K.M. Nanavati Vs. The State of Bombay [1960] INSC 140 (5 September 1960)
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.
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 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.
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 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 ?] 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 65 504 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 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 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 together 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 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 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 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 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 Legislature. 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 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 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 situation 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 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 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 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 executive 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 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 warrant. 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 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 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 prerogative 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 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 application 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 heari