Full Judgment Text
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PETITIONER:
K.M. NANAVATI
Vs.
RESPONDENT:
THE STATE OF BOMBAY
DATE OF JUDGMENT:
05/09/1960
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
KAPUR, J.L.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
CITATION:
1961 AIR 112 1961 SCR (1) 497
CITATOR INFO :
D 1963 SC 996 (14)
RF 1976 SC1750 (12)
D 1988 SC1531 (159)
RF 1989 SC 653 (12)
RF 1990 SC1480 (77)
ACT:
Sentence, suspension of-Order by Governor during pendency of
appeal in the Supreme Court-If constitutionally valid-
Governor’s power of clemency-Court’s Power of granting bail
or suspending sentence-Harmonious exercise of two Powers-The
Constitution of India, Arts. 161, 142-Supreme Court Rules,
Order XXI, r. 5.
HEADNOTE:
The petitioner was Second in Command of 1. N. S. Mysore
which came to Bombay in the beginning of March, 1959. Soon
thereafter he was arrested on a charge of murder under s.
302 of the ’Indian Penal Code and was placed, and continued
to remain, in naval custody all along during his trial. In
due course he was placed on trial by a jury before the
Sessions Judge, Greater Bombay, in which the jury returned a
verdict of not guilty by a majority; but the Sessions judge
disagreeing with the verdict of the jury made a reference to
the High Court which convicted the petitioner under s. 302
of the Indian Penal Code and sentenced him to imprisonment
for life. On the same day when the High Court pronounced
its judgment the Governor of Bombay passed an order under
Art. 161 of the Constitution of India suspending the
sentence passed by the High Court of Bombay on the
petitioner until the appeal intended to be filed by him in
the Supreme Court against his conviction and sentence was
disposed of and subject meanwhile to the condition that he
shall be detained in the Naval Jail custody. A warrant for
the arrest of the petitioner which was issued in pursuance
of the judgment of the High Court was returned unserved with
the report that it could not be served in view of the order
of the Governor suspending the sentence passed upon the
petitioner.
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In course of the hearing of an application for leave to
appeal to the Supreme Court filed by the petitioner in the
High Court the matter of the unexecuted warrant was placed
before it and a Special Bench of the High Court after
examining the validity of the action taken by the Governor
came to the conclusion that the order passed by the Governor
was not invalid, that the order for detention of the
petitioner in naval custody was not unconstitutional and
that the sentence passed on the petitioner having been
suspended the provisions of 0. XXI, r. 5, of the Supreme
Court Rules did not apply and it was not necessary for the
petitioner to surrender to his sentence.
Thereafter the petitioner filed an application for special
leave in the Supreme Court and also another application
praying for exemption from compliance with the aforesaid
rule and
498
for the hearing of his application for special leave without
surrendering to his sentence. His plea at first was that as
he was not a free man it was not possible for him to comply
with the requirements of 0. XXI, r. 5, of the Supreme Court
Rules; but he subsequently amended it to the effect that the
aforesaid Rule did not apply to his case in view of the
Governor’s order. On a reference of this matter by a
Division Bench of this Court to the Constitution-Bench for
hearing,
Held, 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. The Governor’s order suspending 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 whereupon this Court being in seisin
of the matter would consider whether 0. XXI, r. 5 should be
applied or the petitioner should be exempted from the
operation thereof as prayed for. It would then be for this
Court to pass such orders as it thought fit as to whether
bail should be granted to the petitioner or he should
surrender to his sentence or to pass such other order as the
court deemed fit in the circumstances of the case.
On the principle of harmonious construction and- to avoid a
possible conflict between the powers given under Art. 161 to
the Governor and under Art. 142 to the Supreme Court, both
of which are absolute and unfettered in their respective
fields of operation, it must be held that. Art. 161,does
not deal with the suspension of sentence during the time
that Art. 142 is in operation and the matter is sub-judice
in the Supreme Court.
Per KAPUR J. (dissenting)-The language of Art. 161 is of the
widest amplitude. It is plenary and an act of grace and
clemency and may be termed as benign prerogative of mercy;
The power of pardon is absolute and exercisable at any time.
Rules framed under Art. 145 are subordinate legislation and
cannot override the provisions of Art. 161 of the
Constitution itself. While the Governor’s power to grant
pardon is a power specially conferred upon him as was vested
in the British Governor in British days, the power given to
the Court under Art. 142(1) is a general power exercisable
for doing complete justice in any cause or matter, and if
they deal with the same matter then Art. 161 must prevail
over Art. 142(1). The two powers may have the same effect
but they operate in distinct fields on different principles
taking wholly irreconcilable factors into consideration.
The action taken by the executive being the exercise of
overriding power is not subject to judicial review.
It could not have been the intention of the framers of the
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Constitution that the amplitude of executive power should be
restricted as to become suspended for the period of pendency
of an appeal in the Supreme Court.
499
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Misc.Petn. No.
320/60.
Application for exemption from compliance with the
requirements of Rule 5 of Order XXI, Supreme Court Rules,
1950 (as amended).
1960. July 18, 19, 20 21, 22.
S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L.
Vohra, for the petitioner.
H.M. Seervai, Advocate-General for the State of BombayAtul
Setalved and R. H. Dhebar, for the respondent.
[SinhaC. J.-Do you dispute the power of the Court to
make this rule ?]
H.M. Seervai:--No, My Lord. The Court imposes a penalty
in ’its judicial capacity; the Executive remits the penalty
in its executive capacity. There is no clash between the
two powers. The powers of the Executive do not collide with
the powers ’of the judiciary. The prerogative of the King
or the President can never be in conflict with the
judiciary, executive or legislature. Prerogatives come to
aid the process of justice. Power of pardon is plenary in
nature and unfettered. It could be exercised at any time
after the commission of the offence, before indictment,
during the trial and after the trial.
[Sinha C. J.-Is not that power of pardon exercised before
the trial ?]
Pardon is given after the offence is proved. In the United
States the question is never asked whether the President has
invaded the power of the judiciary.
[Sinha C. J.-So far as India is concerned take a ,case like
this: A man is convicted for murder and. sentenced to
imprisonment for life. But subsequently it is found that
the deceased died a natural death or the deceased appeared
alive afterwards. What will happen ?]
A pardon will be granted(s.-401). The President is entitled
to pardon a person convicted for an offence punishable with
death, United States v. Wilson, 8 L. Ed. 640 at 644, Ex
parte Wells, 15 L. Ed. 421, 423.
500
A free and unconditional pardon has the effect of
obliterating the crime. Section 426(1) empowers the Court
to suspend the sentence or grant bail. The Executive,
Judiciary and Legislature, paralysing each other never
happens. United States v. Klein, 20 L. Ed. 519, Ex Parte
Grossman, 69 L. Ed. 527.
[SUBBA RAO J.-Your argument assumes that if the Governor’s
order was valid then the Supreme Court Rule would not come
in. It may not be necessarily so because in the present
case there was a conviction and sentence and the accused has
no right of appeal. The accused invited the order of the
Governor. Entertainment of the appeal by special leave is
in the discretion of the Supreme Court. Unless there are
adequate reasons for the Governor to make this order, why
should we use our discretion to give exemption to the
accused from the rules of the Court ?]
The sentence having been suspended there is no sentence and
therefore this Court need not insist on his surrender.
[SUBBA RAO J.-The provisions, of Art. 161 did not say that
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the power under it could be exercised notwithstanding other
provisions of the Constitution. Was it, therefore, not
necessary to hormonise this power with other constitutional
provisions such as Art. 142 ?]
[KAPUR J.-In India have the Courts power to suspend a
sentence?]
Yes, in a limited way as provided in s. 426.
[KAPUR J.-If the sentence is suspended, there is no
sentence.]
No, there is no sentence to surrender to. The execution of
sentence is an executive power. The function of the Court
ends with the passing of the sentence. To carry the
sentence into execution is an executive order. United
States v. Benz, 75 L. Ed. 354, 358.
In India we start with s. 401 of the Code of Criminal
Procedure, 1898, and s. 295 Government of India Act,1935.
Pardon is a part of the Constitutional scheme, Balmukand v.
King, Emperor, L. R. 42 I. A. 133.
501
Exercise of prerogatives is in the jurisdiction of the
Executive and not the judiciary, Lala Jairam Das v. King
Emperor, L. R. 72 1. A. 120. The powers are in aid of
justice.
[SUBBA RAO J.-Your argument is that one acts in the judicial
field, while the other acts in the executive field and hence
there is no conflict. But whatever the nature of the power,
the Governor in exercising that power is encroaching on the
field occupied by the Supreme Court. Under the Constitution
the Supreme Court can entertain appeals and pass the
necessary orders and perhaps, under the rules suspend or
stay execution of a sentence. On the other hand the
Governor under Art. 161 has powers to suspend the sentence.
I am suggesting that where there is a conflict of
jurisdiction between the Judiciary and the Executive is it
not reasonable to bring harmony between these two? What is
wrong in confining the power of the Governor to cases where
there is no appeal pending before the Supreme Court ? Can
the executive interfere with the judiciary in the midst of a
case?]
Yes, in its administrative capacity it can ask the.
Advocate-General to enter a nolle prosequi and terminate the
trial. This a statutory power. Babu Lal Chokhani v.
Emperor, [1937] 1 Cal. 464. Court refused bail but the
executive suspended the sentence.
The State of Bihar v. M. Homi, [1955] 2 S.C.R. 78.
Rule 5 Order XXI, of the Supreme Court Rules represent’s a
well-settled practice of all courts but it cannot affect the
power of pardon or the exercise of prerogatives which is
unfettered. The Rule postulates that there is a sentence to
surrender to’. Under Arts. 72, 161 the President’s
prerogative is not made subject to any parliamentary
legislation. There is no limit to Art. 72 or Art. 161 in
the Constitution express or implied, Hari Vishnu Kamath v.
Syed Ahmad Ishaque, [1955] 1 S. C. R. 1104. The powers of
the Court and the Executive are distinct and separate. The
Executive comes in after the Court has performed its
function.
502
[KAPUR J.-YOU are talking about suspension of the sentence
but can the Supreme Court suspend the sentence ? We can
grant bail but can we suspend the sentence?
Yes, the Supreme Court has the power to stay the execution
of sentence.]
[KAPUR J.-IS the condition imposed upon Commander Nanavati
illegal ?]
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No, nobody has said so.
The Court can say Judicially that justice requires that a
convicted person should remain in jail but the President can
say on considerations of mercy that he should be set at
liberty, King v. S. S. Singh, I.L.R. 32 Pat. 243. Power of
prerogative is far wider than the judicial powers of the
Court. The expression " at any time " in s. 401, Code of
Criminal Procedure, recognises this principle.
[GAJENDRAGADKAR J.-Can the naval authorities keep the
petitioner in naval custody ? Is it legal ?]
The naval authorities made no such request. The Governor
ordered him to be kept in naval custody and the naval
authorities did not object. There is nothing illegal about
it. It was perfectly legal. The validity of the Governor’s
order has not been referred to this constitutional bench of
the Court. There is a distinction between illegal and
unlawful. Illegal is that which the law directly forbids;
unlawful is that which the law does not recognise.
[SINHA C. J.-What is unlawful may become lawful by consent
but what is illegal cannot become legal even by consent.]
The Governor’s order should not be held to be illegal
without any complaint to that effect from the parties
concerned and in their absence. When the navy accepted the
Governor’s order it could be presumed that there was a
usage, S. 3(3)(12), Navy Act. There is no section in the
Navy Act which prohibits such custody.
[GAJENDRAGADKAR J.7-18 this the position now that the
Provost Marshall is keeping the petitioner in
503
his custody without any express provision of the Navy Act?]
Section 14 of the Navy Act. There is a difference between a
private person and a naval officer being detained in naval
custody. Commander Nanavati is still in naval service. He
cannot leave the naval service.
[SUBBA RAO J.-There are two ways of reconciling the powers
of the Governor under Art. 161 and those of the Supreme
Court under Arts. 142, 144, 145. One way was to say that
the Supreme Court had no power when the Executive exercised
its powers. The other way was to say that while both had
powers, so far as pardon and remission were concerned the
Executive had the exclusive power, but as far as suspension
was concerned, when proceedings were pending in the Supreme
Court the Executive could not make an order impinging upon
the Supreme Court’s power.]
But in the interest of justice the Supreme Court can pass
any suitable order. The power of the Supreme Court under
Art. 141 is a power generally- exercisable in all cases but
the Governor’s power is a special power. If there is a
conflict between a General power and a special power the
special power should prevail although I don’t admit that
there is a conflict.
H. N. Sanyal, Additional Solicitor-General of India,S. M.
Sikri, Advocate-General for the State of Punjab and T. M.Sen,
for the Attorney General of India. There is no conflict at
all. The power of the Supreme Court is a judicial power;
the power of the Governor is an executive power. They
cannot collide at all. The Supreme Court can certainly
exercise its power but let it not disregard the power of the
executive. Let both the powers be harmonised.
C.B. Agarwala (Amicus Curiae)-The Supreme Court is a
Court of record under Art. 129 and has the constitutional
privilege of prescribing. its procedure under which it will
exercise its discretion vested in it under the
Constitution. By Art. 145 the Supreme
65
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504
Court has the constitutional power to lay down rules
imposing conditions under which alone it would entertain a
special leave petition.
The material rule is made under the constitutional right
given to the Supreme Court as a Court of Record and not
under a law made under Art. 245. Subordinate legislation
presupposes a rule made under laws enacted under Art. 245.
Its analogy cannot be .applied to rules under Art. 145. The
fact that the rules made by the Supreme Court under Art.
145. require the approval of the President cannot convert
the rules into a law made under Art. 245.
The rule in question made by the Supreme Court requires that
the special leave petition is subject to the condition that
the petitioner surrenders to the authority of the Supreme
Court, and by passing the order in question the Governor has
deprived the Supreme Court of its authority over the custody
of the accused pending the special leave petition. Article
161 read with Art. 154 shows that the Governor even while
exercising his constitutional powers cannot affect, modify
or override the powers of the Supreme Court or the procedure
prescribed by it.
After a special leave petition is made to it or when the
appeal is admitted, the Supreme Court has ample jurisdiction
to give relief by way of suspension of sentence under Art.
141 and the rules. Power of suspension of sentence is not
exercisable by the Executive when relief can be granted by
the trial Court or a competent Court of appeal.
The appropriate construction of the rule would indicate that
the Governor’s powers under Art. 161 operate only up to the
stage when an application for special leave is made under
Art. 136 and cannot interfere with the authority of the
Supreme Court thereafter.
Assuming, without admitting, that the Governor could
interfere with the authority and jurisdiction of the Supreme
Court he could do so only if a valid order was made under
Art. 161. The order under consideration being subject to an
illegal condition is an illegal order. Even if, the
condition is not illegal it has been
505
operated only by the petitioner’s voluntary consent with the
object of not complying with the rule of the Supreme Court.
The Supreme Court will decline to exercise its discretion in
favour of the petitioner who by his voluntary act put
himself out of its jurisdiction.
Under Art. 144 the Governor’s authority is bound to aid the
court in the exercise of its jurisdiction. It is open to
the petitioner to approach the Government to modify the
Governor’s order to enable him to comply with the procedure
of the Supreme Court.
[KAPUP. J.-Has the Court power to suspend a sentence ? Has
any court ever done so ? Has any court ever ordered that the
sentence will take effect after a certain period of time ?]
The appellate Court has the. power to suspend the sentence
under Art. 142.
[SINHA C. J.-The Executive can intervene at, any time during
the trial.]
Yes, in the case of pardon, The State of Bombay v. The
United Motors (India) Ltd., [1953] S.C.R. 1069.
[SINHA C: J.-The argument of the petitioner is that there is
no sentence in operation and therefore there is nothing to
surrender to.]
There is apparently a conflict. The Court says the
petitioner must surrender to his sentence. The Executive
says that he need not surrender and will remain in some
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other custody. The Governor has extended the period of,
suspension till the decision of the petitioner’s appeal in
this Court. There is clash with the rule of this Court.
[SINHA C. J.-If the Supreme Court refused bail can the
executive suspend the sentence ?]
No, it cannot, in cases of suspension there is apparently a
conflict. There is a distinction between pardon and
suspension. Suspension stands on a different footing.
Pardon can be granted at any stage but suspension of
sentence can be made only after the sentence is inflicted.
H.M. Seervai in reply. Nothing in Arts. 142, 145 and ss.
411, 426, Code of Criminal Procedure, will
506
supersede the powers of the Governor to grant reprieve, etc.
The Code of Criminal Procedure gives the power of
suspension, of bail, etc.
[KAPUR J.-Did the Federal Court have power to suspend a
sentence.]
Yes, it had the power to grant bail or stay execution of
sentence. The power of the Court to suspend is not
absolute.
[SINHA C. J.-The Executive is bound to execute the orders of
the Court.]
Yes, but if the Government, after the passing of the Court’s
order, itself in its own jurisdiction passes an order
suspending the sentence the Executive in that case has no
authority to execute the order of the Court, United States
v. Benz, 75 L. Ed. 354, Hales Pleas of the Crown,-Reprieves
before or after the judgment, p. 412, Rogers v. Peck, 50 L.
Ed. 256Reprieve being granted when a matter was before the
Court.
1960. September 5. The Judgment of Sinha, C. J.,
Gajendragadkar, Subba Rao and Wanchoo, JJ., was delivered by
Sinha C. J. Kapur, J., delivered a separate Judgment.
SINHA C. J.-This matter has been placed before the
Constitution Bench in father extraordinary circumstances, as
will presently appear. It involves the question as to what
is the content of the power conferred on the Governor of a
State under Art. 161 of the Constitution ; and whether the
order of the Governor of Bombay dated March 11, 1960,
impinges on the judicial powers of this Court, with
particular reference to its powers under Art. 142 of the
Constitution.
For the determination of the constitutional issue raised in
this case, it is not necessary to go into the merits of the
case against the petitioner. It is only necessary to state
the following facts in order to appreciate the factual
background of the order of the Governor of Bombay aforesaid
impugned in this case. The petitioner was Second in Command
of 1. N. S. Mysore, which came to Bombay in the beginning of
507
March 1959. On April 27, 1959, the petitioner was arrested
in connection with a charge of murder under s. 302 of the
Indian Penal Code. He was produced before the Additional
Chief Presidency Magistrate, 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 Naval
Provost Marshall in exercise of his authority under s. 89(2)
and (3) of the Navy Act. There upon the Magistrate made the
order directing that the accused should be detained in the
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Naval Jail and Detention Quarters in Bombay. The Magistrate
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 before 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 made a reference to the High
Court under s. 307 of the Criminal Procedure Code,
disagreeing with the verdict of the jury. The reference,
being 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 day, the Governor of Bombay passed the following
order:-
" In exercise of the powers conferred on me by
Article 161 of the Constitution of India, 1,
Shri Prakasa, 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 go. 22 of IVth
Sessions of 1959 until the appeal intended to
be filed by him in the Supreme Court against
his conviction and sentence is disposed of and
508
subject meanwhile to the conditions that he
shall be detained in the Naval Jail Custody in
1. N. S. Kunjali".
In pursuance of the judgment of the High Court, a writ
issued to the Sessions Judge, Greater Bombay, communicating
the order of the High Court convicting and sentencing the
petitioner as aforesaid. The Sessions Judge issued a
warrant for the arrest of the accused and sent it to the
police officer in charge of the City Sessions Court for
Greater Bombay for execution. The warrant was returned
unnerved with the report that the warrant could not be
served in view of the order set out above passed by the
Governor of Bombay suspending the sentence upon the
petitioner. The Sessions Judge then returned the writ to-
gether with the unexecuted warrant to the High Court.
In the meantime an application for leave to appeal to the
Supreme Court was made soon after the judgment was
pronounced by the High Court and the matter was fixed for
hearing on March 14, 1960. On that day the matter of the
unexecuted warrant was placed before the Division Bench
which directed that, in view of the unusual and
unprecedented situation arising out of the order of the
Governor the matter should be referred to a larger 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 permitted two
Advocates, Mr. Kotwal and Mr. Pranjpe, to appear on behalf
of the Western India Advocates’ Association. Similarly, Mr.
Peerbhoy was also permitted to appear along with Mr. Latifi
on behalf of the Bombay Bar Association. They were heard as
amicus curiae in view of the fact that the Advocate General
for the State of Bombay and the counsel for accused were
both sailing in the same boat, that is to say, both of them
were appearing to support the order made by the Governor.
In view of the great importance of the issues involved, the
Court allowed those Advocates to represent the other view
point. The Advocate General of Bombay as also counsel for
the
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509
accused made objections to the Court hearing the Advocates
aforesaid on the ground that they had no locus standi. The
Advocate General of Bombay also raised 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 accused 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 examined 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 invalid. It also held that the condition
of the suspension of the order that the petitioner be
detained in naval custody was also not unconstitutional,
even 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
510
Supreme Court Rules will not, therefore,
apply in this case".
The High Court also overruled the plea of mala fides. In
the result, the High Court held that as the order made 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 had been
disposed of, unless the order made by the Governor stands
cancelled or withdrawn before that event.
The petitioner filed his petition for special leave in this
Court on April 20,1960, and also made an application 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 petitioner 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 behavior
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 petition for special leave to
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appeal be posted for hearing without his surrendering to his
sentence. On April 25, 1960, the special leave petition
along with the application for exemption aforesaid was
placed before a Division Bench which passed the following
order:
"This is a petition for special leave against
the order passed by the Bombay High Court on
reference, convicting the petitioner under s.
302 of the Indian Penal Code and sentencing
him to imprisonment for life. Along with his
petition for special leave an application has
been filed by the petitioner praying that he
may be exempted from surrendering under 0.
XXI, r. 5, of the Rules of this Court. His
contention in this application 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
511
under Art. 161 of the Constitution he is not a
free man to do so and that is put forward by
him as an 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, i
n
consultation with the parties concerned, when
this application 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 had 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 afterthought. Certainly, it came
after the Division Bench had directed the constitutional
matter to be heard as a preliminary 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
66
512
Court so that the hearing of his special leave petition
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might proceed in the ordinary course, but he was not in a
position to make a categorical answer and preferred to have
the constitutional question determined on its merits. We
had the assistance of Mr. C. B. Aggarwala, who very properly
volunteered his services as amicus curiae to represent the
other view point. In this Court also the situation was the
same as in the High Court, namely, that unless there was an
amicus curiae to represent the opposite view point, the
parties represented before us were not contesting the
validity of the Governor’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 preliminary
question before dealing with the merits of the petitioner’s
case.
The learned Advocate General of Bombay has argued 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 unfettered ; that it is to be exercised not as a matter
of course, but in special circumstances requiring the
intervention of the Head of the Executive; that the power
could be exercised at any time after the commission of an
offence; that this power being in the nature of exercise of
sovereign 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 exercised unconditionally or subject to
certain conditions to be imposed by the authority exercising
the power; that such conditions should not be illegal or
impossible of performance or against public policy. It was
further argued that the power of pardon is vested in the
Head of the State as an index of sovereign authority
irrespective of the form of Government. Thus the President
of the United States of America and Governors of States,
besides, in some cases Committees, have been vested with
those powers, which cannot be derogated from by a Legisla-
ture. So far as India is concerned, before the Constitution
came into effect such powers have been regulated by statute,
of course, subject to the power of the
513
Crown itself. After the Constitution, the power is
contained in Art. 72 in respect of the President, and Art.
161 in respect of the Governor of a State. Articles 72 and
161 are without any words of limitation, unlike the power of
the Supreme Court contained in Arts. 136, 142, 145 and other
Articles of the Constitution. Hence, what was once a
prerogative of the Crown has now or 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 that the
two powers, namely, the power of the Executive to grant
pardon, in its comprehensive sense, and of the Judiciary are
completely apart and separate and there cannot be any
question of a conflict between them, because they are
essentially different, the one from the other. The power of
pardon is essentially an executive action. It is exercised
in aid of justice and not in defiance of it. With reference
to the particular question, now before us, namely, how far
the exercise of the executive 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. XXI of the Rules of this Court
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 sentence running there could not be any question
of the one trespassing into the field of the other. Rule 5
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aforesaid of this Court represents the well settled practice
of this Court, as of other Courts, that a person convicted
and sentenced to a term of imprisonment should not be
permitted to be in contempt of the order of this Court, that
is to say, should not be permitted to move the appellate
court without surrendering to the sentence. But the
petitioner is not in such contempt, because r. 5 did not
apply to him. The order of sentence against him having been
suspended, he is not disobeying any rule or process of this
Court or of the High Court. The power of the Supreme Court
to make rules is subject to two limitations, namely, (1) to
any law made by Parliament and (2) the approval of the
President. On the other hand,
514
Arts. 72 and 161 enshrine the plenary powers of the
sovereign State to grant pardon etc., and are not subject to
any limitations. There could, therefore, be no conflict
between these two, and if there were any conflict at all,
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 passed
against the petitioner had 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 provisions 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 had been
submitted to by the 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 judgment was
entirely uncalled for, because once it is held, as was held
by the High Court, that the Governor’s order was not
unconstitutional, it was not open to the High Court to make
observations which would suggest that the Governor had
exercised his power improperly. If the exercise of the
power by the Governor is not subject to any conditions, and
is not justifiable, it was not within the power of the High
Court even to suggest that the Governor should not have
passed the order in question. The learned Additional
Solicitor General adopted the able arguments of the Advocate
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 assistance to the Court, argued that the exercise of
the rule making power by the Supreme Court is not a mere
statutory power, but is a constitutional privilege; that the
Supreme Court alone could
515
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 constitutional power of the
Supreme Court under Art. 145 and that the Advocate-General
was in error in describing it as subordinate legislation ;
that ’the fact that the rules made by this Court under Art.
145 of the Constitution require the approval 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
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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 ample
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 order in that
respect, the Governor could not intervene so as to interfere
with the orders of the Court. Alternatively, it was argued
that, even assuming that an order of suspension in terms
made by the Governor,
516
could at all be passed during the pendency of the
application for leave to appeal to this Court, such an order
could be passed only by the President, and not by the
Governor. In any view of the matter, it was further argued,
the Governor could pass an order contemplated by Art. 161,
but could not add a condition, as he did in the present
case, which was an illegal condition. It was further argued
that the generality of the expressions used in s. 401 of the
Criminal Procedure Code has to be out down by the specific
provisions of s. 426 of that Code. In other words, when
there is an appeal pending or is intended to be preferred,
during that limited period, the trial court itself or the
appellate court, has to exercise its judicial function in
the matter of granting bail etc. ; and the appropriate
Government is to stay its hands during that time.
Before dealing with the main question as to what is the
scope of the power conferred upon the Governor by Art. 161
of the Constitution, it will be convenient to review in a
general 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 been recognised since time
immemorial as being vested in the sovereign, wherever the
sovereignty might lie. Whether the sovereign happened to be
an absolute monarch or a popular republic or a
constitutional king or queen, sovereignty has always been
associated with the source of power-the power to appoint or
dismiss public servants, the power to declare war and
conclude peace, the power to legislate and the power to
adjudicate upon all kinds of disputes. The King, using the
term in a most comprehensive sense, has been the symbol of
the sovereignty of the State from whom emanate all power,
authority and jurisdictions. As kingship was supposed to be
of divine origin, an absolute king had no difficulty in
proclaiming and enforcing his divine right to govern, which
includes the right to rule, to administer and to dispense
justice. It is a historical fact that it was this claim of
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divine right of kings that brought the Stuart Kings of
England in conflict with Parliament as the
517
spokesman of the people. We know that as a result of this
struggle between the King, as embodiment of absolute power
in all respects, and Parliament, as the champion of popular
liberty, ultimately 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 executive power vests in members of the
Government, collectively called the 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 highest
courts, the members of the Government and the public
servants, 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 the 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 Dame by the Executive, the Legislature and the
Judiciary. This dispersal of the Sovereign’s absolute power
amongst the three wings of Government has now
518
become the norm of division of power; and the prerogative is
no greater than what the law allows. In the celebrated
decision of the House of Lords in the case of Attorney
General v. De Keyser’s Royal Hotel, Limited (1) which
involved the right of the Crown by virtue of its
prerogative, to. take possession of private property for
administrative purposes in connection with the defence of
the realm, it was held by the House of Lords that the Crown
was not entitled by virtue of its prerogative or under any
statute, to take possession of property belonging to a
citizen for the purposes aforesaid, without paying
compensation for use and occupation.
It was argued by Sir John Simon, K. C., for the respondents
that:-
" The prerogative has been defined by a
learned author as ’the residue of
discretionary or arbitrary’ authority which at
any given time is legally left in the hands of
the Crown’. It is the 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 Royal Prerogative. It has
been taken away by necessary implication
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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 delivered the leading
opinion of the House in these terms:
" The prerogative is defined by a learned
constitutional 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 the Act could be
effected by the 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 prerogative
being curtailed ". (See p. 526 of the Report).
This position has been recognised in Halsbury’s Laws
(1) [1920] A.C. 508.
519
of England, Volume 7, Third Edition, at p. 221, in these
words:-
.lm15
" The prerogative is thus created and limited by the common
law, and the Sovereign can claim no prerogatives except such
as the law allows, nor such as are contrary to Magna Carta,
or any other statute, or to the liberties of the subject.
The courts have jurisdiction, therefore, to inquire into the
existence or extent of any alleged prerogative..... .
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 argument 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 grant pardon
and over-emphasis on judicial decisions which deal directly
with the said question would not be very helpful for our
present purpose. 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 the 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 in
1898. Section 401 of the Code gives power to the executive
to suspend the execution of
67
520
the sentence or remit the whole or any part of the
punishment without conditions or upon any conditions which
the person sentenced accepts. Section 402 gives power to
the executive without the consent of the person sentenced to
commute a sentence of death into imprisonment for life and
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also other sentences into sentences less rigorous in nature.
In addition the Governor-General had been delegated the
power to exercise them prerogative power vesting in His
Majesty. Sub-section (5) of s. 401 also provides that
nothing contained in it shall be deemed to interfere with
the right of His Majesty, or the Governor-General when such
right is delegated to him, to grant pardons, reprieves,
respites or remissions of punishment. This position
continued till the Constitution came into force. Two
provisions were introduced in the Constitution to cover the
former royal prerogative relating to pardon, and they are
Arts. 72 and 161. Article 72 deals with the power of the
President to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence. Article
161 gives similar power to the Governor of a State with
respect to offenses against any law relating to a matter to which the ex
ecutive power of the State extends. Sections
401 and 402 of the Code have continued with necessary
modifications to bring them into line with Arts. 72 and 161.
It will be seen, however, that Arts. 72 and 161 not only
deal with pardons and reprieves which were within the royal
prerogative but have also included what is provided in ss.
401 and 402 of the Code. Besides the general power, there
is also provision in ss. 337 and 338 of the Code to tender
pardon to an accomplice under certain conditions.
In this case we are primarily concerned with the extent of
the power of pardon vested in the State so far as the
Governor is concerned by Art. 161 of the Constitution
Article 161 is in these terms:
"1 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 against
521
any law relating to a matter to which the
executive power of the State extends."
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 in very general terms. It
is, therefore, argued that they are not subject to any
limitations and the respective area of exercise of power
under these two Articles is indicated separately in respect
of the President and of the Governor of a State. It is
further argued that the exercise of power under these two
Articles is not fettered by the provisions of Arts. 142 and
145 of the, Constitution or by any other law. Article
142(1) is in these terms:-
" The Supreme Court in the exercise of its
jurisdiction 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 so 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
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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 approval of the President
to make rules for regulating 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 Rules of this
Court was framed under Art. 145 and is in these terms:-
"Where the- petitioner has been sentenced to a
522
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."
This rule was, in terms, introduced into the Supreme Court
Rules last year and it only crystallized the preexisting
practice of this Court, which is also the practice in the
High Courts. That practice is based on the very sound
principle which was recognised long ago by the Full Bench of
the High Court of Judicature, North Western Provinces, in
1870, in the case of The Queen v. Bisheshar Pershad (1). In
that case no order 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 the accused had
been ordered, with a view to compelling him to surrender.
The validity of the warrant had been challenged before the
High Court. The High Court refused to entertain his
petition until he had surrendered because he was deemed to
be in contempt of a lawfully constituted authority. The
accused person in pursuance of the order of the High Court
surrendered and after he bad surrendered, the matter was
dealt with by the High Court on its merits. But as observed
above the Rules framed under Art. 145 are only in aid of the
powers of this Court under Art. 142 and the main question
that falls for consideration is, whether the order of
suspension passed by the Governor under Art. 161 could
operate when this Court had been moved for granting special
leave to appeal from the judgment and order of the High
Court. As soon as the petitioner put in a petition for
special leave to appeal the matter became sub-judice in this
Court. This Court under its Rules could insist upon the
petitioner surrendering to 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 is not disputed
that this Court has the power to stay the execution of the
sentence and to grant bail pending the
(1) Vol. 2, N.W.P. High Court Reports, P. 441.
523
disposal of the application for special leave to appeal.
Rule 28 of 0. XXI of the Rules does not cover that 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 grant bail under the powers 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
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are without any limitation, the provisions of s. 401 of the
Code of Criminal Procedure are also in similarly wide terms,
and do not admit of any limitation’s 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 tile Court under s. 426,
which enables the Court pending appeal to suspend the
sentence or to release the appellant on bail. It will be
seen from the language of s. 426 of the Code of Criminal
Procedure dealing with the power of the appellate court
that, for reasons to be recorded in writing, the court may
order that the execution of the sentence be suspended or
that if the accused is in confinement he may be released on
bail or on his own bond. Section 401 occurs in Chapter
XXIX, headed " of suspensions, remissions and commutations
of sentences ". This Chapter, therefore, does 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 "of appeal, reference and revision
". Section 426, therefore, deals specifically with a
situation in which an appeal is pending and the appellate
’court has seisin of the case and is thus entitled to pass
such orders as
524
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 pendency of an
appeal is not envisaged, s. 426 deals with a situation in
which pendency of an appeal is postulated. 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 context of s. 401 "
any time " can only mean after conviction. 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. 401 with this difference that
powers under s. 426 can only be exercised by an appellate
court pending an appeal. When both the provisions are thus
unfettered, they have to be harmonised so that there may be
no conflict between them. They can be harmonised without
any difficulty, if s. 426 is held to deal with a special
case restricted to the period while the appeal is pending
before an appellate court while s. 401 deals with the
remainder of the period after conviction. We see no
difficulty in adopting this interpretation nor is there any
diminution of powers conferred on the executive by s. 401 by
this interpretation. The words " at , any time " emphasise
that the power under s. 401 can be exercised without limit
of time, but they do not necessarily lead to the inference
that this power can also be exercised while the court is
seized of the same matter
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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 hearing of the
525
special leave petition, that would not affect the power 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 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 often said, this
Board is not a Court of Criminal Appeal. The
tendering of advice to His Majesty as to the
exercise of his prerogative of pardon is a
matter for the Executive Government and is
outside 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 suspended
These observations were made because the Judicial Committee
of the Privy Council, unlike the Supreme Court, was not a
Court of criminal appeal and therefore 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
by way of his prerogative and therefore the petitioner was
left free in that case to approach the Government 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 footnote to the Report
also contains the following:
" The petitioners were reprieved by the
Government of India pending the hearing of the
petition for leave to appeal". (see p. 134).
(1) (1915) 42, I. A. 133.
526
It is noteworthy that the reprieve granted in that case
covered only the period until the grant or refusal of the
petition for leave to appeal and did not go further so as to
cover the period of pendency of the appeal to the Privy
Council, unlike the order now impugned in this case. The
power which was vested in the Crown to grant special leave
to appeal to convicted 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 made by any court or tribunal in the
territory of India ". This wide and comprehensive power in
respect of any determination by any court or tribunal must
carry with it the power to pass orders incidental or
ancillary to the exercise of that power. Hence the wide
powers given to this Court under Art. 142 " to make such
order as is necessary for doing complete justice in any
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cause or matter pending before it ". As already indicated,
the power of this Court to pass an order of suspension of
sentence or to grant bail pending the disposal of the app-
lication for special leave to appeal has not been disputed
and could not have been disputed keeping in view the very
wide terms in which Art. 142 is worded. When an application
for special leave to appeal from a judgment and order of
conviction and sentence passed by a High Court is made, this
Court has been issuing 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 Mr. Seervai’s
argument is correct that the pendency of a special leave
application in 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 field at the same time. Mr. Seervai however contended
that there could never be a conflict between the exercise of
the power by the Governor under Art. 161 and by this Court
under Art. 142 because the power under Art. 161 is executive
power and the power under Art. 142 is judicial power
527
and the two do not act in the same field. That in our
opinion is over-simplification of the matter. It is true
that the power under Art. 161 is exercised by the executive
while the power under Art. 142 is that of the judiciary; but
merely because one power is executive and the other is
judicial, it does not follow that they can never be
exercised in the same field. The field in which the power
is exercised does not depend upon the authority exercising
the power but upon the subject-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 covered 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 68
528
Art. 142 is in operation and the matter is sub-judice in
this Court.
In this connection it is well to contrast the language of s.
209(3) and s. 295(2) of the Government of India Act, 1935.
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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, respites 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 Constitution " 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" Notwi
thstanding anything in this Constitution ").
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 harmonious construction has to be resorted
to in order that there may not be any conflict between them.
On that principle the power under Art. 142 which operates 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
529
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. Similar powers are contained in 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 prosecution 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 withdrawal 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 narrowed down to whether for the period
when this Court is in seizin of the case the Governor could
pass the impugned order, having the effect of suspending the
sentence during that period. There can be no doubt that it
is open to the Governor 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 disqualification attaching to a
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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 the sentence 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
530
functioning in the same field at the same time leading to
the possibility of conflict of jurisdiction. Such a con-
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 postulates what has to be
established, namely, that the Governor’s power was absolute
and not fettered in any way. go 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 words either of ss. 401 and 426 of the Code of Criminal
Procedure and Arts. 142 and 161 of the Constitution. If
that is the correct interpretation to be put on these pro
visions in order to harmonise them it would follow that what
is covered 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 Mr. Seervai .Would be right in
his contention that there is no conflict between the
prerogative power of the sovereign state to grant pardon and
the power of the courts to deal with a pending cage
judicially.
In this connection it may be relevant to deal with another
argument urged by Mr. Seervai in respect of the rule framed
by 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 provisions of any law made by Parliament, and
he also emphasised the fact that before the rules can come
into force they have to obtain the approval of the
President. In other words, the argument is that the rule-
making power of this Court is no more than subordinate
legislation, and so if there is a conflict between 0. 21, r.
5 and Art. 161 the rule must yield to 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 the wide
powers conferred on this Court by Art. 142 and similar wide
powers conferred on the Governor under Art. 161. It would,
531
therefore, be fallacious to suggest that compliance with the
rule would become unnecessary because a higher power under
Art. 161 has been exercised by the Governor, and so in the
face of the order passed by the Governor there is no longer
any need to comply with the rule. We have already referred
to the genesis of this rule and we have pointed out that
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 said rule nor Art. 145 but Art. 142;
that being so, what we have to decide 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. 142
and 161 respectively it would not be reasonable and proper
to harmonise the said two articles in such a way as to avoid
any conflict between the said two powers. In the decision
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of this question the legal character of the rules that may
be framed under Art. 145 cannot have any material 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
for passing the order is stated to be that the petitioner
intended to file an appeal before this Court. Let us,
however, take a case where 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
matter pending before it, would be open to the petitioner
to move the Governor for suspension of his sentence pending
the hearing of his application and appeal before this Court
and the Governor may, in a proper case, unconditionally
suspend the sentence. In other words, Mr.
532
Seervai frankly conceded that, even in a pending criminal
matter before this Court, an order passed by this Court may
in effect be set aside by the Governor by ordering an
unconditional suspension of the sentence 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 inevitably 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
an 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. 142. 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 conflict in exercise of the said two
powers can be reason. ably and properly avoided by adopting
a harmonious rule of construction. Avoidance of such a
possible conflict will incidentally prevent any invasion of
the rule of law which 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 similarly exercised. This argument is
fallacious; it ignores
533
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
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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; 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
character 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 granting
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 accordance 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
534
whether the condition imposed by the Governor in his order
impugned in this case was or was not legal. In the view we
have taken of the Governor’s power, so far as the relevant
period is concerned, namely, after the case became sub
judice in this Court, it is not necessary to pronounce upon
that aspect of the controversy.
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 bearing without
requiring the petitioner to surrender in view of the order
of the Governor fails and is dismissed.
KAPUR J.-I have had the advantage of reading the Order
proposed by my Lord the Chief Justice, but I regret I am
unable to agree with it and I proceed to give my reasons:
In this petition which is brought for exemption from
surrender to the sentence imposed on the petitioner a
question of great constitutional importance arises. The
petitioner submits that his sentence having been suspended
by the order of the Governor of the erstwhile State of
Bombay, the rule made by this Court as to surrender which is
a condition precedent to the hearing of a petition for leave
to appeal against the judgment of the High Court is
inapplicable to him and that it is a fit case in which he
should be exempted from the operation of the rule. The
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,
effect, extent and operation of the powers conferred by
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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 prerogative of
pardons in England and America and see how far the law laid
down by courts of those countries and-the practice there
followed is helpful in discovering the true intent and
purpose of these articles of the Constitution.
535
Under the Indian Constitution the power to grant 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, Chapter 1, dealing
with the Union Executive provides:-
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 punishment 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 against 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 exercise of its
jurisdiction may pass such decree or make such
order as is necessary 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
69
536
Court they create a conflict and therefore to give a
harmonious interpretation to all the four articles it is
necessary to cut down the amplitude of the powers conferred
by arts. 72 and 161 of the Constitution. In regard to
suspension of sentences it will be fruitful to trace the
legislative history of the relevant powers of the executive
and the judiciary which arise for construction.
In the Criminal Procedure Code of 1861 (Act XXV of 1861) the
power of the executive was confined to remission of
punishments and was contained in s. 54 which was as under:-
S.54. " When any person has been sentenced to
punishment for an offence, the Governor
General of India in Council, or the local
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Government, may, at any time, without
conditions, or upon any condition which such
person shall accept, remit the whole or any
part of the punishment to which he shall have
been sentenced ".
This section was in Chapter III dealing with " Preliminary
Rules " which included among other things passing of
sentences, the place of confinement of persons convicted and
the power of remission of sentences by the Governor General.
In Chapter XXX dealing with appeals by s. 421 the appellate
court was given the power to suspend sentences pending
appeals and release which was in the following terms:-
S.421. "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 ".
Then came the Criminal Procedure Code of 1872, Act X of
1872. In Chapter XXIII dealing with execution of sentences
the power of the executive to remit punishment was contained
in s. 322 which read as 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, may at any time, without
conditions, or upon any conditions which the person
sentenced accepts, remit the
537
whole or any part of the punishment to which he has been
sentenced "
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 suspended shall be
omitted in reckoning the completion of the punishment ".
The Criminal Procedure Code was reenacted in 1882 being Act
X of 1882. The power to suspend or remit sentences was
contained in a separate chapter, viz., Chapter XXIX headed "
Suspensions, Remissions and Commutations of Sentences ". The
relevant provision was s. 401 :-
S.401. " 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 he
has been sentenced.
Nothing herein contained shall be deemed to interfere with
the right of Her Majesty to grant pardons,’ reprieves,
respites, or remissions of punishment".
The power of the appellate courts as to suspension, of
sentences pending appeals was given in s. 426 which was in
Chapter XXI 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
538
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and, if he is in confinement, that he be released on bail or
on his own bond.
The power conferred by this section on an Appellate 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 to imprisonment,
penal servitude or transportation, the time during which he
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 part 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 General in Council or the
Local Government were suitably amended with the various
constitutional changes.
The corresponding section of appellate courts is contained
in a. 426 which is in Chapter XXXI dealing with appeals etc.
The relevant portions of this
section when quoted are as under:-
" 426. (1) Pending any appeal by a convicted
person, 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.
539
(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 subsection 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 sentenced and the power of the appellate
court was to suspend the sentence pending appeal in non-
bailable offenses 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 suspension
of sentences pending the appeal. In s. 401 of the Act of
1882 the legislature chose to use the words " suspension of
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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 judiciary-were two separate
powers, no doubt, operating for the same purpose but
exercised on different considerations and in different
circumstances. Of course this does not mean that the courts
did not exercise their 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 a.
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
540
it clear about the essential difference in the nature of the
exercise of the power conferred on the executive and on the
judiciary. The words " at any time " in s. 401 are very
wide and show the plenary nature of the power.
In the Government of India Acts previous to the Act of 1935
nothing was said about the power of the Crown or the power
of the Governor General as a delegate of the Crown, and it
cannot be said that the Indian legislature, whatever its
powers, could affect the King’s prerogative and therefore
any provision in the Criminal Procedure Code was wholly
impuissant as to the King’s prerogative of pardons. See
Henrietta. Muir Edwards v. Attorney General of Canada (1).
Provisions such as s. 401(5) are by way of abundant caution.
Section 295 of the Constitution Act of 1935 was a special
provision as to the power of the executive to suspend, remit
or commute a sentence of death. Subsection (1) of that
section provided that the power of the Governor General in
his discretion were the same as were vested in the Governor
General in Council immediately before the commencement of
Part III of that Act but save as that no authority in India
outside a province had any power to suspend, remit or
commute the sentence of any person convicted in a province.
Sub-section (2) was a saving clause and it provided :-
S.295. (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."
Thus the power of the King or of the Governor General as a
delegate to grant suspension remission or commutations
remained unaffected by the introduction of a federal system
with division of subjects between the Centre and the
Provinces. This section was in the part dealing with the
provisions as to certain legal matters. Thus under the
Government of India Act the Governor General in his
discretion had the power
(1)[1930] A.C. 124, 136.
541
to remit etc. sentences of death and Governors of provinces
had the power in regard to all sentences passed in a
province but the power of the King and of the Governor
General as a delegate remained unaffected by the first sub-
section of the section. Thus upto the coming into force of
the Constitution the exercise of the King’s prerogative
remained unaffected, was plenary, unfettered and exercisable
as hitherto.
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Historically in England the King as the autocratic head of
the Government always had the power to pardon.
This was a part " of that special preeminence 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 pardon is said by Lord Coke to be a " work of mercy;
whereby the King, either before attainder, sentence or
conviction or after forgiveth any crime, offence,
punishment, execution, right, title, debt or duty, temporal
or ecclesiastical ". 3 Inst. 233.
The common law is thus stated in Hale’s Pleas 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 evidence 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 may be granted or taken
off by the justices of goal 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 pregnancy, 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.
542
1.A reprieve (from reprendre, to take back) is the
withdrawing of a sentence for an interval of time; whereby
the execution is suspended. This may be, first ex arbitrio
judicis; either before or after judgment ; as where the
judge is not satisfied with the verdict, or the evidence is
suspicious, or the indictment is insufficient, or he is
doubtful whether the offence be within clergy or sometime if
it be a small felony, or any favorable circumstances appear
in the criminal’s character, in order to give room to apply
to the Crown for either an absolute or conditional pardon.
These arbitrary reprieves may be granted or taken off by the
justices of gaol delivery, although their session be
finished, and their commission expired; but this rather by
common usage, than of strict right.
Reprieve may also be ex necessitate legis; as, where a woman
is capitally convicted and pleads her pregnancy; though this
is no cause to stay the judgment, yet it is to respite the
execution till she be delivered. This is a mercy dictated
by the law of nature in favourem prolis ". Bk. 4, chapt. 31,
pp. 394, 395.
After imposition of the sentence execution of the sentence
may be suspended for a time which is known as respite and
may be granted by the king or by the Court. Orfield’s
Criminal Procedure from Arrest to Appeal, p. 529.
As the possessions of the kings of En land expanded and
several now colonies came under their sway the power of
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pardon which the kings exercised came to be exercised by
their representatives in the colonies and in America from
them it went to the State Governors and to the President for
federal offenses. The same process was followed in this
country as the various enactments and provisions set out
above 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 comprehensive power
of pardon are executive acts and can be exercised at any
time and in any circumstances untrammeled and without
control and in absolute
543
freedom except that prescribed by the Constitution; Craies
on Statute Law, page 483.
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
contained 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 Constitution 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 (2) said:-
" Their Lordships do not conceive it to be the
duty of this Board-it is certainly not their
desire to out 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 United States V. Wilson (3) Marshall’, C.
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 institutions 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 prescribing the manner in which it is to
be used by the person who would avail himself
of it".
Wayne, J., in Ex parte Wells (4) said:
" We still think so, and that the language in
the Constitution, conferring the power to
grant reprieves 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
(1) [1935] A.C. 500.
(3)8 L. Ed. 640, 643, 644.
70
(2) [1930] A.C. 124, 136.
(4) 15 L. Ed. 421, 424.
544
been exercised by the King, as the Chief
Executive. Prior to the Revolution, the
Colonies, being in effect under the laws of
England, were accustomed to the exercise of
it in the various forms, as they may be found
in the English books. They were of course to
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be applied as occasions occurred, and they
constituted a part of the jurisprudence of
Anglo-America. At that time of the adoption
of the Constitution, American statesmen were
conversant with the prerogatives exercised by
the Crown. Hence when the words to grant
pardons were used in the Constitution, they
convey to the mind the authority as exercised
by the English Crown, or its representatives
in the Colonies. At that time both Englishmen
and Americans attached the same meaning to the
words " pardon ". In the convention which
framed the Constitution, no effort was made to
define or change its meaning, although it was
limited in cases of impeachment.
We must then give the word the same meaning
as prevailed here and in England at the time
it found a place in the Constitution. This is
in conformity with the principles laid down by
this court in Cathcart v. Robinson, 5 Pet.
264, 280; and in Flavell’s case, 8 Watts &
Serg. 197; Attorney General’s brief"
In Ex parte Grossman (1) Taft, C. J., said:-
.lm15
".....................................................
............. The language of the Constitution cannot be
interpreted safely except by reference to the common law and
to British institutions as they were when the instrument was
framed and adopted. The statesmen and lawyers of the
Convention, who submitted it to the ratification of the
Convention of the thirteen states, were born and brought up
in the atmosphere of the common law, and thought and spoke
in its vocabulary. They were familiar with other forms of
government recent and ancient, and indicated in their
discussions earnest study and consideration of many of them,
but when they came to put their conclusions into the form of
fundamental law in a compact draft, they expressed them in
terms of the common law,
(1) 69 L. Ed 527, 530, 532, 535.
545
confident that they could be shortly and earnestly
understood ".
According to the American as also Indian Constitution the
power as given to the President is not to reprieve and
pardon but that he shall have power to grant reprieves and
pardons for offenses against the United States except in
cases of impeachment. Wayne, J., in Ex parte Well8 (1-) at
page 425 has explained the difference between the meaning of
these two expressions. "The first convoys 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 used to delay a judicial
sentence when the President shall think the merits of the
case or some cause connected with the offender may require
it, but it also extends to cases ex necessitate
legis ...................... 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 causes which may induce
the exercise of the power to reprieve.
In India also the makers of the Constitution were familiar
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with English institutions and the powers of English Kings
and the exercise of their power both by the Governor General
and the Governors of British India and of its provinces. It
will be legitimate to draw on English law 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
articles. 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 and they were drafting their
Constitution in English language and therefore to draw upon
the American parallel would be wholly legitimate.
(1) 15 L. Ed. 421, 425.
546
The history of the prerogative of pardons and reprieves
shows that the power of the executive in the matter of
pardons and reprieves and other forms of pardons
irrespective of the name used is of the widest amplitude and
is plenary in nature and can be exercised at any time after
the commission of the offence. The power of the executive
is an act of grace and clemency. It is a sovereign or
governmental power which ina monarchy is inherent in the
King and in a Republicin the State or the people and
which may, by the Constitution, be conferred on an officer
or a department. It is an executive power of the Governor
and it is the same as was exercised by the colonial Gover-
nors in America 67 C. J. S. 565.
Wayne, J., in the matter of Ex parte Wells (1) has described
it as an act of mercy and an act of clemency applicable to
pardons of every kind and form. Field, J., in Ex parte
Garland (2) termed it the benign prerogative of mercy. It
is the power for avoiding the execution of the judgment by
reprieve or pardon whereof the former is temporary and the
latter permanent. According to Willoughby’s Constitution of
America, Vol. III p. 1492:-
" The power to pardon includes the right to remit part of
the penalty as well as the whole and in either case it may
be made conditional. The power may be exercised at any time
after the offence is committed, that is, either before,
during, or after legal proceedings for punishment ". Ex
parte Garland 4 Wall. 333.
Reprieve whereby the execution is suspended is merely the
postponement of the execution for a definite time and it
does not and cannot defeat the ultimate execution of the
judgment but merely delays it. It is extended to a prisoner
in order to afford him an opportunity to procure some
amelioration of the sentence which has been imposed upon
him. But power to reprieve is an executive act and the sole
judge of the sufficiency of facts and 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
(1) 15 L. Ed. 421, 424.
(2) 18 L. Ed. 366, 370 & 371.
547
when conferred on the head of the executive is an executive
power and function. The pardon may be conditional and the
grant of a conditional pardon is not illegal.
It has been held that the power of pardon is not subject to
legislative 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 act is
final and irrevocable. The Courts have no concern with the
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reasons which actuated the executive. This power is beyond
the control of the judiciary; 39 Am. Jur. 545, ss. 43;
Horwitz v. Connor (3).
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 constitutional 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 as that exercised by the representative
of the English Crown in America in colonial times. 67 C. J.
S. 565. It has 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 monarchies to
vest in some other party than courts the power to ameliorate
or avoid particular criminal judgments and the exercise of
this power is the exercise by the highest executive of his
full discretion and with the confidence that he will not
abuse it.
In Ex parte Garland (1), it was held that the President’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 at any time after its
commission.............................. The power of the
President is not subject to legislative control. Congress
can neither limit the effect not exclude from its effect any
class of offenders. The benign prerogative
(1) 18 L. Ed. 366, 370 & 371.
(2) 20 L. Ed. 519.
(3) 6 C. L. R. 1497.
548
of mercy resposed in him cannot be fettered by any
legislative restriction.......... In Ex parts Grossman (1)
it was held that there was no difference between the power
of the President and that of the king in regard to pardon
and at page 535 it was observed by Taft, C. J.
"Executive clemency exists to afford relief
from undue harshness or evident mistake in the
operation or enforcement of the criminal law.
The administration of justice by the courts is
not necessarily always wise or certainly
considerate of circumstances which may
properly mitigate guilt. To afford a remedy,
it has always been thought essential in
popular governments, as well as in monarchies
to vest in some other authority than the court
power to ameliorate or avoid particular
criminal judgment. It is a check intrusted to
the Executive for special cases ".
That case also laid down that the exercise of-the executive
power to the extent of destroying the deterrent effect of
judicial 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 vested in the highest
officer in the nation.
In Biddle v. Vuco Perovich (2), Holmes., J., in dealing with
pardons said:-
,, Pardon is not a private act of grace from
an individual happening to possess power. It
is a part of the constitutional scheme. When
granted it is the determination of the
ultimate authority that the public welfare
will be better served by inflicting less than
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what the judgment fixed"
and in Sorrell8 V. United State8 (3) the observation of
Holmes, J., were followed and 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 and reprieves apply
in America; that the power which
(1) 65 L. Ed. 527, 530, 532, 535.
(2) 71 L. Ed. 1161, 1163.
(3) 77 L. Ed. 413 at P. 421.
549
was exercised by the king and by delegation by the colonial
Governors is now exercised by the highest 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. Therefore 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 prerogative of
the people vested in the President in the exercise of his
power of benign mercy. It was so held in Ex parte Garland
(1) and United states v. Klein (2). In the former case the
President bad given a pardon to rebels who had 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
legislature 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 attainder, 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 concerned it can be
exercised by entering nolle prosequi which is also the law
in India. Under a. 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 before a verdict is given the Advocate-General
may inform the
18 L. Ed. 366, 370 & 371 (2) 20 L. Ed. 519.
550
court on behalf of the Government that he will not further
prosecute the defendant upon the charge and he shall be
discharged but this discharge does not amount to acquittal
unless the Judge otherwise directs. We are informed that in
the city of Bombay the power of the Advocate-General extends
to oases tried by the court of Session. There is 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 nolle prosequi. Similarly the
power is given in regard to other courts of original
jurisdiction to the Public Prosecutor under s. 494, Criminal
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Procedure Code, but that power is not as absolute as it is
in the 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 after the commission of the offence
either before legal proceedings are taken or during their
pendency or after an appeal is filed and while the case is
pending in the appellate court. It was so held in Ex parte
Grossman (1) ; Ex parte Garland (2) 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 reprieve and successive
reprieves where a period is prescribed are not illegal: 67
C. J. S. p. 582.
A case where the power of reprieve was exercised and
operated during the pendency of the appellate proceedings
is, Rogers v. Peck (3). 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 habeas corpus. She was convicted of murder at
the December, term 1903 and was confined in solitary
confinement until February 3. 1905. on which day she was to
suffer the penalty of death, On February 1, 1905, the
Governor reprieved the execution of sentence until June 2,
1905. On April 29, 1905, she presented a petition for a new
trial to the Supreme Court of the State. The petition was
admitted on May 5,1905, and fixed for hearing on
(1) 69 L. Ed. 527, 530, 532. 535.
(2) 18 L. Ed. 366,370 &,371.
(3) 50 L. Ed. 256.
551
May 10, 1905, but was dismissed on May 30, 1905, and a new
trial was refused. On June 1, 1905, the execution 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 Governor further reprieved 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 November 27,
1905. One of the grounds of appeal in the Supreme Court was
that the Governor, by giving the reprieve, issued his order
requiring the execution while proceedings were 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 reprieve or suspension of
sentence was absolute and could be exercised at any time yet
there was a statutory as well as a constitutional limitation
on the exercise of this 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
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reference was made to a. 426 of the Criminal Procedure Code
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.
71
552
142 and 145 of the Constitution were referred to. Article
142 confers on the Supreme Court the power to do complete
justice in any cause or matter pending before it and art.
145 gives to; the Supreme Court power to make rules with the
approval of the President 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:-
O.21, R. 5 " When the petitioner has been sentenced 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 ".
O.21, R. 28 " Pending the disposal of any appeal under
these Rules the Court may order that the execution 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 court 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
states:-
" 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 subject to any law made by Parliament 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 provisions of the Constitution
and therefore merely because this Court has also the power
under the rules to grant suspension of a sentence and it has
made rules that it will not entertain any petition for leave
to appeal unless the petitioner surrenders himself to the
sentence cannot override the provisions of art. 161 ;
because if there is irresolvable conflict between
553
the article and the rules then the rules must give way,
being subordinate legislation.
It was argued that the power of the Court under articles 142
& 145 and of the Governor under art. 161 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 con. tended, 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
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exercises the power in derogation of the judicial power.
The executive power to pardon including reprieve, suspend or
respite a sentence is the exercise of a sovereign or govern-
mental power which is inherent 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 the 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. (1) courts possessed and asserted the
right to exert judicial discretion in the enforcement of the
law to temporarily suspend either the imposition of sentence
or its execution when imposed to the end that pardon might
be procured or
(1) 61 L. Ed. 129 at P. 141.
554
that the violation of law in other respects might be
prevented. It was also held that a Federal District Court
exceeds its power by ordering that execution of a sentence
imposed by it upon a. plea of guilty be suspended
indefinitely during good behavior upon considerations wholly
extraneous to the legality of the conviction : Ex parte U.
S. (1).
Marshall, C. J., in U. S. v. George Wilson (2) stated as
follows:-
"..................... It is a constituent
part of the judicial system that the judge
sees only with judicial eyes, and knows
nothing respecting any particular case, of
which he is not informed judicially ".
In Ex parte Grossman (3), it was said that administration of
justice by the courts is not necessarily or always wise or
considerate of circumstances which may mitigate a guilt and
in order to remedy this it was thought necessary to vest
this in some other authority than the court to ameliorate or
avoid particular criminal judgments. The exercise of this
power has the effect of destroying the deterrent effect of
judicial punishment. The extent of the two powers, judicial
and executive and the difference between the two has been
pointed out in United State8 v. Benz (4) in which it was
held that no usurpation of the pardoning power of the
executive is involved in the action of a court in reducing
punishment after the prisoner had served a part of the
imprisonment originally im. posed. At page 358 the
distinction was stated as follows:-
" The judicial power and the executive power
over sentenced are readily distinguishable.
To render judgment is a judicial function. To
carry the judgment into effect is an executive
function. To out 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 by amendment alters the
terms of the judgment itself and is a judicial
act as much as the imposition of the sentence
in the first instance"
(1) 61 L. Ed. 129 at p. 141.
(2) 8 L. Ed. 640, 643. 644.
(3) 69 L. Ed. 527, 530. 532.535.
(4) 75 L. Ed. 354.
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555
According to Willis " Courts may exercise the power of
suspending sentence although this, like the pardoning power,
partakes of the nature of an executive function; which shows
that giving of suspensions 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 not to
defeat it as construed.
The judicial power therefore is exercisable on judicial
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 consideration anything which is not strictly
judicial. A 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 commutation 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 different principles taking
wholly irreconcilable factors into consideration.
Taking the case of pardon it is important to note that
pardon is granted for reasons other than innocence. A
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 exercisable by
the executive to ameliorate the rigors 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
556
death to one of imprisonment for life or transportation for
life as it used to be. In England and in America it is
exercised on the condition of acceptance by the convict but
no such limitation is imposed on the power of the executive
under the Indian law. But whereas the court 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
subject to review by the courts, the executive being the
sole judge of sufficiency of facts and of the propriety of
the action and no other branch has any control over
executive action.
As to suspension of sentence again in s. 426 of the Criminal
Procedure Code it is expressly stated that an appellate
court can suspend the sentence for reasons to be stated ; no
such limitation is imposed on the executive under s. 401 of
the Code. The language of the two sections themselves shows
the field in which the two powers operate although the
effect may be the same. It is relevant to consider in this
connection the grounds on which a court acts in regard to
offenses punishable with death or imprisonment for life
(s.497 of Cr. P. C.) but no such restrictions impede
executive action. Similarly when the Supreme Court acts
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under art. 142 it acts judicially and takes only those facts
into consideration which are sufficient in the judicial
Sense to justify the exercise of its power ; so would be the
case when the power is exercised under the rules framed by
the court. Thus it appears that 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
are exercised on different considerations and even may have
different effect.
Executive power exercised in regard to sentences passed by
courts is in its very nature the exercise of constitutional
authority 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 suspension or respite. It is an
interference with some action
557
of the court which makes the power of the executive to that
extent overriding. It is for this reason that it has been
said in American judgments, e. g., Ex parte 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 cooperation in the possible
reluctance of either of the other branches to the force of
public opinion. The action of the executive 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 legislative
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 mentioned 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 the language
would remain unaffected before the petition for leave to
appeal is filed and after the decision
(1) 69 L. Ed- 527, 530, 532 535.
558
of the appeal but the power would remain suspended during
the pendency of the appeal proceedings even though the power
of pardon and of commutation remains intact and the
suggested restriction is not borne out by the language of
the article. And this construction is opposed to decisions
of courts of America where the power is similar as in India.
Even on the analogy of the Privy Council case Balmukand v.
King Emperor (1) where reprieve was granted pending the
hearing of the special leave petition, i. e., upto the date
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the petition was taken up, heard and decided and therefore
uptil that date the reprieve was necessary and proper. In
Rogers v. Peck(2) reprieve was granted for a period of time
extending beyond the hearing of the appeal proceedings.
If the argument as to want of the power of suspension during
the period of pendency of an appeal is sustainable then the
power to commute must equally be so affected because what is
commutation when exercised 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 a. 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 8. 209(3) of that Act which gave
to the Federal Court the power of stay in any case; the
argument being that the prerogative power of the King and
his delegate 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 soundness of this
argument.
Section 209(3) is in Part IX The Judicature and Chapter 1
the Federal Court. It gave power to the 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
(1) 42 I.A. 133.
(2) 50 L. Ed. 256.
559
the Court, pending the hearing of the appeal, and execution
shall be stayed accordingly
Section 295 is in Part XII Misellaneous 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 construed 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) only emphasise the
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constitutional position of the King’s prerogative and of his
delegate and was more in the nature of
72
560
ex abundanti cautela’ because under constitutional practice
" Roy n’est lie par ascun statute, si il ne soit
expressement nosme " is a principle which has been accepted
in this court qua the Union or the States. " Where the King
has any prerogative, estate, right, title or interest he
shall not be barred of them by the general 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(1), where it was held that Crown is not bound unless
expressly named or is bound by " necessary implication
If the argument of limitation of the King’s prerogative
because of these saving words is sound then it means in the
Constitution Act the British Parliament did contemplate and
provide that the power of the King or of the Governor
General as his delegate as to suspensions, remissions or
commutation would be overriding and exercisable in spite of
the pendency of an appeal in the Federal Court.
There are seven reasons for denying the argument of conflict
between arts. 142 and 161 :-
(1)As has been discussed above, the two articles operate
in two distinct fields where different considerations for
taking action apply. That is how the two articles are
reconcilable and should be reconciled. This interpretation
accords with the rule of statutory co-existence stated in
text books on Interpretation of Statutes, which is as
follows:-
" It is sometimes found that the conflict of
two Statutes is apparent only, as their
objects are different and the language of each
is restricted to its own object or subject.
When their language is so confined, they run
in parallel lines without meeting ". (Maxwell
on Interpretation of Statutes (1953 Ed.), p.
170).
(2)The proper rule of construction of
Statutes was laid down in Warburton v.
Loveland(2):
No rule of construction can require that when
the words of a Statute convey a clear
meaning.......... it shall be necessary to
introduce another part of the
(1) 73 I.A. 271.
(2) 5 E.R. 499, 410.
561
Statute, which speaks with less perspicuity,
and of which the words may be capable of such
construction as by possibility to diminish 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 (1):
"Applying those expressions to these sections
I should say they amount to this; Seeing that
sec. 89 hair an absolutely clear meaning, the
rules of construction 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
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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 perspicuity
(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 (2) 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 Law (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 preamble. Ibid p. 195.
(1) 1 C.L.R. 329, 357.
(2) [1940] 2 K.B. 204, 217 (C.A.).
562
In Inglis v. Bobertson(1) which turned on the meaning of the
Factors Act, Lord Herschell said:-
"These headings are not in my opinion mere
marginal notes but the sections in the group
to which they belong must be read in
connection with them and interpreted in the
light of them".
Viscount Simon, L. C., said in Nokes v. Doncaster
Amalgamated Collieries Ltd. (2):-
"Moreover, sec. 154 contemplates-or, at any
rate, provides for-the dissolution of the
transferor company when the transfer of its
undertaking has been made, and there appears
to be no means of calling back to life the
company so dissolved for see. 294 occurs in
Part V of the Companies Act, 1929, dealing
with winding up, whereas sec. 154 is found in
Part IV"
These cases place accent on the principle that the articles
142(1) and 161 deal with different subjects showing
operation in separate fields and were not intended to
overlap so as to be restrictive of each other.
(4)The language 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 (3) and
therefore if the power to pardon is absolute and exercisable
at any 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 an unjustifiable limitation on the
power of the executive. It could not have been the
intention of the framers that the amplitude of executive
power should be restricted as to become suspended for the
period of pendency of an appeal in the Supreme Court.
(5)If this interpretation is-adopted it would lead to this
rather incongruous result that if the appeal is pending in a
Court of Session or the High Court the power of the
executive will be abundant, overriding
(1) [1898] A.C. 616, 630.
(2) [1940] A.C. 1114
(3) 15 L. Ed, 421, 424.
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563
and operative during the pendency of appeals but will be
restrictive when appeal is brought in the Supreme 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. Municipal Corporation of
the City of Bombay (1); 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
intended to be effected by a side wind.
(e)The law will not allow alteration of a Statute by
construction when the words may be capable of proper
operation without it; Kutner v. Philips (3).
(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 (4).
(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 regard to pardons is
a specific power specially conferred as was vested in- the
colonial and British Governors in Indian provinces during
British days. The power given to the court under Art.
142(1) is a general power exercisable for doing complete
justice in any cause or matter. If they, i.e., arts. 161
and 142(1) deal with
(1) 73 I.A. 271
(2) Criminal Appeal No. 158 Of 1956.
(3) [1891] 2 Q.B. 267, 272.
(4) [1940] 2 K. B. 204. 217 (C.A.).
(5) [1867-8] 3 C.P. 26.
564
the same subject matter as is contended then art. 161 must
prevail over art. 142(1) which is in accord with the
constitutional position as above discussed.
In the circumstances of this case 1 would grant the
petitioner exemption prayed for and proceed to hear the
special leave petition on merits.
BY COURT: In view of the majority Judgment, the petition is
dismissed.
Petition dismissed.