would be open to the .Petitioner to move the Governor for suspension ·of 41§._.sentence pending the hearing of his application and ·appeal before this Court and the Governor may, in a proper case, uncon ditionally suspend the sentence. In other words, Mr.

Seervai frankly conceded that, even in a pending criminal matter before this Court, an order passed by

· M. ~anavati this Court may in effect be set aside by the Governor

The State of by ordering an unconditional suspension of the sen. tence imposed on the petitioner concerned. This illustration clearly brings out the nature of the controversy which we are called upon to decide in this case. If Mr. Seervai's argument is accepted it would inevit ably mean that by exercising his power under Art. 161 the Governor can effectively interfere with an order passed in the same matter by this Court in exercise of its powers under Art. 142. It is obvious that the field on which both the powers are operating is exactly the same. Should the sentence passed against an accused person be suspended during the hearing of an appeal on the ground that a.n appeal is pending? That is the question raised both before this Court and before the Governor. In such a case it would be idle to suggest that the field on which the power of the Governor under Art. 161 can be exercised is different from the field on which the power of this Court can be exercised under Art. 1'12. The fact that the powers invoked are different in character, one judicial and the other executive, would not change the nature of the field or affect its identity. We have given our anxious consideration to the problem raised for our decision in the present case and we feel no ·hesitation in taking the view that any possible con. flict in exercise of the said two powers can be reasonably and properly a voided by adopting a harmonious rule of construction. :Avoidance of such a possible conflict will incidentally prevent any invasion of the rule of law wb i ch is the very foundation of our Con stitution.

It has been strenuously urged before us that the power of granting pardon is wide and absolute and can be exercised at any time, that is to say, it can be exercised even in. respect of criminal matters which are sub judice; and the argument is that the power to suspend sentence is part of the larger power to grant pardon, and is similar in character and can be simi larly exercised. This argument is fallacious; it ignores the essential difference between the general power to grant pardon etc., and the power to suspend sentence in criminal matters pending before this Court. The first is an exclusively executive power vesting in the Governor under Art. 161; it does not vest in this Court; and so the field covered by it is exclusively subject to the exercise of the said executive power; Sinha C. ]. and so there can be no question of any conflict in such a case; conflict of powers obviously postulates the existence of the same or similar power in two authorities; on the other hand, the latter power vests both in this Court and the Governor, and so the field covered by the said power entrusted to this Court under Art. 142 can also be covered by the executive power of the Governor under Art. 161, and that raises the problem of a possible conflict between the two powers. That is why we have observed earlier that concentration or even undue emphasis on the charac.

ter and sweep of the larger power to grant pardon is likely to distract attention from the essential features of the power to suspend sentence with which alone we are concerned in the present proceedings.

As a result of these considerations we have come to the conclusion that the order of the Governor grant ing suspension of the sentence could only operate until the matter became sub judice in this Court on the filing of the petition for.special leave to appeal.

After the filing of such a petition this Court was seized of the case which would be dealt with by it in accord.

ance with law. It would then be for this Court, when moved in that behalf, either to apply r. 5 of 0. XXI or to exempt the petitioner from the operation of that rule. It would be for this Court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as this Court might deem fit in all the circumstances of the case. It follows from what has been said that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this Court.

A great deal of argument was addressed to us as to order impugned in this case was or was not legal. In

h k fhG '

. . anavait h. e v.ie w we ave ta en o t c ovcruor s power, so

Th• Stat• of far as the relevant period is concerned, namely, after the ease became sub judice in this Court, it is not necessary to pronounce upon that aspect of the con. troversy.

In the result. the application dated April 21, 1960, as amended by the affidavit of July 6, 1960, praying that the special leave petition be listed for hearing without requiring the petitioner to surrender in view of the order of the Governor foils and is dismissed.

J .. ..:..I havo had the advantage of reading

KAPUR the Order proposed by my Lord the Chief ,Justice, but I regret I am unable t-0 agree with it and I pro ceed to give my reasons:

In this petition which is brought for exemption from surrender to the sentence imposed on the p~Litio­ ner a question of great constitutional importance arises. The petitioner submits that his seutence having been Huspended by the order of the Governor of the erst.while State of Bombay, the rule made by this Court as to surrender which is a condition prece dent to the hearing of a petition for leave to appeal against the judgment of the High Court is inapplic able to him and that it is a fit case in which he should be exempted from the operation of tho rule. Tho facts which have given rise to this petition are set out in.the order of my Lord the Chief Justice and need not be repeated here .

. The decision of this petition depends upon the nature, effec:t, extent and operation of the powers con ferred by arts. 142(1), 145 and 161 of the Constitution; how they are to be construed and how and to what extent, if any, they are in conflict or in accord with each other. It will be necessary to delve into the history of the preroga.tivo of pardons in England and America and see how far the law la.id down by courts of those countries and the practice there followed is helpful in disoovoring the true intent and purpose of these articles of the Constitution.

. pardons is vested in the President and the Governors of States. Article 72 deals with the former and art.

161 with the latter. Article 72 which is in Part V, The State of Chapter I, dealing with the Union Executive pro vides:-

Art. 72. (1) "The President shall have the power to grant pardons, reprieves, respites or remission of punishment or to suspend, remit or commute the .

sentence of any person convicted of any offence.

(a) .......................•..........................•.......•....

(b) in all cases where the punishme1,t or sentence is for an offence against any law relating to, a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) .....................•..•............•......•....••...•••••....

(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force:'.

Article 161 which is in Part VI is as follows:-

"The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence <Lgainst any law relating to a matter to which the executive power of the State extends".

· Article 142( 1) is as under :-

" The Supreme Court in the exe.rcise of its juris diction may pass such decree· or make such order as is neeessary for doing complete justice in any cause or matter pending before it ".

Both articles 72 ·and 161 give the widest power to the President or the Governor of a State as the case may be and there are no words of limitation indicated in either of the two articles. It was argued that under arts. 142 and 145(1) of the Constitution certain powers are conferred on the Supreme Court and if the articles conferring powers on the President and the Governors are read along with the power given to the Supreme . harmonious interpretation to a.II the four articles it is

d I 1· d f h necessary to cut own t¹⁰ amp 1tu o o t o powers conferred by arts. 72 and 161 of the Constitution. In regard to suspension of sentences it will be fruitful to tra.ce the legislative hi~tory of the rC'lc\;'.'e.nt powers of the executive and the judiciary which a.rise for construction.

In tho Criminal Procedure Code of 1861 (Act XX V of 1861) the power of the executive wa.s confined to remission of punishments and wa.s contained in s. 54 which wa.s as under:-

S. 54. " When any person has been sentenced to punishment for an offonco, the Govero.or Genera.I of India in Council, or the local Government, may, a.t any time, without conditions; or upon any condition which such person shall accept, remit the whole or a.ny pa.rt of the punishment to which he shall have been sentence'd ".

This section was in Chapter III dealing with "Preli minary Rules" which included among ot.her things . passing of sentences, the place of confinement of per sons convicted and the power of remission of sentences by the Governor General. In Chapter XXX dealing with appeals bys. 421 the appellate court was given the power to suspend sentences ponding appeals a.nd ~elea.se which was in the following terms:-

S. 421. "In any case in which a.n appeal is allowed, the Appellate Court ma.y, pending the a.ppea.l, order tha.t t.he sentence be suspended, and if the a.ppella.nt be in confinement for an offence which is bailable, may order that he be released on bail ". '

Then ca.me the Criminal Procedure Code of 1872, Act X of 1872. In Chapter XXIII dealing with execu tion of sentences the power of the executive to remit punishment was contained in s. 322 which read a.s under:-

S. 322. "When any person has been sentenced to punishment for an offence, the Governor General of India. in Council, or the Local Government, ma.y at any time, without conditions, or upon a.ny condi tions which the person sentenced accepts, remit the And the power of suspension of sentence pending appeals and release and bail was contained in s. 281, a section in Chapter XX dealing with appeals which was in the following terms :-

S. 281. "In any case in which an appeal is allowed, the Appellate Court may, pending the appeal, order that the sentence be suspended, and, if the appellant be in confinement for an offence which is bailable, may order that he be released on bail.

The period during which the sentence is suspend ed shall be omitted in reckoning the completion of the punishment".

The Criminal Procedure Code was re-enacted in 1882 being Act X of 1882. The pow~r to suspend or remit sentences was contained in a separate chapter, viz., Chapter XXlX headed "Suspensions, Remis sions and Commutations of Sentences". The relevant provision was s. 401 :-

S. 40L "When any person has been sentenced to punishment for an offence, the Governor General in Council, or the Local Government, may at any time, without conditions, or upon any conditions which the person sentenced accepts, suspend the execution of his sentence, or remit the whole or any part of the punishment to which be has been sentenced.

Nothing herein contained shall be deemed to interfere wit.h the right of Her MajestY' to grant par dons, reprieves, respites, or remissions of punish ment".

The power of the appellate courts as to suspension of sentences pending appeals was given in s. 426 which was in Chapter XXXI dealing with appeals and that section was as follows :-

" 426. Pending any appeal by a convicted per son, 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 ha.ii or on his own bond.

The power conferred by this section on an Appel late Court may be exercised also by the High Court in the case of any appeal by a. convicted person to a. Court subordinate thereto.

When the appellant is ultimately sentenced t-0 imprisonment, penal servitude or transportation, the time during which ho is so released shall be excluded in computing the term for which he is so sentenced". A new Criminal Procedure Code was enacted in 1898, a. portion of which was subsequently amended. The section dealing with powers of suspension or remission of sentence is 401 which reads as under :-

" 401. (1) When any person has been sentenced to punishment for an offence, the Governor General in Council or the local Government may at any_ time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any pa.rt of the punishment to which he has been sentenced ..........,., . .. . . . . . .. . . . .. . . . . . . .. .. . .. . .. . .. .. . .. . . . .

.. . .. . . .. . . .. .. . . . .. .. . .. . .. The original sub-section (5) of this section was:

"(5) Nothing herein contained shall be deemed to interfere with the right of His Majesty or of the Central Government when such right is delegated to it to grant pardons, reprieves, respites or remissions of punishment".

And this sub-section was repealed by the Adaptation of Laws Order, 1950. The words Governor Genera.I in Council or the Local Government were suitably a.mended with the various constitutional changes.

The corresponding section of appellate courts is contained ins. 426 which is in Chapter X XXI deal ing with appeals etc. The relevant portions of this section when quoted a.re as under :-

" 426. (l) Pending any appeal by a convicted per son, 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, also, if he is in confinement, that he be released on bail or on his own bond.

. . . . .. . .. .. .. . . .. .. .. . . .. .. . .. .. ..

(2) (B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also,. if such person is in confinement, that he be released on bail". (This sub-section was added later).

It may be mentioned that in the Code of 1861 the power given to the Governor General was to remit punishment to which an accused person was senten ced and the power of the appellate court was to suspend the sentence pending appeal in non-bailable offences and to release on bail in bailable cases. In the Code of 1872 also the power of the Governor General and of the local Government was one of remission of punish ment and the power of the appellate court was of sus pension of sentences pending the appeal. In s. 401 of the Act of 1882 the legislature chose to use the words "suspension of the execution_ of a sentence or remit the whole or any part of punishment". The power· was discretionary and there is nothing to indicate that this power was in any way limited. But the power given to the appellate court was differently worded from what was in the previous Codes in that now it was necessary for the Courts to record reasons emphasising that .the two powers-the one exercised by the executive and the other exercised by the judi ciary-were two separate powers, no doubt, operating for the same purpose but exercised on different con siderations and in dilferent circumstances. Of course this does not mean that the courts did not exercise thefr power judicially previous to the Act of 1882.

In the Act of 1898 also-, which is still the law, the same power of suspension of the execution of sentences or remission of punishments is mentioned in s. 401 and in s. 426 giving the powers of the appellate courts the words "for reasons to be recorded in writing " are repeated showing that the legislature wanted to make the exercise of tbA power cc•nferrf'd on the executive 1>11d on the jn<liciary. The words" at any time" in s. 401 are very wide and show tho plenary nature of the power.

In tho Government of India Acts pre\'ious to the Act of I 935 nothing was said about the power of the .Crown or tho power of tho Governor (;pneral aA a dPlegate of the Crown, and it cannot be said that the Indian lrgislature, whate1·er its powers, could affect the King's prerogative and therefore any provision in the Criminal Procedure Corle was wholly irnpuissant as to tho King's prerogative of pardons. See Hen rietta Muir Edwards v. Attorney General of Canada('). Provisions such ass. 401(5) are by way of abundant caution.

Section 295 of the Constitution Act of 1935 was a special provision as to thn power of the executive to suspend, remit· or commute a scmtence of death. Sub section (1) of that section pro\'ided that the power of the Go,·eruor General in his discretion were the same as we.re vested in the Governor G<~neral in Council imrnP<liate!y before the commencement of Part Ill of that Act hut save as that no aut.hority in India out side a provi11ce had any power to suspend, remit or commute the sentence of any pernon convicted in a province. Sub.section (2) was a saving clause and it provided:-

S. 295. (2) "Xothing in this Act shall derogate from tlw right of His Majesty, or of tho Governor General, if 11ny such righL is delegated to him by His ~fajesty, to grant pardons, reprieves, respites or remis sions of punishment.."

Thus the power of the King or bf the Governor Gene ral as a delegate to grant suspension remission or com mutations remained unaffected by the introduction of a federal system with division of subjects betw1>en the ('.,entre and the Provinces. This section was in the pa~t dealing with the provisions as to certain legal matters. Thus under the Government of India Act the Governor General in his discretion had the nower passed in a province but the power of the King and of the Governor General as a delegate remained un- . affected by the first sub-section of the section. Thus up to the coming into force of the Constitution the exercise of the King's prerogative remained unaffected, was plenary, unfettered arld exercisable as hitherto.

Historically in England the King as the autocra tic head of the Government always had the power to pardon. .

This was a part ... of that special pre-eminence which the King hath over and 'above all other persons and out of the ordinary course of the common law, in right of his royal dignity". Bl. Comm. (i). 239.

A pa'rdon is said by Lord Coke to be a " work of mercy; whereby the King, either before attainder, sentence or conviction or after forgiveth crime,

flll.Y offence, punishment, execution, right, title,· debt or duty, temporal or ecclesiastical". 3 Inst.²³:~.

The common law is thus stated in Hale's Picas of the Crown, Vol. 2, Chapter 58, page 412:

"Reprieves or stays of judgment or execution are of three kinds, viz. :

1. Ex mandate regis.

2. · Ex arbitrio judicis. Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evi_dence is uncertain, or the indictment insufficient or doubtful whether within clergy; and sometimes after judgment, if it be a small felony, the out of clergy, or in order to a pardon or transportation. Prompt. Just 22b, and these arbitrary reprieves 1:nay be granted or taken off by the justices of gaol delivery, also their sessions be adjourned or finished, and this by reason of common usage, 2 Dyer, 205a, 73 Eng. Reprint, 452.

3. Ex necessitate legis. Which is in case of preg nancy, where a woman is convict of felony or treason"; Blackstone thus expresses this prerogative:

"The only other remaining ways of avoiding the execution ·of the judgment are by a reprieve or a pardon; whereof the former is temporary only, the .latter permanent.

whereby the executiou is suspended. This may be,

The .⁵tatt of first ex a.rbitrio judicis; either before or after judg ment; as where tho judge is not satisfied with the verdict, or the evidence is suspicious, or tho indict ment is insufficient, or he is doubtful whether the offence be within clergy or sometime if it bo a. sma.11 felony, or a.ny favourable circumstances a.ppea.r in the criminal's character,· in order to give room to apply to the Crown for either a.n absolute or cond itiona.l pardon. These arbitrary reprieves ma.y be granted or ta.ken off by the justices of gaol delivery, although their session be finished, a.nd their commission expir ed; but this rather by common usage, than of 'strict right.

Reprieve ma.y also be ex necessitate legis; a.s, where a. woman is ca.pita.Hy convicted a.nd plcitng her pregnancy; though this is no ca.use to stay the judg ment, yet it is to respite the execution till ~he be delivered. This is a. mercy dictated by the la.w of nature in favourem prolis ". Bk. 4, cha.pt. 31, pp. 394, 395.

After imposition of the sentence execution of the sen tence may be suspended for a. time which is known a.s respite and ma.y be granted by the king or by the Court. Orfield's Criminal Procedure from Arrest to A ppea.I, p. 529.

As the pos.qessions of the kings of England expand ed and several uew colonies came under their sway the power of pardon which the kings exercised ca.me to be exercis!·d by their representatives in the colonies and in America. from them it went to the State Governors and to the President for fedora.I offences. The same process was followed in this country a.s the various ena.ctment.9 a.nd provisions set out a.hove show. It may be repetitive but it cannot be suffici ently emphasised that both the power of pardon and the power of reprieve which is a. part of the all com prehensive power of pardon are executive acts and ca.n be exercised at any time and in any circumstances untrammelled and without control and in absolute

In the Constitution the power of the President is the same as it was in s. 295 of the Constitution Act of 1935 and is unaffected in °regard to sentence of death by the power conferred under art. 161. The power of the Governor c9ntained in art. 161 also is of the widest amplitude as the words of the article which have been quoted above would show. In construing a constituent or an organic Statute such as the Con stitution that interpretation must be attached which is most beneficial to the ·widest amplitude of its powers; British Coal Corporation v. King (¹ The

). Judicial Committee in Henrietta Muir Edwards v. Attorney General of Canada (') said :-.

"Their Lordships do not conceive it to be the' duty of this Board-it is certainly not their desire-I to cut down the provisions of the Act by a narrow, and technical construction, ........................ ".

In America the exercise of the power of pardon has been held to be governed by the same principles as are applicable to the exercise of the King's power of, mercy under the English Constitution. In U nited'I States v. Wilson(') Marshall, 0. J., referring to the exercise of this power said :

" As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institu tions ours. bears a close resemblance ; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules pres-, cribing the manner in which it is to be nsed by the person who would avail himself of it".

Wayne, J., in Ex parte Wells (') said :

"We still think so, and that the language in tht; Cons_titution, conferring the power .to grant reprieve~ and pardons, must be construed with reference to its meaning at the time of its adoption. At the time of our separation from Great Britain, that power had Prior to the Revolution, the Colonies, being in effect under the laws of England, were accustomed to the exercise of it in the variouH forms, as thP-y may he found in the English books. They were of course to be applied as occasionH occurred, and they constitued a part of the jurisprudence of Anglo-America.. At that time of the adoption of the Constitution, Ameri can statesmen were conversant with the pr11rogativcs exercised by the Crown. Hence when the words t.o grant pardons were used in the Constit.ntion, they convey to the mind tho authority as exorcised by the English Crown, or its representatives in the Colonies. At that time both Englishmen anrl Americans attach ed the same meaning t.o tho words" pardon". In the convention which framer! the ConsWution, no effort was made to define or change its meaning, although it was limited in cases of impeachment.

We must then givo the word the same meaning as prevailed here and in England at the time it found a place in the Con&t.it.ution. This is in conformity with the principles laid down by this court in Cathcart v. RobiM<m, 5 Pot. 264, 280; and in Flavell's case, 8 Watts & Serg. 197; Attorney General's brief".

In Ex parte Grossman(') Taft, C. J., said:-

"

............... The language of the Constitution cannot he interpretetl safely except by reference to the com mon law and to British institutions as they ·were when the inRtrumont was framed and adopted. The states men and lawyers of the Convention, who submitted it to the ratification of the Convention of the thirteon states, were born and brought up in the atmoRphere of tho common law, anti thought and spoke in its vocabulary. They were familiar with othor forms of government recent anrl ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put thtiir concluRions into the form of fundamental law in a compact draft, thuy expressed them in terms of tho common law, understood ".

According to the American as also Indian Cons.titu. tion the power as given to the President is not· to re prieve and pardon but that he shall have power to grant reprieves and pardons for offences against the United States except in oases of impeachment. Wayne, J., in Ex parte Wells (¹ at -page 425 has ex- ·

) plained the difference between the -meaning of these two expressions. " The· first conveys only the idea of an absolute power as to the purpose or object for which it is given. The. real language of the constitution is general, that is, common to the class of pardons known in the law as such whatever they may be by their denomination. We have shown that conditional pardon is one of them. A' single remark from the power to grant .reprieves will illustrate the point. That is not only to be u.sed to delay a judicial sentence when the President shall think·the merits of the case or some cause connected with the offender may re

but it also extends to cases ex neUBiitate legis qui~e it., ..................... Though the reprieve -in either case produces delay in the execution of a sentence ", the reprieves in the two cases are different in their legal character and different as to the ca.uses which may induce the exercise of the power to reprieve.

In India also the makers of the Constitution were familiar with English institutions and the powers of English Kings and the exercise of their power both by the Governor General and the Governo.ts of British India. and ·of its provinces. It will be legitimate to draw on ~nglish la~ for guidance in the construction of the . articles dealing with the power of the President and . of the Governor in regard to pardons including the other forms of clemency comprised in the two artfoles. It will not be inappropriate to say that the framers of the Indian Constitution were not only familiar and trained in British Jurisprudence but were familiar with the American Constitution a.nd they were draft ing their Constitution in English language and there fore to draw upon the American parallel would be wholly legitimate.

rieves shows tha.t the power of the executive in the ma.ttor of pardons and reprieves and ot.her forms of pardons irrespective of the name used is of the widest amplitude and is plenary in nature and can be exer cised at a.nv t.imo a.fter the commission of the offonce. The power 'of tho oxecuti ve is an a.ct of grace and cle mency. It is a sovereign or governmental power which in a. monarchy is inherent in the King and in a. Republic in the Sta.te or the people and which may, by the Constitution, bo conferred on an officer or a depart ment. It is a.n execut.ive power of the Governor and it is the sa.me a.s was exercised by the colonial Gover nors in America. 67 C. J. S. 565.

Wayne, J., in the. matter of Ex parte Wells(') has described it as a.n a.ct of mercy and a.n a.ct of clemency applicable t-0 pardons of every kind and form. Field, ,J., in Ex parte Garland(') termed it the benign prProga tive of mercy. It is tho power for a.voiding the exe· eution of the judgment by reprieve or pardon whereof the former is temporary and the la.tter permanent. According to Willoughby's Constit.ution of America., Vol. IIJ,p. 1492:-

" The power to pardon includes the right to remit pa.rt of the penalty a.s well a.s the whole a.nd in either ca.se it ma.y be ma.do conditional. The power may be exercised at a.ny time a.fter the offence is committed, that is, either before, during, or after legal proceed ings for punishment". Ex pa rte Garland 4 W a.II. 333.

Reprieve whereby the execution is suspended is merely the p.ostponement of the execution for a definite time and it does not and cannot defe,it the ultimate execution of the judgment but merely delays it. It is extended to a. prisoner in order to afford him an oppor tunity t-0 procure some amelioration of the sentence which has been imposed upon him. But power to rep rieve is an executive act and the sole judge of tho sufficiency of facls a.nd of the propriety of the action is the Governor. No other department in America has control over his actions. The pardoning power is in derogation of the law and the power of pardoning

. · I d h f d•t• 1 d con ditlona. t e grant o a. con 10na par on is K . M . Nana¹¹at¹

~n 1 not illegal.

It has been held that the power of pardon is not subject to le-gislative control ; Ex parte Garland (¹ nor

);

is it open to the legislature to change the effect of pardon; United States v. Klein (² The executive may

).

grant pardon for good reasons or bad. or for any reasons at all; its a.ct is final and irrevocable. The Courts have no concern with the reasons which actuated the executive. This power ts beyond the control of the judiciary; 39 Am. Jur. 545, ss. 43; Horwitz v. Con- .

nor (⁸

). . · · Thus in England the exercise of the power by the King is· the exercise of the power of mercy. The power is plenary in nature and unfettered and as far as con stitutional powers are concerned .it can be exercised at any time after the commission of the offence. In America the power of the executive under the Federal or State Constitution is the same in its nature a.s that exercised by the representative of the English Crown in America in colonial times. 67 C. J. S. 565. It pas been said that executive clemency exists to afford relief from undue harshness or individual mistake in the operation or enforcement of the criminal law. It is essential in popular Governments as well as in mon archies to vest in .some other party than courts the power to amelior.ate or a.void particular criminal judg ments and the exercise of this power is the exercise by the highest executive of his full discretion and with the confidence that lie will not abuse it.

In Ex parte Garland (1), it was held that the Presi dent's pardon was not subject to legislative control, said Field, J ., "the law thus conferred is unlimited ........ .... ............. ........ It extends to every offence known to the law and may be exercised a.t a.ny time a.ftor its commission .............................. The power of the President is not subject to legislative control.

Congress can neither limit the effect not exclude from its effect ariy class of offenders. The benign prerogative, Ex parte Grossman(') it was held that there was no difference between the power of the President a.nd that of the king in regard to pardon and a.t page 535 it was observed by Ta.ft, C. J. :-

"Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administra tion of justice by the courts is not necessarily a.lwa.ys wise or certainly considerate of circumstances which ma.y properly mitigate guilt. ·To afford a. remedy, it ha.s always been thought essential in popular govern ments, a.s well as in monarchies to vest in some other authority than the court power to a.meliorate or avoid particular criminal judgment. It is a. check intrusted to the Executive for special cases".

That case also la.id down that the exercise of the exe cutive power to the uxtent of dostroying the deterrent effect of judici¹~l punishment would be to pervert it but whosoever is to make the power useful must have full discretion to exercise it and that discretion is ves ted in the highest officer in the nation.

In Biddle v. Vuco Perovich('), Holmes, J., in dealing with pardons said:-

" Pardon is not a. private a.ct of grace from a.n iudividual happening to possess power. It is a. pa.rt of the constitutional scheme. When granted it is the determina.tiou of the ultimate authority that the pub lic welfare will be better served by inflicting less than what the judgment fixed"

and in Sorrells v. United States(') the observation of Holmes, J., were followed a.ud it was held the clemency is the function of the executive and it is the function of the courts to construe the Statute and not to defeat it as construed.

A review of these American cases shows that the courts there have accepted that the English principles respecting the extent, operation and effect of pardons a.nd reprieves apply in America.; that the power which executive in the land and that a pardon which includes a reprieve and a respite may variously be described as an act of clemency, an act of mercy, an act of grace, an exercise of the sovereign or governmental power or the determination of the ultimate authority. There fore the principles which govern the exercise of this , executive power are quite different from those which govern the exercise of the power of the courts. It may also be pointed out that the American courts have frowned upon any interference by the courts or by the legislature with the extent and effect of the prero gative of the people vested in the President in the exercise of his power of benign mercy. It was so held iu Ex parte Garland (') and United States v. Klein('). In the former case the President had given a pardon to rebels who liad taken part in the civil war against the forces of the federation and the legislature had reversed that pardon and it was held that pardon was not subject to legislative control and in the latter which' was a conditional pardon the power of the legis lature was held not to be exercisable.

The power of the executive can be exercised at any time. This is so in England, in America and in India. "The King", said Lord Coke, "can forgive any crime, offence, punishment or execution either before attain der, sentence or conviction or after~· ; 3 Insti. 233; Hawkins' Pleas of the Crown bk. 2, Chapt. 37. ·In the Indian Statute the words "any time" are expressly used in s. 401 of the Criminal Procedure Code and in England it is an accepted practice that the Crown can pardon before or after conviction or before trial. As far as the power of pardon before trial is concern ed it can be exercised by entering nolle prosequi which is also the law in India. Undet s. 333 of the Code of Criminal Procedure the Advocate General can, in cases tried before the High Court, enter a nolle prosequi and this power is absolute and not subject to the control of the court. This section makes it clear that befo.re a verdict is given the Advocate-General may inform the further prosecute tho defendant upon the charge and he· shall be discharged but this discharge doos not a.mount to acquittal unless the Judge otherwise directs. We a.re informed that in tho city of Bombay the power of the Ad voca.te. Genera.I extends to cases tried by the court of Ses8ion. There i8 no chance of private complainant being able to restart the proceedings because the Crown can always take over any criminal proceeding and then enter a. noUe prosequi. Similarly the power is gi>en in regard to other courts of original jurisdict.ion to the Public Prosecutor under s. 494, Criminal Procedure Code, but that power is not a.s absolute as it is in thu case of s. 333 because it is subject to the consent of the Court.

In the absence of constitutional restrictions the power of pardon and reprieve whether conditional or unconditional may be exercised at any time aftrr the commission of the offence either before legal proceed ings a.re ta.ken or during their pendency or a.flPr an appeal is filed and while tho ca.so is pending iu the appellate court. It was so held in Ex parte Grossman (') ; Ex parte Garland(') and so stated in 67 C. J. S. 572. In the absence of a. limitation imposed by law there is no limit to the period of roprievo and successive repri eves where a period is prescribed arc not illegal : 67

s.

J. p. 582. '

A case where the power of reprieve was exercised and operated during the pendency of the appellate proceedings is Rogers v. Peck ('). There one .Mary Mabel Rogers was granted reprieve to permit her to appeal to the Supreme Court of the United States from the order of the District Court denying habe,as corpus. She was con victe<l of murder at the December term 1903 and was confined in solitary confinement until J<'ebrua.ry 3, 1905, on which day she was to suffer the penalty of death. On February I, 1905, the Governor reprieved the execution of sentence until June 2, 1905. On April 29, 1905, she presented a. petition ror a. new trial to the Supreme Court of the State. The petition was admitted on May 5, 1905, and fixed for hearing on tion of the, sentence was further reprieved by the Governor until June 23, 1905. Thereupon she filed her petition in the Federal Court for a writ of habeas corpus which was dismissed: On that date the Gover nor further repdeved the execution of the sentence until December 8, 1905. The appeal to the Supreme Court of the United States was admitted on June 22, 1905, but the appeal was finally dismissed on Novem qer 27, 1905. One of the grounds of appeal in tho Supreme Court was that the Governor, by giving the reprieve, issued his order requiring the execution while proceedings \Vere pending in the court of the United States for her relief on habeas corpus and therefore the order was null and void and another ground was the failure of the Supreme Court of the State to grant a stay and fixing a date"for execution. Both the grounds were overruled and it was held that the reprieve was to allow the cause to be heard on appeal in the Supreme. Court and that the order of the Governor was not against due process clause and when the Governor had given a reprieve beyond the hearing in the State Supreme Court there was no occasion for the court to act in the matter. This case shows that the power of reprieve is exercisable even during, the period that proceedings are pending in an appellate court.

The argument in opposition to the submissions of the learned Advocate-General was that although the power of the executive to grant pardon or reprie¥e or suspension of sentence was absolute and could be exercised at any time yet there was a sta~utory as well as a constitutional limitation on the exercise of .tl:fl:s power which excluded the power of the executive for the period when the case of a defendant had been brought before the Supreme Court or before any other appellate court as the case may be. For the latter reference ·was ruade to s. 426 of the Criminal Pro dedure ()ode which gives the power to appellate courts to suspend a sentence pending an appeal for reasons to be recorded in writing and as to. the former arts. to do complete justice in any cause or matter pending

Tha Stala of before it and art. li5 gives to the Supreme Court power to make ru)es with the approval of the Pre sident but subject to any law which the Parliament may pass.· Under art. 145 which is the rule making power of this court, the court has made two rules which are relevant for the purpose of this appeal and they are Order 21, Rule 5 and Order 21, Rule 28 and when quoted they are as. follows :-

0. 21, R. 5 "When the petitioner has been sentenc ed to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the Court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence ".

0. 21, R. 28 "Pending the disposal of any appeal under these Rules the Court may order that the execu tion of the sentence or order appealed against be stayed on such terms as the Court may think fit ".

Rule 5 is a salutory rule in that the conrt will not hear a case in which the party is in contempt of the order of the subordinate court but that rule is in express words subject to the discretion given to this court under art. 136 which stat.es:-

"Notwithstanding anything in this Chapter the Supreme Court may, in'· its discretion, grant special leave to appeal. ........ ".

Rules made under art. 145 are subordinate legislation because they are subj(lct te any law made by Parlia m,ent and can be changed by the court with the approval of the President. The change of an article, on the other hand, is to be in accordance with the pro visions of the Constitution and therefore merely because this Court has also the power under the rules. to grant &uspension of a sentence and it has m!J.de rules t]J.at it will not entertain any petition for leave to appe.al unless the petitioner surrenders himself to .\ the sentence cannot override the provisions of art. , 161·; because if there is irresolvable conflict between being subordinate legislation.

It was argued that the power of the Court under articles 142 & 145 and of the Governor under art. 161 Tlie State of are mutually inconsistent and therefore the power of the Governor does not extend to the period the appeal is pending in this Court because law does not contemplate that two authorities, i.e., executive and judicial should operate in the same field and that it is necessary that this Court should put a harmonious construction on them. Article 142 of the Constitution, it was contended, is couched in language of the widest amplitude and comprises powers of suspension of sentences etc.

The argument that the power of the executive to suspend the sentence under art. 161 and of the judiciary to suspend the sentence under art. 142 and art. 145 are in conflict ignores the nature of the two powers. No doubt the effect of both is the same but they do not operate in the same field; the two authorities do not act on the same principles and in exercising their powers they do not take the same matters into consideration. The executive exercises the power in derogation of the judicial power. The executive power to pardon in,cluding reprieve, suspend or respite a sentence is the i>xercise of a sovereigti or governmental power which is inhe.rent in the State power.

It is a power of clemency, of mercy, of grace "benign prerogative " of the highest officer of the State and may be based on policy. It is to be exercised on tho ground that public good will be as well or better promoted by suspension as by the execution but it is not judicial process. The exercise of this power lies in the absolute and uncontrolled discretion of the authority_ in whom it is vested.

The power of the courts to suspend sentences is to be exercised on judicial considerations. At Common Law, it was held in Ex parte U. S. (') courts possessed and asserted the right to exert judicial discretion in the enforcement of the law to temporarily suspend either the imposition of sente.nce or its executi0n when imposed to the end that pardon might be procured or Court exceeds its power by ordering that execution of a sentence imposr<i by it upon a. pie"' of guilt.y be suspended indefinitely during good behaviour upon considerations .wholly 1•xtraneous to the legality of the conviction: Ex parte U.S.(').

J\larshall, C. J., in U. S. v. George Wilson(') stated as follows:-

" ..................... It is a comtitucnt part of the judicial system that the judge sees only with judi cial eyes, and knows nothing respecting any particu lar case, of which be is not informed judicially". In Ex parte Grossman('), it was said that administra tion of justice by th·~ courts is not necessarily or always wise or considerate of circumstances which may mitigatJ a guilt and in order to n·medy this it waR thought necessary to vest t.his in sc;me other authority than the court to a.meliorate or n.void parti cular criminal judgmer: t~. The 1·xcrciso of this power has the effect of d!'stroying the deterrent elfrct of judi cial punishment. The extent of the two powers, judicial and executive and the difference between tho two bas been pointed out in United States v. Benz(') in which it was held that no usurpation of the pardon ing power of the executive is involved in the action of a. court in reducing punishment after the prisoner had served a part of tho imprisonment originally im po8ed. At page 358 tho distinction was stated as follows:-

" The judicial power and the executive power over sentences are readily distinguishable. To render judgment. is a judicial function. To carry the judg ment into effect is au executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua. judgment. To reduce a. sentence hy amendment. alters the terms of the judgment itself and is a judicial act as much as the imposition of the Rentcnco in the first instance". ing. power, partakes of the nature of an executive function ; which shows that giving of suspensions of The Stale of sentences is an exercise of executive power; Willis' Constitutional Law, p. 151.. Clemency is the function of the executive and it is the function of the courts to construe a Statute and nnt to defeat it as construed.

The judicial power therefore is exercisable on judi cial considerations. The courts would approach every question in regard to suspension with a judicial eye. They are unable to look to anything which is outside . the record or the facts which are proved before them. It is not their sphere to take into con sideration anything which is not strictly judicial.

court knows nothing of a case except what is brought before it in accordance with the laws of procedure and evidence and consequently this is a. power distinct from the power of the executive which may act, taking into consideration extra-judicial matters even on the ground that suspension, remission and commu tation may be more for public good and welfare than no interference. These are all matters of public policy and matters which are not judicial and are within the power of the executive and therefore it cannot be said that the two powers operate in the same field. No doubt they may have the same effect but they-operate in distinct fields, on differrnt principles taking wholly irreconcilable factors into consideration.

Taking the case of pardon· it is important lo note that pardon is granted for reasons other than inno cence. pardon, it has been said, "affirms the verdict and disaffirms it not". (28 Harvard Law Review at p. 647 by Samuel Williston).

Commutation of sentences is a power which is.exer cisable by the executive to ameliorate the rigours of the punishment by courts when death sentences are imposed. It was not contended that the power of commutation is not available to the executive after the sentence is passed and before an appeal is filed or pending the appellate proceedings. It has the same effect as reduction of a sentence by a court from tion for life as it used t-0 be. In England and in Amcril'a it is exercised on the condition of acceptance

¹ lie Stale of by the convict but no such limitation is imposed on the power of the executive under the Indian law. But whereas .the con rt will take into consideration only the circumstances which would justify the exercise of judicial power it is open to the executive to act on other grounds and the act of the executive is not sub ject to review by the courts, the executive being the sole judge Qf sufficinncy of facts and of the propriety of the action and no other branch has any control over executive action.

As to suspension of sentlince again in 426 of the

8.

Criminal Procedure Code it is expressly stated that an appellate court can suspend the 'Jentence (or reasons to be stated; no such limitation is impo&_ed on the executive under s. 401 of the Code. The language of the two sections themselves shows the field in which the two powers :iperatc although the elfoct may be the same. It is relevant to consider in this connection the grounds on which a court acts in regard to offen ces pu11ishablc with death or imprisonment. for life (s. 497 of Cr. P. C.) but such restrictions impede exe(;utive action. SimilR.rly when the Supreme Court acts under art. 142 it acts judicially and takes only those facts into consideration which are sufficieut in tho judicial sonKe to justify the exercise of its vower; so would be tbe ease when the power is exercised under the rules framed by the court. Thus it appPars tbat the power of the executive and of the judiciary to exercise the power under arts. 161 and 142 or under ss. 401 and 426 are different in nature and aro exer cised on different considerations and even may have different effect.

Executive power exercised in regard to sentences passed by courts is in its vny nature the exrrcise of constitutional authorit.y which negatives the orders of the court. Every time it is exercised it conflicts with some order of the court whether it is a case of pardon or commutation of sentence or a reprieve or suspen sion or respite. It is an interference with some action has been said in American judgments, e. g., Ex p~rte Grossman (¹ that although the Constitution has made

) the judiciary as independent of other branches as is practicable it is, as often remarked, the weakest of the three. It must look for a continuity of necessary co operation in the possible reluctance of either of the other branches to the force of public opinion. The action of the executive in interfering with sentences passed by courts is a matter which is not within the amplitude of the judicial power of the courts and whenever any action is taken by the executive, unless it is illegal, it is not justiciable nor subject to legisla tive control.

The power that this court exercises under Order 21, Rule 5 must also depend upon the decision of the question whether art. 145 can be used in derogation of the power given to the Governors under art. 161. As has been stated above, ·being subordinate legislation, it must in reality be subordinate to the provisions of the Constitution which is obvious from the fact that any revision of the articles of the Constitution will require the procedure laid down in the Constitution for its amendment whereas the rules made under the Constitution can be changed by the court itself with the approval of the President or by a Parliamentary enactment.

The language of art. 161 is of the widest amplitude and applies to the various forms of clemency men tioned therein. It' is not denied that the power of pardon is not affected by art. 142 and this power includes the power to reprieve. It would be an undue construction of the exercise of the power of pardon to take out from its purview that portion of it which is termed reprieve or stay of execution or suspension and respite of sentence which differs from suspension of sentences only in terminology. The construction suggested would be illogical because the plenitude of t~e language would remain unaffected before the peti tion for leave to appeal is filed and after the decision pended during the pendcncy of the appeal proceedings c,·en though the poil·er of pardon and of commuta tion remains intact and the suggested restriction is not borne out by the language of the article. And this construction is opposed to dHcisio11R of courts of America where tho power is similar as in India. Even on the analogy of the Privy Council case Balmukand v. King Emperor(') where reprieve was granted pend ing the hearing of the special leave petition, i.e., u pto tho date the petition was taken up, heard and decided and therefore uptil that date the reprieve was neces sary and proper. In Rogers v. Peck(') reprievo was granted for a period of time extending beyond the hcarirg of the appeal proceedings.

If the argument as to want of tho power of suspen sion during the period of pendency of an appeal is sustainable then tho power to commute must equally be so affected because what is commutatio11 when exerc\sed by the executive iS' called reduction of sentence when ordered by the court. The two are neither different in nature nor in effect.

Reference was made to s. 295 of the Government of India Act of 1935 whereby the prerogative of the King and of the Governor General as his delegate was specifically saved. Reference was also made to s. 209(3) of that Act which gave to the Federal Court the power of stay in any case; the argument being th.i.t the prerogative power of the Kiug and his dele gate the Governor General would not be unlimited but for its being expressly saved by s. 295(2). A close examination of these provisions and the application of rules of interpretation do not support the sound ness of this argument.

Sectiou 2011(3) is in Pa.rt IX The J udica.ture a.nd Chapter I the Federal Court. It gave power to thii Federal Court to stay executions in any case under appeal as follows:

S. 209(3) "The Federal Court may, subject to such terms or conditions as it may think fit to impose, order a. stay of execution in any case under appeal to

Section 295 is in Part XII Miscellaneous and under sub.head Provisions as to legal matters. Section 295 provided:-

S. 295(1) "Where any person has been sentenced to death in a Province, the Governor General in his discretion shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor General in Council immediately before the commencement of Part III of this Act, but save as aforesaid no authority in India outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the Province:

Provided that nothing in this sub-section· affects any power of any officer of His Majesty's forces to suspend, remit or commute a sentence passed by a court martial.

(2) Nothing in this Act shall derogate from the right of His Majesty, or of the Governor General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment".

Stay of execution is a term appropriate to civil proceedings as 0. 21, rr. 26 & 29 and 0. 41, r. 5 of the Code of Civil Procedure would show but even if it applied to criminal proceedings it would be of little assistance in understanding the meaning of art. 142(1) in any different manner from what has been said above. But s. 295(2) is pressed into service to show that wherever the power of the executive is intended to be overriding it is specifically so stated. So con strued the power exercisable by the Governor General in his discretion and of the Governor will be of lesser amplitude and subject to the limitation of s. 209(3), whereas the power of the King or the Governor General acting under s. 295(2) will not be so which is seemingly incongruous. Besides the words " nothing in this Act shall derogate" in s. 295(2) onfy emphasise the constitutional position of the King's prerogative and of his delegate and· was more in the nature of practice " Roy n'est lie par ascun statme, il ne soil expressement nosme" is a principle which has been accepted in this court qua. the Union or the States. " Where tho King has !lny prerogative, estate, right, title or interest. he shall not be barred of them by the genera.I words of an Act if be not named therein "; Broom's Maxims, p. 39 (1939 ed.); Province of Bombay v. Municipal Corporation of the City of Bombay('), where it was hold that Crown is not bound unless expressly named or is bound by "necessary impli cation".

If the argument of limitation of the King's prero gative because of these saving words is sound then it means in the Constitut.ion Act the British Parliament did contemplate a.nd provide that tho power of the King or of the Governor Genera.I as his delegate as to suspensions, remissiom or commutation would be overriding and oxercisable in spite of the pendency of a.n appeal in the Federal C'.-0urt.

There a.re seven reasons for denying tho argument of conflict between arts. 142 a.nd 161 :-

(I) As ha.s been discussed above, the two articles operate in two distinct fields where different conside rations for ta.king action apply. That is how the two articles a.re reconcilable i..nd should be reconciled. This interpretation accords with the rule of statutory co-existence stated in text books on Interpretation of Statutes, which is a.s follows:-

"It is sometimes found that the conflict of two Statutes is apparent only, a.s their objects are diffe rent a.nd the language of ea.ch is restricted to its own object or subject. When their language is so confin- . ed, they run in parallel lines without meeting". (Maxwell on Interpretation of Statutes (1953 Ed.), p. 170).

(2) The pr<'per rule of construction of: Statutes was la.id down in Warburton v. Loveland('):

"No rulo of construction ca.n require that when the words of a. Statute convey a. clear meaning ........ . it shall be necessary to introduce another pa.rt of thtt which thp .w?~ds ma:\'. h? ~apa.ble of such construction K. M. Nanauali as by poss1b1hty to d1mm1sh the efficacy of the other provisions of the Act ".

This rule was accepted in regard to the interpretation of ss. 89, 92 and 93 of the Australian Constitution in the State of Tasmania v. Commonwealth of Australia(') :

"Applying those expressions to these sections I should say they amount to this; Seeing that sec. 89 has an absolutely clear meaning, the rules of constru.

ction do not require us to introduce another part of the Statute which speaks with less perspicuity, and to apply that part to the construction of sec. 89. That would have the effect of diminishing the clearness of sec. 89 and appears to me to be an absolute inversion of the rule which is applicable in such a case".

In the instant case the words of art. 161 are clear and unambiguous. It is an unsound construction to put a fetter ·On the plenitude of the powers given in that article' by reading an earlier article which deals with the powers of a different department of Government and uses language " which speaks with less perspi cuity".

(3) Moreover it is a relevant consideration in the matter of interpretation that the two articles are in two different parts. There is ample authority for the view that one is entitled to have regard to the indicia afforded by the arrangement of sections and from other indications ; Dormer v. New Castle.

upon-Tyne Corporation(') per Slesser, L .. J. The arrangement of sections into parts and their headings are substantive parts of the Act and as is pointed out by Craies on Statute La.w (5th Ed.), p. 165, "they are gradually winning recognition as a kind of preamble to the enactments which they precede limiting or explaining their operation". They may be looked to as a better key to construction than a mere prea.mble.

Ibid p. 195.

meaning of the Factors Act, Lord Herschell se.id :-

"These headings are not in my opinion mere

Tlie Stal~ of marginal notes but the sections in t.he group to which they belong must be rea<l in conuection with them and interpreted in the.light of them".

Viscount Simon, L. C., said in Nokes v. Doncaster Amalgamated Collieries Ltd. (') :-

".Moreover, ~ec. 154 contemplates-or, at any rate, provides for-the diRsolution of the tre.nsforor company when the transfer of its undertaking has been made, e.nd there appears to he no means of calling be.ck to life the company so dissolved for sec. 294 occurs in Pe.rt V of the Companies Act, 1929, deal ing with winding up, whoroe.s sec. 154 is found in Pe.rt IV''.

These cases place accent on the principle the.t tho articles 142(1) and 161 dee.I with different subjects showing operation in separate fields and were not intended to overlap so as to be restrictive of each other.

(4) The le.ngue.ge of art. 161 is general, i.e., the power extends equally to all class of pardons known to the law whatever the nomenclature used ; Ex parte Wells (⁸ and therefore if the power to pardon is abso

) lute and exercisable at e.ny time on principles which are quite different from the principles on which judicial power is exercised then restrictions on the exercise of the lesser power of suspension for a period during which the appeal is pending in this court would be e.n unjustifiable limitation on the power of the executive. It could not have been tho intention of the framers that the amplitude of oxecutivo power should be restricted as to become suspended for the period of pendoncy of an appeal in the Supreme Court.

(5) If this interpretation is adopted it would lce.d to this rather incongruous result that if the appeal is pending in e. Court of Session or the High Court the power of the executive will he abundant, overriding will be restrictive when appeal is brought in the Sup reme Court.

(6) Article 161 is a later provision and when it was adopted the Constitution makers had already adopted art. 72 and arts. 142(1) and 145. It does not seem reasonable that by so juxtaposing the articles it was the intention of the framers to constrict the power of the· executive. The rules of interpretation on this point have thus been stated:.

(a) It is presumed that the legislature does not deprive the State of its prerogative powers unless it expresses its intention to do so in express terms or by necessary implication. Province of Bombay v. Muni cipal Corporation of the City of Bombay('); Director of Rationing & Distribution v. Corporation of Calcutta (²

). •

(b) It seems impossible to suppose that so material a change in the constitutional powers of the Governor was ig,tended to be effected by a side wind.

(c) The law will not allow alteration of a Statute by construction when the words may be capable of pro per operation without it; Kutner v. Philips(').

(d) It cannot be assumed that the Constitution has given with one hand what it has taken away with another; Dormer v. New Castle-upon-Tyne Corporation ('). -

(e) If two sections are repugnant, the known rule is that the last must prevail: Wood v. Riley (⁵ per

), Keating, J. - _

(7) The power given to the Governor in tegard to pardons is a specific power specially conferred as· was vested in the colonial and British Governors in Indian provinces during Bri"tish days. The power give~ to the court under Art. 142(1) is a general power exer cisable for doing complete justice in any cause or matter. If they, i.e., arts. 161 and 142(1) deal with must prevail over art. 142(1) which is in accord with the constitutional position as above discussed.

In the circumstances of this case I would grant tho petitioner r.•xemption prayed for and proceed to hear tbe special leavP. petition on merits.

BY COURT: In view of t.hc majority ,Judgment, the petition is dismissed.

Petition dismissed. THE UPPER GA:\GES St;CAH .MILLS LTD. v.

KHALIL-UL-RAHlllA:\ A.:\'D OTHEHS. (B. P. SrnHA, C. J., B. P. GA.JENDRAGADKAR,

K. N. WANCHOO, K. C. DAS GUP'l'A aud c.

J. ,JJ.)