1. This matter has been placed before the Constitution Bench in ratherextraordinary circumstances, as will presently appear. It involves the questionas to what is the content of the power conferred on the Governor of a Stateunder Art. 161 of the Constitution; and whether the order of the Governor ofBombay dated March 11, 1960, impinges on the judicial powers of this Court,with particular reference to its powers under Art. 142 of the Constitution.
2. For the determination of the constitutional issue raised in this case, itis not necessary to go into the merits of the case against the petitioner. Itis only necessary to state the following facts in order to appreciate thefactual background of the order of the Governor of Bombay aforesaid impugned inthis case. The petitioner was Second in command of I.N.S. Mysore, which came toBombay in the beginning of March 1959. On April 27, 1959, the petitioner wasarrested in connection with a charge of murder under s. 302 of the Indian PenalCode. He was produced before the Additional Chief Presidency Magistrate,Greater Bombay, in connection with that charge on April 28, 1959. TheMagistrate 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 innaval custody as defined in s. 3(12) of the Navy Act, 1957, in which custody hewould continue to be detained under the orders of the Naval Provost Marshall inexercise of his authority under s. 89(2) and (3) of the Navy Act. Thereupon theMagistrate made the order directing that the accused should be detained in theNaval Jail and Detention Quarters in Bombay. The Magistrate has observed in hisorder 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 wasby a jury. The jury returned a verdict of 'not guilty' by a majority of eightto 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 ofthe Bombay High Court. The High Court accepted the reference and convicted thepetitioner under s. 302 of the India Penal Code and sentenced him toimprisonment for life, by its judgment and order dated March 11, 1960. On thesame day, the Governor of Bombay passed the following order :-
'In exercise of the powers conferred on me byArticle 161 of the Constitution of India, I, Shri Prakasa, Governor of Bombay,am pleased hereby to suspend the sentence passed by the High Court of Bombay onCommander K. M. Nanavati in Sessions Case No. 22 of IVth Sessions of 1959 untilthe appeal intended to be filed by him in the Supreme Court against hisconviction and sentence is disposed of and subject meanwhile to the conditionsthat he shall be detained in the Naval Jail Custody in I.N.S. Kunjali'.
3. In pursuance of the judgment of the High Court, a writ issued to theSessions Judge, Greater Bombay, communicating the order of the High Courtconvicting and sentencing the petitioner as aforesaid. The Sessions Judgeissued a warrant for the arrest of the accused and sent it to the policeofficer in charge of the City Sessions Court for Greater Bombay for execution.The warrant was returned unserved with the report that the warrant could not beserved in view of the order set out above passed by the Governor of Bombaysuspending the sentence upon the petitioner. The Sessions Judge then returnedthe writ together with the unexecuted warrant to the High Court.
4. In the meantime an application for leave to appeal to the Supreme Courtwas made soon after the judgment was pronounced by the High Court and thematter was fixed for hearing on March 14, 1960. On that day the matter of theunexecuted warrant was placed before the Division Bench which directed that, inview of the unusual and unprecedented situation arising out of the order of theGovernor the matter should be referred to a larger Bench. Notice wasaccordingly issued to the State Of Bombay and to the accused person. A SpecialBench of five Judges of that Court heard the matter. The Special Bench permittedtwo Advocates, Mr. Kotwal and Mr. Pranjpe, to appear on behalf of the WesternIndia Advocates' Association. Similarly, Mr. Peerbhoy was also permitted toappear along with Mr. Latifi on behalf of the Bombay Bar Association. They wereheard as amicus curiae in view of the fact that the Advocate General for theState 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 theGovernor. In view of the great importance of the issues involved, the Courtallowed those Advocates to represent the other view point. The Advocate Generalof Bombay as also counsel for the accused made objections to the Court hearingthe Advocates aforesaid on the ground that they had no locus standi. TheAdvocate General of Bombay also raised a preliminary objection to the hearingof the matter by the Special Bench on the ground that it had no jurisdiction toexamine the validity of the action taken by the Governor, because there was nojudicial proceeding then pending. The criminal reference a aforesaid, to whichthe State and the accused were parties, had already been disposed of and noneof those parties had raised any grievance or objection to the order of theGovernor impugned before the Court. The Court Overruled that objection in viewof the fact that the writ issued by the Court had been returned unexecuted ongrounds which could be examined by the Court as to the validity of the reasonsfor the return of the warrant unexecuted. The High Court then examined thevalidity of the action taken by the Governor and came to the conclusion that ithad the power to examine the extent of the Governor's power under Art. 161 ofthe Constitution and whether it had been validly exercised in the instant case.After an elaborate examination of the questions raised before it, the SpecialBench came to the conclusion that the order passed by the Governor was notinvalid. It also held that the condition of the suspension of the order thatthe petitioner be detained in naval custody was also not unconstitutional, eventhough the accused could not have been detained in Naval Jail under theprovisions of the Navy Act, after he had been convicted by the High Court. TheCourt also held negativing the contention raised on behalf of the Advocatesappearing as amicus curiae, that the order of the Governor did not affect thepower of the Supreme Court with particular reference to r. 5. of O. XXI of theRules of the Supreme Court, which will be set out in full hereinafter. Thereason for this conclusion, in the words of the High Court, is :-
'As the sentence passed upon the accused has beensuspended, it is not necessary for the accused to surrender to his sentence.Order XXI, r. 5, of the Supreme Court Rules will not, therefore, apply in thiscase.'
5. The High Court also overruled the plea of mala fides. In the result, theHigh Court held that as the order made by the Governor had not been shown to beunconstitutional or contrary to law, the warrant should not be reissued untilthe appeal to be filed in the Supreme Court had been disposed of, unless theorder made by the Governor stands cancelled or withdrawn before that event.
6. The petitioner filed his petition for special leave in this Court onApril 20, 1960, and also made an application on April 21, 1960, under O. XLV,Rules 2 and 5 of the Supreme Court Rules for exemption from compliance with O.XXI, r. 5, of those Rules. It was stated in the petition that, soon after hisarrest, the petitioner throughout the trial before the Sessions Court and thehearing of the reference in the High Court, had been in naval custody andcontinued to be in that custody, that he had been throughout of good behaviourand was ready and willing to obey any order of this Court, but that thepetitioner 'not being a free man it was not possible for him to complywith the requirements of r. 5 of O. XXI of the Supreme Court Rules......'. He, therefore, prayed that he may be exempted from compliancewith the aforesaid rule and that his petition for special leave to appeal beposted for hearing without his surrendering to his sentence. On April 25, 1960,the special leave petition along with the application for exemption aforesaidwas placed before a Division Bench which Passed the following order :-
'This is a petition of special leave against theorder passed by the Bombay High Court on reference, convicting the petitionerunder s. 302 of the Indian Penal Code and sentencing him to imprisonment forlife. Along with his petition for special leave an application has been filedby the petitioner praying that he may be exempted from surrendering under O.XXI, r. 5, of the Rules of this Court. His contention in this application isthat he is ready and willing to obey any order that this Court may pass butthat as a result of the order passed by the Governor of Bombay under Art. 161of the Constitution is not a free man to do so and that is put forward by himas an important ground in support of his plea that he may be exempted fromcomplying with the relevant rule of this Court. This plea immediately raisesand important constitutional question about the scope and extent of the powersconferred on the Governor under Art. 161 of the Constitution and that is aconstitutional matter which has to be heard by a Constitution Bench of thisCourt. We would accordingly direct that notice of this application should beserved on the Attorney-General and the State of Bombay and the papers in thisapplication should be placed before the learned Chief Justice to enable him todirect in due course, in consultation with the parties concerned, when thisapplication should be placed for hearing before the Constitution Bench'.
7. After the aforesaid order of this Court, it appears that on July 6, thepetitioner swore an affidavit in Bombay to the effect that his applicationaforesaid for exemption from compliance with the requirements of r. 5 of O. XXIof Rules had been made under a misapprehension of the legal position and thatthe true position had been indicated in the judgment of the Special Bench ofthe Bombay High Court to the effect that r. 5 of O. XXI of the Rules would notapply 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 thenecessity for surrender is clearly an afterthought. Certainly, it came afterthe Division Bench had directed the constitutional matter to be heard as apreliminary question.
8. That is how the matter has come before us. Before we heard the learnedAdvocate General of Bombay, and the learned Additional Solicitor-General onbehalf of the Union of India, we enquired of Shri J. B. Dadachanji, Advocatefor the petitioner, whether the petitioner was prepared to get himself releasedfrom the Governor's order in order to present himself in this Court so that thehearing of his special leave petition might proceed in the ordinary course, buthe was not in a position to make a categorical answer and preferred to have theconstitutional question determine on its merits. We had the assistance of Mr.C. B. Aggarwala, who very properly volunteered his services as amicus curiae torepresent the other view point. In this Court also the situation was the sameas in the High Court, namely, that unless there was an amicus curiae torepresent the opposite view point, the parties represented before us were notcontesting the validity of the Governor's order, Both here and in the HighCourt, it was at the instance of the Court itself that the matter has beenplaced for hearing on the preliminary question before dealing with the meritsof the petitioner's case.
9. The learned Advocate General of Bombay has argued with his usualvehemence and clarity of expression that the power of pardon, including thelesser power of remission and suspension of a sentence etc. is of a plenarycharacter and is unfettered; that it is to be exercised not as a matter ofcourse, but in special circumstances requiring the intervention of the Head ofthe Executive; that the power could be exercised at any time after thecommission of an offence; that this power being in the nature of exercise ofsovereign 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 exercisedunconditionally or subject to certain conditions to be imposed by the authorityexercising the power; that such conditions should not be illegal or impossibleof performance of against public policy. It was further argued that the powerof pardon is vested in the Head of the State as an index of sovereign authorityirrespective of the form of Government. Thus the President of the United Statesof America and Governors of States, besides, in some cases committees, havebeen vested with those powers, which cannot be derogated from by a Legislature.So far as India is concerned, before the Constitution came into effect suchpowers have been regulated by statute, of course, subject to the power of theCrown itself. After the Constitution, the power is contained in Art. 72 inrespect 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 ofthe Supreme Court contained in Arts 136, 142, 145 and other Articles of theConstitution. Hence, what was once a prerogative of the Crown has nowcrystallized 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 theConstitution. He particularly emphasised that the two powers, namely, the powerof the Executive to grant pardon, in its comprehensive sense, and of theJudiciary are completely apart and separate and there cannot be any question ofa conflict between them, because they are essentially different, the one fromthe other. The power of pardon is essentially an executive action. It isexercised in aid of justice and not in defiance of it. With reference to theparticular question, now before us, namely, how far the exercise of theexecutive power of pardon contained in those two Articles of the Constitutioncan be said to impinge on the judicial functions of this Court, it was arguedthat r. 5 of O. XXI of the Rules of this Court postulates the existence ofsentence of imprisonment and, as in this case, as a result of the Governorsorder, there is no such sentence running there could not be any question of theone trespassing into the field of the other. Rule 5 aforesaid of this Court representsthe well-settled practice of this Court, as of other Courts, that a personconvicted and sentenced to a term of imprisonment should not be permitted to bein contempt of the order of this Court, that is to say, should not be permittedto move the appellate court without surrendering to the sentence. But thepetitioner is not in such contempt, because r. 5 did not apply to him. Theorder of sentence against him having been suspended, he is not disobeying anyrule or process of this Court or of the High Court. The power of the SupremeCourt to make rules is subject to two limitations, namely, (1) to any law madeby Parliament and (2) the approval of the President. On the other hand, Arts.72 and 161 enshrine the plenary powers of the sovereign State to grant pardonetc., and are not subject to any limitations. There could, therefore, be noconflict between these two, and if there were any conflict at all, the limitedpowers of the Court must yield to the unlimited powers of the Executive. Asregards the condition imposed by the Governor, subject to which the sentencepassed against the petitioner had been suspended, the condition was notillegal, because it did not offend against any peremptory or mandatoryprovisions of law. It is not the same thing to say that the condition was notauthorised by law as to say that the condition was illegal, in the sense thatit did what was forbidden by law. We were referred to the various provisions ofthe Indian Navy Act (Act LXII of 1957) to show that there were no provisionswhich could be said to have been contravened by the condition attached to theorder of suspension by the Governor. Furthermore, the naval custody in whichthe petitioner continues had been submitted to by there petitioner and what hasbeen consented to cannot be illegal, though it may not have been authorised bylaw. Lastly, it was contended that the observation of the High Court in thelast paragraph of its judgment was entirely uncalled for, because once it isheld, as was held by the High Court, that the Governor's order was notunconstitutional, it was not open to the High Court to make observations whichwould suggest that the Governor had exercised his power improperly. If theexercise of the power by the Governor is not subject to any conditions, and isnot justiciable, it was not within the power of the High Court even to suggestthat the Governor should not have passed the order in question. The learnedAdditional Solicitor General adopted the able arguments of the Advocate Generaland added that, in terms, there was no conflict between Arts. 142 and 161 ofthe Constitution.
10. Mr. C. B. Aggarwala, to whom the Court is obliged for his ableassistance to the Court, argued that the exercise of the rule making power bythe Supreme Court is not a mere statutory part, but is a constitutionalprivilege; that the Supreme Court alone could lay down rules and conditions inaccordance with which applications for special leave to appeal to the Courtcould be entertained; that the material rule governing the present case wasmade under the constitutional power of the Supreme Court under Art. 145 andthat the Advocate-General was in error in describing it as subordinatelegislation; that the fact that the rules made by this Court under Art. 145 ofthe Constitution require the approval of the President cannot covert them intorules 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 O.XXI of the Rules of this Court is to see that the petitioner to this Court orthe appellant should remain under the directions of the Court; that theGovernor by passing the order in question has deprived the Supreme Court of itspower in respect of the custody of the convicted person; that the power underArt. 161 has to be exercised within the limits laid down by Art. 154 of theConstitution. It was also argued that the petitioner could have got his relieffrom this Court itself when he put in his application for special leave andthat in such a situation the Executive should not have intervened. In otherwords, the contention was that, like the Courts of Equity, which intervened inaid of justice when law was of no avail to the litigant, the Executive alsoshould exercise their power only where the courts have not been clothed withample power to grant adequate relief in the particular circumstances governingthe case. It was further argued that on a true construction of the provisionsof the law and the Constitution, it would appear that the Governor's powerextends only up to a stage and no more, that is to say, the Governor couldsuspend the operation of the sentence only until the Supreme Court was moved byway of special leave and then it was for the Court to grant or to refuse bailto the petitioner. Once the Court has passed an order in that respect, theGovernor 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 interms made by the Governor, could at all be passed during the pendency of theapplication for leave to appeal to this Court, such an order could be passedonly by the President, and not by the Governor. In any view of the matter, itwas further argued, that Governor could pass an order contemplated by Art. 161,but could not add a condition, as he did in the present case, which was anillegal condition. It was further argued that the generality of the expressionsused in s. 401 of the Criminal Procedure Code has to be cut done by thespecific provisions of s. 426 of that Code. In other words, when there is anappeal pending or is intended to be preferred, during that limited period, thetrial court itself or the appellate court, has to exercise its judicialfunction in the matter of granting bail etc.; and the appropriate Government isto stay its hands during that time.
11. Before dealing with the main question as to what is the scope of thepower conferred upon the Governor by Art. 161 of the Constitution, it will beconvenient to review in a general way the law of pardon in the background ofwhich the controversy has to be determined. Pardon is one of the manyprerogatives which have been recognised since time immemorial as being vestedin the sovereign, wherever the sovereignty might lie. Whether the sovereignhappened to be an absolute monarch or a popular republic or a constitutionalking 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 andconclude peace, the power to legislate and the power to adjudicate upon allkinds of disputes. The King, using the term in a most comprehensive sense, hasbeen the symbol of the sovereignty of the State from whom emanate all power, authorityand jurisdictions. As kingship was supposed to be of divine origin, an absoluteking 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 isa historical fact that it was this claim of divine right of kings that broughtthe Stuart Kings of England in conflict with Parliament as the spokesman of thepeople. We knew that as a result of this struggle between the King, asembodiment of absolute power in all respects, and Parliament, as the championof popular liberty, ultimately emerged the constitutional head of theGovernment 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 inmembers of the Government, collectively called the Cabinet, and judicial poweris vested in a Judiciary appointed by the Government in the name of HisMajesty. Thus, in theory, His Majesty or Her Majesty continues to appoint theJudges of the highest courts, the members of the Government and the publicservants, who hold office during the pleasure of the sovereign. As a result ofhistorical processes emerged a clear cut division of governmental functionsinto executive, legislative and judicial. Thus was established the 'Ruleof Law' which has been the pride of Great Britain and which washighlighted by Prof. Dicey. The Rule of Law, in contradistinction to the ruleof man, included within its wide connotation the absence of arbitrary power,submission to the ordinary law of the land, and the equal protection of thelaws. As a result of the historical process aforesaid, the absolute andarbitrary power of the monarch came to be canalised into three distinct wingsof the Government. There has been a progressive increase in the power,authority and jurisdiction of the three wings of the Government and acorresponding diminution of absolute and arbitrary power of the King. It may,therefore, be said that the prerogatives of the Crown in England, which werewide and varied, have been progressively curtailed with a correspondingincrease in the power, authority and jurisdiction of the three wings ofGovernment, so much so that most of the prerogatives of the Crown, though intheory they have continued to be vested in it, are now exercised in his name bythe Executive, the Legislature and the Judiciary. This dispersal of theSovereign's absolute power amongst the three wings of Government has now becomethe norm of division of power; and there prerogative is no greater than whatthe law allows. In the celebrated decision of the House of Lords in the case ofAttorney General v. De Keyser's Royal Hotel, Limited  A.C. 508 whichinvolved the right of the Crown by virtue of its prerogative, to take possessionof private property for administrative purposes in connection with the defenceof the realm, it was held by the House of Lords that the Crown was not entitledby virtue of its prerogative or under any statute, to take possession ofproperty belonging to a citizen for the purposes aforesaid, without payingcompensation for use and occupation.
12. It was argued by Sir John Simon, K. C., for the respondents that :-
'The prerogative has been defined by a learnedauthor as 'the residue of discretionary or arbitrary authority which at anygiven time is legally left in the hands of the Crown'. It is the ultimateresource of the executive, and when there exists a statutory provision coveringprecisely the same ground there is no longer any room for the exercise of theRoyal Prerogative. It has been taken away by necessary implication because thetwo rights cannot live together'. (See p. 518 of the Report).
This argument on behalf of the respondents appears to have been accepted byLord Dunedin, who delivered the leading opinion of the House in these terms :-
'The prerogative is defined by a learnedconstitutional writer as 'the residue of discretionary or arbitrary authoritywhich at any given time is legally left in the hands of the Crown'. Inasmuch asthe Crown is a party to every Act of Parliament it is logical enough toconsider that when the Act deals with something which before the Act could beeffected by the prerogative, and specially empowers the Crown to do the samething, 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 of England, Volume 7,Third Edition, at p. 221, in these words :-
'The prerogative is thuscreated and limited by the common law, and the Sovereign can claim noprerogatives except such as the law allows, nor such as are contrary to MagnaCarta, or any other statute, or to the liberties of the subject.
The courts have jurisdiction,therefore, to inquire into the existence or extent or any alleged prerogative...............'.
13. We have thus briefly set out the history of the genesis and developmentof the Royal Prerogative of Mercy because Mr. Seervai has strongly emphasisedthat the Royal Prerogative of Mercy is wide and absolute, and can be exercisedat any time. Very elaborate arguments were addressed by him before us on thisaspect of the matter and several English and American decisions were cited. Inso far as his argument was that there power to suspend the sentence is a partof the larger power of granting pardon it may be relevant to considerincidentally the scope and extent of the said larger power; but as we shallpresently point out, the controversy raised by the present petition lies withina very narrow compass; and so concentration on the wide and absolute characterof the power to grant pardon and over-emphasis on judicial decisions which dealdirectly with the said question would not be very helpful for our presentpurpose. In fact we apprehend that entering into an elaborate discussion aboutthe scope and effect of the said larger power, in the light of relevantjudicial decisions, is likely to create confusion and to distract attentionfrom the essential features of the very narrow point that falls to beconsidered in the present case. That is why we do not propose to enter into adiscussion of the said topic or to refer to the several decisions cited underthat topic.
14. Let us now turn to the law on the subject as it obtains in India sincethe Code of Criminal Procedure was enacted in 1898. Section 401 of the Codegives power to the executive to suspend the execution of the sentence or remitthe whole or any part of the punishment without conditions or upon anyconditions which the person sentenced accepts. Section 402 gives power to theexecutive without the consent of the person sentenced to commute a sentence ofdeath into imprisonment for life and also other sentences into sentences lessrigorous in nature. In addition the Governor-General had been delegated thepower to exercise the prerogative power vesting in His Majesty. Sub-section (5)of s. 401 also provides that nothing contained in it shall be deemed tointerfere with the right of His Majesty, or the Governor-General When suchright is delegated to him, to grant pardon, reprieves, respites of remissionsof punishment. This position continued till the Constitution came into force.Two provisions were introduced in the Constitution to cover the former royalprerogative relating to pardon, and they are Arts. 72 and 161. Article 72 dealswith the power of the President to grant pardons, reprieves, respites orremissions of punishment or to suspend, remit or commute the sentence of anyperson convicted of any offence. Article 161 gives similar power to theGovernor of a State with respect to offences against any law relating to amatter to which the executive power of the State extends. Sections 401 and 402of the Code have continue with necessary modifications to bring them into linewith Arts. 72 and 161. It will be seen, however, that Arts. 72 and 161 not onlydeal with pardons and reprieves which were within the royal prerogative buthave also included what is provided in Sections 401 and 402 of the Code. Besides thegeneral power, there is also provision in Sections 337 and 338 of the Code to tenderpardon to an accomplice under certain conditions.
15. In this case we are primarily concerned with the extent of the power ofpardon vested in the State so far as the Governor is concerned by Art. 161 ofthere Constitution. Article 161 is in these terms :-
'The Governor of a State shall have the power togrant pardons, reprieves, respites or remissions of punishment or to suspend,remit or commute the sentence of any person convicted of any offence againstany law relating to a matter to which the executive power of the Stateextends.'
16. Though Art. 161 does not make any reference to Art. 72 of theConstitution, the power of the Governor of a State to grant pardon etc. to someextent overlaps the same power of the President, particularly in the case of asentence of death. Articles 72 and 161 are in very general terms. It is,therefore, argued that they are note subject to any limitations and therespective area of exercise of power under these two Articles is indicatedseparately in respect of the President and of the Governor of a State. It isfurther argued that the exercise of power under these two Articles is notfettered by the provisions of Arts. 142 and 145 of the Constitution or by anyother law. Article 142(1) is in these terms :-
'The Supreme Court in the exercise of itsjurisdiction may pass such decree or make such order as is necessary for doingcomplete justice in any cause or matter pending before it, and any decree so passedor order so made shall be enforceable throughout the territory of India in suchmanner as may be prescribed by or under any law made by Parliament and, untilprovision in that behalf is so made, in such manner as the President may beorder prescribe.'
17. It will be seen that it consists of two parts. The first part givespower to this court in the exercise of its jurisdiction to pass such decree ormake such order as is necessary for doing complete justice in any cause ormatter pending before it. The second part deals with the enforcement of theorder passed by this Court. Article 145 gives power to this Court with theapproval of the President to make rules for regulating generally the practiceand procedure of the Court. It is obvious that the rules made under Art. 145are in aid of the power given to this Court under Art. 142 to pass such decreeor make such order as is necessary for doing complete justice in any cause ormatter pending before it. Rule 5 of O. XXI of the Rules of this Court was framedunder Art. 145 and is in these terms :-
'Where the petitioner has been sentenced to a termof imprisonment, the petition shall state whether the petitioner hassurrendered. Unless the Court otherwise orders, the petition shall not beposted for hearing until the petitioner has surrendered to his sentence.'
18. This rule was, in terms, introduced into the Supreme Court Rules lastyear and it only crystallized the pre-existing practice of this Court, which isalso the practice in the High Courts. That practice is based on the very soundprinciple which was recognised long ago by the Full Bench of the High Court ofJudicature, North Western Provinces, in 1870, in the case of The Queen v.Bisheshar Pershad (Vol. 2, N.W.P. High Court Reports, p.441). In that case noorder of conviction had been passed. Only a warrant had been issued against theaccused and as the warrant had been returned unserved proclamation had beenissued and attachment of the property of the accused had been ordered, with aview to compelling him to surrender. The validity of the warrant had beenchallenged before the High Court. The High Court refused to entertain hispetition until he had surrendered because he was deemed to be in contempt of alawfully constituted authority. The accused person in pursuance of the order ofthe High Court surrendered and after he had surrendered, the matter was dealtwith by the High Court on its merits. But as observed above the Rules framedunder Art. 145 are only in aid of the powers of this Court under Art. 142 andthe main question that falls for consideration is, whether the order ofsuspension passed by the Governor under Art. 161 could operate when this Courthad been moved for granting special leave to appeal from the judgment and orderof the High Court. As soon as the petitioner put in a petition for specialleave to appeal the matter became sub judice in this Court. This Court underits Rules could insist upon the petitioner surrendering to his sentence as acondition precedent to his being heard by this Court, though this Court could dispensewith and in a proper case could exempt him from the operation of that rule. Itis not disputed that this Court has the power to stay the execution of thesentence and to grant bail pending the disposal of the application for specialleave to appeal. Rule 28 of O. XXI of the Rules does not cover that period, buteven so the power of the Court under Art. 142 of the Constitution to make suchorder as is necessary for doing complete justice in this case was not disputedand it would be open to this Court even while an application for special leaveis pending to grant bail under the powers it has under Art. 142 to pass anyorder in any matter which is necessary for doing complete justice.
19. But it has been argued that, even as the terms of Art. 161 are withoutany limitation, the provisions of s. 401 of the Code of Criminal Procedure arealso in similarly wide terms, and do not admit of any limitations or fetters onthe power of the Governor; the Governor could, therefore, suspend the executionof the sentence passed by the High Court even during the period that the matterwas pending in this Court. In other words, the same power of dealing with thematter of suspension of sentence is vested both in this Court as also in theGovernor.
20. 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 theCourt under s. 426, which enables the Court pending appeal to suspend thatsentence or to release that appellant on bail. It will be seen from thelanguage of s. 426 of the Code of Criminal Procedure dealing with the power ofthe appellate court that, for reasons to be recorded in writing, the court mayorder that the execution of the sentence be suspended or that if the accused isin confinement he may be released on bail or on his own bond. Section 401occurs in Chapter XXIX, headed 'Of suspensions, remissions andcommutations of sentences'. This Chapter, therefore, does not deal withall the powers vested in the Governor under Art. 161 of the Constitution, butonly with some of them. Section 426 is in Chapter XXXI, headed as 'Ofappeal, reference and revision'. Section 426, therefore, dealsspecifically with a situation in which an appeal is pending and the appellatecourt has seisin of the case and is thus entitled to pass such orders as itthinks fit and proper to suspend a sentence. It will thus be seen that whereasChapter XXIX, in which s. 401 occurs, deals with a situation in which pendencyof an appeal is not envisaged, s. 426 deals with a situation in which pendencyof an appeal is postulated. In other words, Chapter XXIX deals with personssentenced 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 thewords 'at any time' indicate that the power conferred by s. 401 maybe exercised without any limitation of time. In the context of s. 401 'anytime' 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 andsentence even when an appeal is pending in the appellate court and s. 426 canbe availed of by the appellant ?'
21. It will be seen that s. 426 is as unfettered by other provisions of theCode as s. 401 with this difference that powers under s. 426 can only beexercised by an appellate court pending an appeal. When both the provisions arethus unfettered, they have to be harmonised so that there may be no conflictbetween them. They can be harmonised without any difficulty, if s. 426 is heldto deal with a special case restricted to the period while the appeal ispending before an appellate court while s. 401 deals with the remainder of theperiod after conviction. We see no difficulty in adopting this interpretationnor is there any diminution of powers conferred on the executive by s. 401 by thisinterpretation. The Words 'at any time' emphasise that the powerunder s. 401 can be exercised without limit of time, but they do notnecessarily lead to the inference that this power can also be exercised whilethe court is seized of the same matter under s. 426.
22. Turning now to Arts. 142 and 161, the argument of Mr. Seervai is thatthough this Court has the power to suspend sentence or grant bail pendinghearing of the special leave petition, that would not affect the power of theexecutive to grant a pardon, using the term in its comprehensive sense, asindicated above. Reference was in this connection made to Balmukand and othersv. The King Emperor (1915) 42 I.A. 133 That was a case where a convictedperson had moved His Majesty in Council for special leave to appeal and thequestion arose as to the power of the executive to suspend the sentence. Inthat connection Lord Haldane, L.C., made the following observations :-
'With regard to staying execution of the sentenceof 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 HisMajesty as to the exercise of his prerogative of pardon is a matter for theExecutive Government and is outside their Lordships' province. It is, ofcourse, open to the petitioners' advisers to notify the Government of Indiathat an appeal to this Board is pending. The Government of India will no doubtgive due weight to the fact and consider the circumstances. But their Lordshipsdo not think it right to express any opinion as to whether the sentence oughtto be suspended'.
23. These observations were made because the Judicial Committee of the PrivyCouncil, unlike the Supreme Court, was not a Court of criminal appeal andtherefore the question of suspending the operation of the sentence of death wasnot within their judicial purview. The granting of special leave by the PrivyCouncil was an example of the residuary power of the Sovereign to exercise hisjudicial functions by way of his prerogative and therefore the petitioner wasleft free in that case to approach the Government of India, as the delegate ofthe Sovereign, to exercise the prerogative power in view of the circumstancethat an appeal top the Privy Council was intended. The footnote to the Reportalso contains the following :
'The petitioners were reprieved by the Governmentof India pending the hearing of the petition for leave to appeal'. (see p.134).
24. It is noteworthy that the reprieve granted in that case covered only theperiod until the grant or refusal of the petition for leave to appeal and didnot go further so as to cover the period of pendency of the appeal to the PrivyCouncil, unlike the order now impugned in this case. The power which was vestedin the Crown to grant special leave to appeal to convicted persons from Indiahas now been conferred on this Court under Art. 136. the power under Art. 136can be exercised in respect of 'any judgment, decree, determination,sentence or order in any cause or matter passed or made by any court ortribunal in the territory of India'. This wide and comprehensive power inrespect of any determination by any court or tribunal must carry with it thepower 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 suchorder as is necessary for doing complete justice in any cause or matter pendingbefore it'. As already indicated, the power of this Court to pass an orderof suspension of sentence or to grant bail pending the disposal of theapplication for special leave to appeal has not been disputed and could nothave been disputed keeping in view the very wide terms in which Art. 142 isworded. When an application for special leave to appeal from a judgment andorder of conviction and sentence passed by a High Court is made, this Court hasbeen issuing orders of interim bail pending the hearing and disposal of theapplication for special leave as also during the pendency of the appeal to thisCourt after special leave has been granted. So if Mr. Seervai's argument iscorrect that the pendency of a special leave application in this Court makes nodifference to the exercise of the power by the executive under Art. 161, thenboth the judiciary and the executive have to function in the same field at thesame time. Mr. Seervai however contended that there could never be a conflictbetween the exercise of the power by the Governor under Art. 161 and by thisCourt under Art. 142 because the power under Art. 161 is executive power andthe power under Art. 142 is judicial power and the two do not act in the samefield. That in our opinion is over-simplification of the matter. It is truethat the power under Art. 161 is exercised by the executive while the powerunder Art. 142 is that of the judiciary; but merely because one power isexecutive and the other is judicial, it does not follow that they can never beexercised in the same field. The field in which the power is exercised does notdepend 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 beingexercised by the executive to suspend the sentence; that power can be exercisedby this Court under Art. 142. The field in which the power is being exercisedis also the same, namely, the suspension of the sentence passed upon aconvicted person. It is significant that the Governor's power has beenexercised in the present case by reference to the appeal which the petitionerintended to file in this Court. There can therefore be no doubt that thejudicial power under Art. 142 and the Executive power under Art. 161 can withincertain narrow limits be exercised in the same field. The question thatimmediately arises is one of harmonious construction of two provisions of theConstitution, as one is not made subject to the other by specific words in theConstitution itself. As already pointed out, Art. 161 contains no words oflimitation; in the same way, Art. 142 contains no words of limitation and inthe fields covered by them they are unfettered. But if there is any field whichis common both, the principle of harmonious construction will have to beadopted in order to avoid conflict between the two powers. It will be seen thatthe ambit of Art. 161 is very much wider and it is only in a very narrow fieldthat the power contained in Art. 161 is also contained in Art. 142, namely, thepower of suspension of sentence during the period when the matter is sub-judicein this Court. Therefore on the principle of harmonious construction and toavoid a conflict between the two powers it must be held that Art. 161 does notdeal with the suspension of sentence during the time that Art. 142 is inoperation and the matter is sub-judice in this Court.
25. In this connection it is well to contrast there language of s. 209(3)and s. 295(2) of the Government of India Act, 1935. Section 209(3) gave powerto the Federal Court to order a stay of execution in any case under appeal tothe Court, pending the hearing of the appeal. Section 295(2) provided thatnoting in this Act shall derogate from the right of His Majesty, or of theGovernor General if any such right is delegated to him by His Majesty, to grantpardons, reprieves, respites or remissions of punishments. It may have beenpossible to argue on the language of s. 295(2) that the prerogative exercisedby His Majesty transcended the power of the Federal Court under s. 209(3); butwhen 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 thisConstitution' or 'Notwithstanding anything contained in thisConstitution' in them. Such words have been used in many articles of theConstitution : (See for example, Art. 262(2) which provides specifically fortaking away by Parliament by law the power of this Court in disputes relatingto water and begins with words 'Notwithstanding anything in thisConstitution'). The absence therefore of any such qualifying words in Art.161 makes the power of this Court under Art. 142 of the same wide amplitudewithin its sphere as the power conferred on the Governor under Art. 161.Therefore if there is any field where the two powers can be exercisedsimultaneously the principle of harmonious construction has to be resorted toin order that there may not be any conflict between them. On that principle thepower under Art. 142 which operates in a very small part of the field in whichthe power under Art. 161 operates, namely, the suspension and execution ofsentence during the period when any matter is sub-judice in this Court, must beheld not to be included in the wider power conferred under Art. 161.
26. In this connection Mr. Seervai drew our attention to the power of nolleprosequi. It may be mentioned that that power is not analogous to the power ofpardon though its exercise may result in a case in a court coming to an end.Similar powers are contained in Sections 333 and 494 of the Code of CriminalProcedure. The fact that the Advocate General in the one case and the PublicProsecutor in the other can bring a prosecution to an end has in our opinion nobearing 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 thepresiding judge directs that the discharge shall amount to an acquittal. Unders. 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 suspensionor remission or commutation of sentence have no bearing on the question beforeus.
27. In the present case, the question is limited to the exercise by theGovernor of his powers under Art. 161 of the Constitution suspending thesentence during the pendency of there special leave petition and the appeal tothis Court; and the controversy has narrowed down to whether for the periodwhen this Court is in seizin of the case the Governor could pass the impugnedorder, having the effect of suspending the sentence during that period. Therecan be no doubt that it is open to the Governor to grant a full pardon at anytime even during the pendency of the case in this Court in exercise of what isordinarily called 'mercy jurisdiction'. Such a pardon after theaccused person has been convicted by the Court has the effect of completelyabsolving him from all punishment or disqualification attaching to a convictionfor a criminal offence. That power is essentially vested in the head of theExecutive, because the judiciary has no such 'mercy jurisdiction'. But thesuspension of the sentence for the period when this Court is in seizin of thecase could have been granted by this Court itself. If in respect of the sameperiod the Governor also has power to suspend the sentence, it would mean thatboth the judiciary and the executive would be functioning in the same field atthe same time leading to the possibility of conflict of jurisdiction. Such aconflict was not and could not have been intended by the makers of theConstitution. But it was contended by Mr. Seervai that the words of theConstitution, namely, Art. 161 do not warrant the conclusion that the power wasin any way limited or fettered. In our opinion there is a fallacy in theargument in so far as it postulates what has to be established, namely, thatthe Governor's power was absolute and not fettered in any way. So long as thejudiciary has the power to pass a particular order in a pending case to thatextent the power of the Executive is limited in view of the words either of Sections401 and 426 of the Code of Criminal Procedure and Arts. 142 and 161 of theConstitution. If that is the correct interpretation to be put on theseprovisions in order to harmonise them it would follow that what is covered inArt. 142 is not covered by Art. 161 and similarly what is covered by s. 426 isnot covered by s. 401. On that interpretation Mr. Seervai would be right in hiscontention that there is no conflict between the prerogative power of thesovereign state to grant pardon and the power of the courts to deal with apending case judicially.
28. In this connection it may be relevant to deal with another argumenturged by Mr. Seervai in respect of the rule framed by this Court under O. 21,r. 5. He contended that Art. 145 under which rules have been framed by thisCourt is in terms subject to the provisions of any law made by Parliament, andhe also emphasised the fact that before the rules can come into force they haveto obtain the approval of the President, In other words, the argument is thatthe rule-making power of this Court is no more than sub-ordinate legislation,and so if there is a conflict between O. 21, r. 5 and Art. 161 the rule mustyield to the powers conferred on the Governor by Art. 161. This argumentoverlooks the fact that in substance and effect the conflict is not between thesaid rule and Art. 161 but between the wide powers conferred on this Court byArt. 142 and similar wide powers conferred on the Governor under Art. 161. Itwould, therefore, be fallacious to suggest that compliance with the rule wouldbecome unnecessary because a higher power under Art. 161 has been exercised bythe Governor, and so in the face of the order passed by the Governor there isno longer any need to comply with the rule. We have already referred to thegenesis of this rule and we have pointed out that though the rule may have beenframed under Art. 145 the source of the power of this Court to grant bail or tosuspend sentence pending hearing of any criminal matter before it is not thesaid rule nor Art. 145 but Art. 142; that being so what we have to decide inthe present case is whether having regard to the width and amplitude of thepowers conferred on this Court and the Governor by Arts. 142 and 161respectively it would not be reasonable and proper to harmonise the said twoarticles in such a way as the avoid any conflict between the said two powers.In the decision of this question the legal character of the rules that may beframed under Art. 145 cannot have any material bearing.
29. In this connection it would be relevant to consider what would be thelogical consequence if Mr. Seervai's argument is accepted. In the present casethe Governor's order has been passed even before the petitioner's applicationfor special leave came to be heard by this Court; indeed it was passed beforethe said application was filed and the reason for passing the order is statedto 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 inthis Court, and on a motion made by the petitioner the Court has directed himto be released on bail on executing a personal bond of Rs. 10,000 and onfurnishing two sureties of like amount. According to Mr. Seervai, even if suchan order is passed by this Court in a criminal matter pending before it, itwould be open to the petitioner to move the Governor for suspension of hissentence pending the hearing of his application and appeal before this Courtand the Governor may, in a proper case, unconditionally suspend the sentence.In other words, Mr. Seervai frankly conceded that, even in a pending criminalmatter before this Court, an order passed by this Court may in effect be setaside by the Governor by ordering an unconditional suspension of the sentenceimposed on the petitioner concerned. This illustration clearly brings out thenature of the controversy which we are called upon to decide in this case. IfMr. Seervai's argument is accepted it would inevitably mean that by exercisinghis power under Art. 161 the Governor can effectively interfere with an orderpassed 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 exactlythe same. Should the sentence passed against an accused person be suspendedduring the hearing of an appeal on the ground that an appeal is pending Thatis the question raised both before this Court and before the Governor. In sucha case it would be idle to suggest that the field on which the power of theGovernor under Art. 161 can be exercised is different from the field on whichthe power of this Court can be exercised under Art. 142. The fact that thepowers invoked are different in character, one judicial and that otherexecutive, would not change the nature of the field or affect its identity. Wehave given our anxious consideration to the problem raised for our decision inthe present case and we feel no hesitation in taking the view that any possibleconflict in exercise of the said two powers can be reasonably and properlyavoided by adopting a harmonious rule of construction. Avoidance of such apossible conflict will incidentally prevent any invasion of the rule of lawwhich is the very foundation of our Constitution.
30. It has been strenuously urged before us that the power of grantingpardon 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 largerpower to grant pardon, and is similar in character and can be similarlyexercised. This argument is fallacious; it ignores the essential differencebetween the general power to grant pardon etc., and the power to suspendsentence in criminal matters pending before this Court. The first is anexclusively executive power vesting in the Governor under Art. 161; it does notvest in this Court; and so the field covered by it is exclusively subject tothe exercise of the said executive power; and so there can be no question ofany conflict in such a case; conflict of powers obviously postulates theexistence 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 fieldcovered by the said power entrusted to this Court under Art. 142 can also becovered by the executive power of the Governor under Art. 161, and that raisesthe problem of a possible conflicts between the two powers. That is why we haveobserved earlier that concentration or even undue emphasis on the character andsweep of the larger power to grant pardon is likely to distract attention fromthe essential features of the power to suspend sentence with which alone we areconcerned in the present proceedings.
31. As a result of these considerations we have come to the conclusion thatthe order of the Governor granting suspension of the sentence could onlyoperate until the matter became sub judice in this Court on the filing of thepetition for special leave to appeal. After the filing of such a petition thisCourt was seized of the case which would be dealt with by it in accordance withlaw. It would then be for this Court, when moved in that behalf, either toapply r. 5 of O. XXI or to exempt the petitioner from the operation of thatrule. It would be for this Court to pass such orders as it thought fit as towhether the petitioner should be granted bail or should surrender to hissentence or to pass such other or further orders as this Court might deem fitin all the circumstances of the case. It follows from what has been said thatthe Governor had no power to grant the suspension of sentence for the periodduring which the matter was sub judice in this Court.
32. A great deal of argument was addressed to us as to whether the conditionimposed by the Governor in his order impugned in this case was or was notlegal. In the view we have taken of the Governor's power, so far as therelevant period is concerned, namely, after the case became sub judice in thisCourt, it is not necessary to pronounce upon that aspect of the controversy.
33. In the result the application dated April 21, 1960, as amended by theaffidavit of July 6, 1960, praying that the special leave petition be listedfor hearing without requiring the petitioner to surrender in view of the orderof the Governor fails and is dismissed.
34. I have had the advantage of reading the Order proposed by my Lord theChief Justice, but I regret I am unable to agree with it and I proceed to givemy reasons :
In this petition which is brought for exemption fromsurrender to the sentence imposed on the petitioner a question of greatconstitutional importance arises. The petitioner submits that his sentencehaving been suspended by the order of the Governor of the erstwhile State ofBombay, the rule made by this Court as to surrender which is a conditionprecedent to the hearing of petition of leave to appeal against the judgment ofthe High Court is inapplicable to him and that it is a fit case in which heshould be exempted from the operation of the rule. The facts which have givenrise to this petition are set out in the order of my Lord the Chief Justice andneed not be repeated here.
35. The decision of this petition depends upon the nature, effect, extentand operation of the powers conferred by arts. 142(1), 145 and 161 of theConstitution; 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 todelve into the history of the prerogative of pardons in England and America andsee how far the law laid down by courts of those countries and the practicethere followed is helpful in discovering the true intent and purpose of thesearticles of the Constitution.
36. Under the Indian Constitution the power that grant pardons is vested inthe President and the Governors of States. Article 72 deals with the former andart. 161 with the latter. Article 72 which is in Part V, Chapter I, dealingwith the Union Executive provides :-
Art. 72(1) 'The Presidentshall have the power to grant pardons, reprieves, respites or remission ofpunishment or to suspend, emit or commute the sentence of any person convictedof any offence.
(b) in all cases where thepunishment or sentence is for an offence against any law relating to a matterto which the executive power of the Union extends;
(c) in all cases where thesentence is a sentence of death.
(3) Nothing in sub-clause (c) ofclause (1) shall affect the power to suspend, remit or commute a sentence ofdeath exercisable by the Governor of a State under any law for the time beingin force'.
Article 161 which is in Part VI is as follows :-
'The Governor of a State shall have the power togrant pardons, reprieves, respites or remissions of punishment or to suspend,remit or commute the sentence of any person convicted of any offence againstany law relating to a matter to which the executive power of the Stateextends'.
Article 142(1) is as under :-
'The Supreme Court in the exercise of itsjurisdiction may pass such decree or make such order as is necessary for doingcomplete justice in any cause or matter pending before it'.
Both articles 72 and 161 give the widest power to the President or theGovernor of a State as the case may be and there are no words of limitationindicated in either of the two articles. It was argued that under arts. 142 and145(1) of the Constitution certain powers are conferred on the Supreme Courtand if the articles conferring powers on the President and the Governors areread along with the power given to the Supreme Court they create a conflict andtherefore to give a harmonious interpretation to all the four articles it isnecessary to cut down the amplitude of the powers conferred by arts. 72 and 161of the Constitution. In regard to suspension of sentences it will be fruitfulto trace the legislative history of the relevant powers of the executive andthe judiciary which arise for construction.
37. In the Criminal Procedure Code of 1861 (Act XXV of 1861) the power ofthe 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 topunishment for an offence, the Governor General of India in Council, or thelocal Government, may, at any time, without conditions, or upon any conditionwhich such person shall accept, remit the whole or any part of the punishmentto which he shall have been sentenced'.
38. This section was in Chapter III dealing with 'PreliminaryRules' which included among other things passing of sentences, the placeof confinement of persons convicted and the power of remission of sentences bythe Governor General. In Chapter XXX dealing with appeals by s. 421 theappellate court was given the power to suspend sentences pending appeals andrelease 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 besuspended, and if the appellant be in confinement for an offence which isbailable, may order that he be released on bail'.
39. Then came the Criminal Procedure Code of 1872, Act X of 1872. In ChapterXXIII dealing with execution of sentences the power of the executive to remitpunishment was contained in s. 322 which read as under :-
S. 322. 'When any person has been sentenced topunishment for an offence, the Governor General of India in Council, or theLocal Government, may at any time, without conditions, or upon any conditionswhich the person sentenced accepts, remit the whole or any part of thepunishment to which he has been sentenced.................................'.
40. And the power of suspension of sentence pending appeals and release andbail was contained in s. 281, a section in Chapter XX dealing with appealswhich was in the following terms :-
S. 281. 'In any case inwhich an appeal is allowed, the Appellate Court may, pending the appeal, orderthat the sentence be suspended, and, if the appellant be in confinement for anoffence which is bailable, may order that he be release on bail.
The period during which thesentence is suspended shall be omitted in reckoning the completion of thepunishment'.
41. The Criminal Procedure Code was re-enacted 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 hasbeen sentenced to punishment for an offence, the Governor General in Council,or the Local Government, may at any time, without conditions, or upon anyconditions which the person sentenced accepts, suspend the execution of hissentence, or remit the whole or any part of the punishment to which he has beensentenced.....................................................................................
Nothing hearing contained shallbe deemed to interfere with the right of Her Majesty to grant Pardons,reprieves, receipts, or remissions of punishment'.
42. The power of the appellate courts as to suspension of sentences pendingappeals was given in s. 426 which was in Chapter XXXI dealing with appeals andthat section was as follows :-
'426. Pending any appeal bya convicted person, the Appellate Court may, for reasons to be recorded by itin writing order that the execution of the sentence or order appealed againstbe suspended and, if he is in confinement, that he be released on bail or onhis own bond.
The power conferred by thissection on an Appellate Court may be exercised also by the High Court in thecase of any appeal by a convicted person to a Court subordinate thereto.
When the appellant is ultimatelysentenced to imprisonment, penal servitude or transportation, the time duringwhich he is so released shall be excluded in computing the term for which he isso sentenced'. A new Criminal Procedure Code was enacted in 1898, aportion of which was subsequently amended. The section dealing with powers ofsuspension or remission of sentence is 401 which reads as under :-
'401. (1) When any personhas been sentenced to punishment for an offence, the Governor General inCouncil or the local Government may at any time without conditions or upon anyconditions which the person sentenced accepts, suspend the execution of hissentence or remit the whole or any part of the punishment to which he has beensentenced .........................................................................'.
The original sub-section (5) ofthis section was :
'(5) Nothing hereincontained shall be deemed to interfere with the right of His Majesty or of theCentral Government when such right is delegated to it to grant pardons,reprieves, respites or remissions of punishment'.
And this sub-section was repealedby the Adaptation of Laws Order, 1950. The words Governor General in Council orthe Local Government were suitably amended with the various constitutionalcharges. The corresponding section of appellate courts is contained in s. 426which is in Chapter XXXI dealing with appeals etc. The relevant portions ofthis section when quoted are as under :-
'426. (1) Pending anyappeal by a convicted person, the Appellate Court may, for reason to berecorded by it in writing, order that the execution of the sentence of orderappealed against be suspended and, also, if he is in confinement, that he bereleased on bail or on his own bond. ...............................................................................................
(2) (B) Where a High Court issatisfied that a convicted person has been granted special leave to appeal tothe Supreme Court against any sentence which the High Court has imposed ormaintained, the High Court may, if it so thinks fit, order that pending theappeal the sentence or order appealed against be suspended, and also, if suchperson is in confinement, that he be released on bail'. (This sub-sectionwas added later).
43. It may be mentioned that in the Code of 1861 the power given to theGovernor General was to remit punishment to which an accused person wassentenced and the power of the appellate court was to suspend the sentencepending appeal in non-bailable offences and to release on bail in bailablecase. In the Code of 1872 also the power of the Governor General and of thelocal Government was one of remission of punishment and the power of theappellate court was of suspension of sentences pending the appeal. In s. 401 ofthe Act of 1882 the legislature chose to use the words 'suspension theexecution of a sentence or remit the whole or any part of punishment'. Thepower was discretionary and there is nothing to indicate that this power was inany way limited. But the power given to the appellate court was differentlyworded from what was in the previous Codes in that how it was necessary for theCourts to record reasons emphasising that the two powers - the one exercised bythe executive and the other exercised by the judiciary - were two separatepowers, no doubt, operating for the same purpose but exercised on differentconsiderations and in different circumstances. Of course this does not meanthat the courts did not exercise their power judicially previous to the Act of1882.
44. In the Act of 1898 also, which is still that law, the same power ofsuspension of the execution of sentences or remission of punishments ismentioned in s. 401 and in s. 426 giving the powers of the appellate courts thewords 'for reasons to be recorded in writing' are repeated showingthat the legislature wanted to make it clear about the essential difference inthe nature of the exercise of the power conferred on the executive and on thejudiciary. The words 'at any time' in s. 401 are very wide and showthe plenary nature of the power.
45. In the Government of India Acts previous to the Act of 1935 nothing wassaid about the power of the Crown or the power of the Governor General as adelegate of the Crown, and it cannot be said that the Indian legislature,whatever its powers, could affect the King's prerogative and therefore anyprovision in the Criminal Procedure Code was wholly impuissant as to the King'sprerogative of pardons. See Henrietta Muir Edwards v. Attorney General ofCanada  A.C. 124 Provisions such as s. 401(5) are by way of abundantcaution.
46. Section 295 of the Constitution Act of 1935 was a special provision asto the power of the executive to suspend, remit or commute a sentence of death.Sub-section (1) of that section provided that the power of the Governor Generalin his discretion were the same as were vested in the Governor General inCouncil immediately before the commencement of Part III of that Act but save asthat no authority in India outside a province had any power to suspend, remitor 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 derogatefrom the right of His majesty, or of the Governor General, if any such right isdelegated to him by His Majesty, to grant pardons, reprieves, respites orremissions of punishment.'
47. Thus the power of the King or of the Governor General as a delegate togrant suspension, remission or commutations remained unaffected by theintroduction of federal system with division of subjects between the center andthe Provinces. This section was in the part dealing with the provisions as tocertain legal matters. Thus under the Government of India Act the GovernorGeneral in his discretion had the power to remit etc. sentences of death andGovernors of provinces had the power in regard to all sentences passed in aprovince but the power of the King and of the Governor General as a delegateremained unaffected by the first sub-section of the section. Thus upto thecoming into force of the Constitution the exercise of the King's prerogativeremained unaffected, was plenary, unfettered and exercisable as hitherto.
48. Historically in England the Kind as the autocratic head of theGovernment always had the power to pardon.
49. This was a part 'of that special pre-eminence which the King hathover and above all other persons and out of the ordinary course of the commonlaw, in right of his royal dignity'. Bl. Comm, (i). 239.
50. A pardon is said by Lord Coke to be a 'work of mercy; whereby theKing, either before attainder, sentence or conviction or after forgiveth anycrime, offence, punishment, execution, right, title, debt or duty, temporal orecclesiastical'. 3 Inst. 233.
51. The common law is thus stated in Hale's Pleas of the Crown, Vol. 2,Chapter 58, page 412 :
'Reprieves or stays ofjudgment 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 satisfiedwith that verdict, or the evidence is uncertain, or the indictment insufficientor doubtful whether within clergy; and sometimes after judgment, if it be asmall 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 bythe justices of gaol delivery, also their sessions be adjourned or finished,and this by reason of common usage, 2 Dyer, 205a, 73 Eng. Reprint, 452.
3. Ex necessitate legis. Whichis in case of pregnancy, where woman is convict of felony or treason'.Blackstone thus expresses this prerogative :
'The only other remainingways of avoiding the execution of the judgment are by a reprieve or a pardon;whereof the former is temporary only, the latter permanent.
1. A reprieve (from reprendre,to take back) is the withdrawing of a sentence for an interval of time; wherebythe execution is suspended. This may be, first ex arbitrio judicis; eitherbefore 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 isdoubtful whether the offence be within clergy or sometime if it be a smallfelony, or any favourable circumstances appear in the criminal's character, inorder to give room to apply to the Crown for either an absolute or conditionalpardon. These arbitrary reprieves may be granted or taken off by the justicesof gaol delivery, although their session be finished, and their commissionexpired; but this rather by common usage, than of strict right.
Reprieve may also be ex necessitate legis; as, where a woman is capitallyconvicted and pleads her pregnancy; though this is no cause to stay thejudgment, yet it is to respite the execution till she be delivered. This is amercy dictated by the law of nature in favourem prolis'. Bk. 4, chapt. 31,pp. 394, 395.
52. After imposition of the sentence execution of the sentence may besuspended for a time which is known as respite and may be granted by there kingor by the Court. Orfield's Criminal Procedure from Arrest to Appeal, p. 529
53. As the possessions of the kings of England expanded and several newcolonies came under their sway the power of pardon which the kings exercisedcame to be exercised by their representatives in the colonies and in Americafrom them it went to the State Governors and to the President for federaloffences. The same process was followed in this country as the variousenactments and provisions set out above show. It may be repetitive but itcannot be sufficiently emphasised that both the power of pardon and the powerof reprieve which is a part of the all comprehensive power of pardon areexecutive acts and can be exercised at any time and in any circumstancesuntrammelled and without control and in absolute freedom except that prescribedby the Constitution; Craies on Statute law, page 483.
54. In the Constitution the power of the President is the same as it was ins. 295 of the Constitution Act of 1935 and is unaffected in regard to sentenceof death by the power conferred under art. 161. The power of the Governorcontained in art. 161 also is of the widest amplitude as the words of thearticle which have been quoted above would show. In construing a constituent oran organic Statute such as the Constitution that interpretation must beattached which is most beneficial to the widest amplitude of its powers;British Coal Corporation v. King  A.C. 500 The Judicial Committee inHenrietta Muir Edwards v. Attorney General of Canada  A.C. 124said :-
'Their Lordships do not conceive it to be the dutyof this Board - it is certainly not their desire - to cut down the provisionsof the Act by a narrow and technical construction, ......................'.
55. In America the exercise of the power of pardon has been held to begoverned by the same principles as are applicable to the exercise of the King'spower of mercy under the English Constitution. In United States v. Wilson 8L.Ed 640 Marshall, C.J., referring to the exercise of this powersaid :
'As this power had been exercised from timeimmemorial by the executive of that nation whose language is our language, andto whose judicial institutions ours bears a close resemblance; we adopt theirprinciples respecting the operation and effect of a pardon, and look into theirbooks for the rules prescribing the manner in which it is to be used by theperson who would avail himself of it'.
56. Wayne, J., in Ex parte Wells (15 L.Ed. 421, 424 said :
'We still think so, and thatthe language in the Constitution, conferring the power to grant reprieves andpardons, must be construed with reference to its meaning at the time of ourseparation from Great Britain, that power had been exercised by the King, asthe Chief Executive. Prior to the Revolution, the Colonies, being in effectunder the laws of England, were accustomed to the exercise of it in the variousforms, as they may be found in the English books. They were of course to beapplied as occasions occurred, and they constituted a part of the jurisprudenceof Anglo-America. At that time of the adoption of the Constitution, Americanstatesmen were conversant with the prerogatives exercised by the Crown. Hencewhen the words to grant pardons were used in the Constitution, they convey tothe mind the authority as exercised by the English Crown, or itsrepresentatives in the Colonies. At that time both Englishmen and Americansattached the same meaning to the words 'pardon'. In the conventionwhich framed the Constitution, no effort was made to define or change itsmeaning, although it was limited in cases of impeachment.
We must then give the word thesame meaning as prevailed here and in England at the time it found a place inthe Constitution. This is in conformity with the principles laid down by thiscourt in Cathcart v. Robinson, 5 Pet. 264; and in Flavell's case, 8 Watts& Serg. 197; Attorney General's brief'.
57. In Ex parte Grossman 69 L.Ed. 527, 530, 532, 535 Taft, C.J., said :-
'.................................................................. The language of the Constitution cannot be interpretedsafely except by reference to the common law and to British institutions asthey were when the instrument was framed and adopted. The statesmen and lawyersof the Convention, who submitted it to the ratification of the Convention ofthe thirteen states, were born and brought up in the atmosphere of the commonlaw, and thought and spoke in its vocabulary. They were familiar with otherreforms of government recent and ancient, and indicated in their discussionsearnest study and consideration of many of them, but when thy came to put theirconclusions into the form of fundamental law in a compact draft, they expressedthem in terms of the common law, confident that they could be shortly andearnestly understood'.
58. According to the American as also Indian Constitution the power as givento the President is not to reprieve and pardon but that he shall have power togrant reprieves and pardons for offences against the United States except incases of impeachment. Wayne, J., in Ex parte Wells 15 L.Ed. 421, 425 at page425 has explained the difference between the meaning of these two expressions.'The first conveys only the idea of an absolute power as to the purpose orobject 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 theymay be by their denomination. We have shown that conditional pardon is one ofthem. A single remark from the power to grant reprieves will illustrate thepoint. That is not only to be used to delay a judicial sentence when thePresident shall think the merits of the case or some cause connected with theoffender may require it, but it also extends to cases ex necessitate legis................. Though the reprieve in either case produces delay in theexecution of a sentence', the reprieves in the two cases are different intheir legal character and different as to the causes which may induce theexercise of the power to reprieve.
59. In India also the makers of the constitution were familiar with Englishinstitutions and the powers of English Kings and the exercise of their powerboth by the Governor General and the Governors of British India and of itsprovinces. It will be legitimate to draw on English law for guidance in theconstruction of the articles dealing with the power of the President and of theGovernor in regard to pardons including the other forms of clemency comprisedin the two articles. It will not be inappropriate to say that the framers ofthe Indian Constitution were not only familiar and trained in BritishJurisprudence but were familiar with the American Constitution and they weredrafting their Constitution in English language and therefore to draw upon theAmerican parallel would be wholly legitimate.
60. The history of the prerogative of pardons and reprieves shows that thepower of the executive in the matter of pardons and reprieves and other formsof pardons irrespective of the name used is of the widest amplitude and isplenary in nature and can be exercised at any time after the commission of theoffence. The power of the executive is an act of grace and clemency. It is asovereign or governmental power which in a monarchy is inherent in the King andin a Republic in the State or the people and which may, by the Constitution, beconferred on an officer or a department. It is an executive power of theGovernor and it is the same as was exercised by the colonial Governors inAmerica 67 C.J.S. 565.
61. Wayne, J., in the matter of Ex parte Wells 15 L.Ed. 421,424 hasdescribed it as an act of mercy and an act of clemency applicable to pardons ofevery kind and form. Field, J., in Ex parte Garland 18 L.Ed 366, 370, 371termed it the benign prerogative of mercy. It is the power for avoiding theexecution of the judgment by reprieve or pardon whereof the former is temporaryand the latter permanent. According to Willoughby's Constitution of America,Vol. III, p. 1492 :-
'The power to pardon includes the right to remitpart of the penalty as well as the whole and in either case it may be madeconditional. The power may be exercised at any time after the offence iscommitted, that is, either before, during, or after legal proceedings forpunishment'. Ex parte Garland 4 Wall. 333.
62. Reprieve whereby the execution is suspended is merely the postponementof the execution for a definite time and it does not and cannot defeat the ultimateexecution of the judgment but merely delays it. It is extended to a prisoner inorder to afford him an opportunity to procure some amelioration of the sentencewhich has been imposed upon him. But power to reprieve is an executive act andthe sole judge of the sufficiency of facts and of the propriety of the actionis 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 whenconferred on the head of the executive is an executive power and function. Thepardon may be conditional and the grant of a conditional pardon is not illegal.
63. It has been held that the power of pardon is not subject to legislativecontrol; Ex parte Garland 18 L.Ed 366, 370, 371; nor is it open to thelegislature to change the effect of pardon; United States v. Klein 20 L.Ed519. The executive may grant pardon for good reasons or bad or for any reasonsat all; its act is final and irrevocable. The Courts have no concern with thereasons which actuated the executive. This power is beyond the control of thejudiciary; 39 Am. Jur. 545, Sections 43; Horwitz v. Connor 6 C.L.R. 1497
64. Thus in England the exercise of the power by the King is the exercise ofthe power of mercy. The power is plenary in nature and unfettered and as far asconstitutional powers are concerned it can be exercised at any time after thecommission of the offence. In America the power of the executive under theFederal or State Constitution is the same in its nature as that exercised bythe 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 fromundue harshness or individual mistake in the operation or enforcement of thecriminal law. It is essential in popular Governments as well as in monarchiesto vest in some other party than courts the power to ameliorate or avoidparticular criminal judgments and the exercise of this power is the exercise bythe highest executive of his full discretion and with the confidence that hewill not abuse it.
65. In Ex Parte Garland 18 L.Ed 366, 370, 371, it was held that thePresident's pardon was not subject to legislative control, said Field, J.,'the law thus conferred is unlimited ................ It extends to everyoffence known to the law and may be exercised at any time after its commission....................... The power of the President is not subject tolegislative control. Congress can neither limit the effect not exclude from itseffect any class of offenders. The benign prerogative of mercy resposed in himcannot be fettered by any legislative restriction ................'. In Exparte Grossman 65 L.Ed 527, 530, 532, 535 it was held that there was nodifference between the power of the President and that of the king in regard topardon and at page 535 it was observed by Taft, C.J. :-
'Executive clemency exists to afford relief fromundue harshness or evident mistake in the operation or enforcement of thecriminal law. The administration of justice by the courts is not necessarilyalways wise or certainly considerate of circumstances which may properlymitigate guilt. To afford a remedy, it has always been thought essential inpopular governments, as well as in monarchies to vest in some other authoritythan the court power to ameliorate or avoid particular criminal judgment. It isa check intrusted to the Executive for special cases'.
66. That case also laid down that the exercise of the executive power to theextent of destroying the deterrent effect of judicial punishment would be topervert it but whosoever is to make the power useful must have full discretionto exercise it and that discretion is vested in the highest officer in thenation.
67. In Biddle v. Vuco Perovich 71 L.Ed 1161, Holmes, J., in dealingwith pardons said :-
'Pardon is not a private act of grace from anindividual happening to possess power. It is a part of the constitutionalscheme. When granted it is the determination of the ultimate authority that thepublic welfare will be better served by inflicting less than what the judgmentfixed'
and in Sorrells v. United States 77 L.Ed 413 the observation ofHolmes, J., were followed and it was held the clemency is the function of theexecutive and it is the function of the courts to construe the Statute and notto defeat it as construed.
68. A review of these American cases shows that the courts there haveaccepted that the English principles respecting the extent, operation andeffect of pardons and reprieves apply in America; that the power which wasexercised by the king and by delegation by the colonial Governors is nowexercised by the highest executive in the land and that a pardon which includesa reprieve and a respite may variously be described as an act of clemency, anact of mercy, an act of grace, an exercise of the sovereign or governmentalpower or the determination of the ultimate authority. Therefore the principleswhich govern the exercise of this executive power are quite different fromthose which govern the exercise of the power of the courts. It may also bepointed out that the American courts have frowned upon any interference by thecourts or by the legislature with the extent and effect of the prerogative ofthe people vested in the President in the exercise of his power of being mercy.It was so held in Ex parte Garland 18 L.Ed 366, 370, 371 and United States v.Klein 20 L.Ed 519 In the former case the President had given a pardon torebels who had taken part in the civil war against the forces of the federationand the legislature had reversed that pardon and it was held that pardon wasnot subject to legislature control and in the latter which was a conditionalpardon the power of the legislature was held not to be exercisable.
69. The power of the executive can be exercised at any time. This is so inEngland, in America and in India. 'The King', said Lord Coke,'can forgive any crime, offence, punishment or execution either beforeattainder, sentence or conviction or after'; 3 Insti. 233; Hawkins' Pleasof the Crown bk. 2, Chapt. 37. In the Indian Statute the words 'anytime' are expressly used in s. 401 of the Criminal Procedure Code and inEngland it is an accepted practice that the Crown can pardon before or afterconviction or before trial. As far as the power of pardon before trial isconcerned it can be exercised by entering nolle prosequi which is also the lawin India. Under s. 333 of the Code of Criminal Procedure the Advocate Generalcan, in cases tried before the High Court, enter a nolle prosequi and thispower is absolute and not subject to the control of the court. This sectionmakes it clear that before a verdict is given the Advocate-General may informthe court on behalf of the Government that he will not further prosecute thedefendant upon the charge and he shall be discharged but this discharge does notamount to acquittal unless the Judge otherwise directs. We are informed that inthe city of Bombay the power of the Advocate-General extends to cases tried bythe court of Session. There is no chance of private complainant being able torestart the proceedings because the Crown can always take over any criminalproceeding and then enter a nolle prosequi. Similarly the power is given inregard to other courts of original jurisdiction to the Public Prosecutor unders. 494, Criminal Procedure Code, but that power is not as absolute as it is inthe case of s. 333 because it is subject to the consent of the Court.
70. In the absence of constitutional restrictions the power of pardon andreprieve whether conditional or unconditional may be exercised at any timeafter the commission of the offence either before legal proceedings are takenor during their pendency or after an appeal is filed and while the case ispending in the appellate court. It was so held in Ex parte Grossman 69 L.Ed527, 530, 532, 535; Ex parte Garland 18 L.Ed 366, 370, 371 and so stated in67 C.J.S. 572. In the absence of a limitation imposed by law there is no limitto the period of reprieve and successive reprieves where a period is prescribedare not illegal : 67 C.J.S. p. 582.
A case where the power of reprieve was exercised andoperated during the pendency of the appellate proceedings is Rogers v. Peck 50L.Ed 256 There one Mary Mabel Rogers was granted reprieve to permit her toappeal to the Supreme Court of the United States from the order of the DistrictCourt denying habeas corpus. She was convicted of murder at the December term1903 and was confined in solitary confinement until February 3, 1905, on whichday she was to suffer the penalty of death. On February 1, 1905, the Governorreprieved the execution of sentence until June 2, 1905. On April 29, 1905, shepresented a petition for a new trial to the Supreme Court of the State. Thepetition was admitted on May 5, 1905, and fixed for hearing on 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 untilJune 23, 1905. Thereupon she filed her petition in the Federal Court for a writof habeas corpus which was dismissed. On there date the Governor furtherreprieved the execution of the sentence until December 8, 1905. The appeal tothe Supreme Court of the United States was admitted on June 22, 1905, but theappeal was finally dismissed on November 27, 1905. One of the grounds of appealin the Supreme Court was that the Governor, by giving the reprieve, issued hisorder requiring the execution while proceedings were pending in the court ofthe United States for her relief on habeas corpus and therefore the order wasnull and void and another ground was the failure of the Supreme Court of theState to grant and fixing a date for execution. Both the grounds were overruledand it was held that the reprieve was to allow the cause to be heard on appealin the Supreme Court and that the order of the Governor was not against dueprocess clause and when the Governor had given a reprieve beyond the hearing inthe State Supreme Court there was no occasion for the court to act in thematter. This case shows that the power of reprieve is exercisable even duringthe period that proceedings are pending in an appellate court.
71. The argument in opposition to the submissions of the learnedAdvocate-General was that although the power of the executive to grant pardonor reprieve or suspension of sentence was absolute and could be exercised atany time yet there was statutory as well as a constitutional limitation on theexercise of this power which excluded the power of the executive for the periodwhen the case of a defendant had been brought before the Supreme Court orbefore any other appellate court as the case may be. For the latter referencewas made to s. 426 of the Criminal Procedure Code which gives the power toappellate courts to suspend a sentence pending an appeal for reasons to berecorded in writing and as to the former arts. 142 and 145 of the Constitutionwere referred to Article 142 confers on the Supreme Court the power to docomplete justice in any cause or matter pending before it and art. 145 gives tothe Supreme Court power to make rules with the approval of the President butsubject to any law which the Parliament may pass. Under art. 145 which is therule making power of this court, the court has made two rules which arerelevant for the purpose of this appeal and they are Order 21, Rule 5 and Order21, Rule 28 and when quoted they are as follows :-
O. 21, R. 5 ';When thepetitioner has been sentenced to a term of imprisonment, the petition shallstate whether the petitioner has surrendered. Unless the Court otherwise orders,the petition shall not be posted for hearing until the petitioner hassurrendered to his sentence'.
O. 21, R. 28 ';Pending thedisposal of any appeal under these Rules the Court may order that the executionof the sentence or order appealed against be stayed on such terms as the Courtmay think fit'.
72. Rule 5 is salutory rule in that the court will not hear a case in whichthe party is in contempt of the order of the subordinate court but that rule isin express words subject to the discretion given to this court under art. 136which states :-
'Notwithstanding anything in this Chapter theSupreme Court may, in its discretion, grant special leave to appeal.........'.
Rules made under art. 145 are subordinate legislation because they aresubject to any law made by Parliament and can be changed by the court with theapproval of the President. The change of an article, on the other hand, is tobe in accordance with the provisions of the Constitution and therefore merelybecause this Court has also the power under the rules to grant suspension of asentence and it has made rules that it will not entertain any petition forleave to appeal unless the petitioner surrenders himself to the sentence cannotoverride the provisions of art. 161; because if there is irresolvable conflictbetween the article and the rules must give way, being subordinate legislation.
73. It was argued that the power of the Court under articles 142 & 145and of the Governor under art. 161 are mutually inconsistent and therefore thepower of the Governor does not extend to the period the appeal is pending inthis Court because law does not contemplate that two authorities, i.e.,executive and judicial should operate in the same field and that it isnecessary that this court should put a harmonious construction on them. Article142 of the Constitution, it was contended, is couched in language of the widestamplitude and comprises powers of suspension of sentences etc. The argumentthat the power of the executive to suspend the sentence under art. 161 and ofthe judiciary to suspend the sentence under art. 142 and art. 145 are inconflict ignores the nature of the two powers. No doubt the effect of both isthe same but they do not operate in the same field; the two authorities do notact on the same principles and in exercising their powers they do not take thesame matters into consideration. The executive exercises the power inderogation of the judicial power. The executive power to pardon includingreprieve, suspend or respite a sentence is the exercise of a sovereign orgovernmental power which is inherent in the State power. It is a power ofclemency, of mercy, of grace 'benign prerogative' of the highestofficer of the State and may be based on policy. It is to be exercised on theground that public good will be as well or better promoted by suspension as bythe execution but it is not judicial process. The exercise of this power liesin the absolute and uncontrolled discretion of the authority in whom it isvested.
74. The power of the courts to suspend sentences is to be exercised onjudicial considerations. At Common Law, it was held in Ex parte U.S. 61 L.Ed129 at p. 141 courts possessed and asserted the right to exert judicialdiscretion in the enforcement of the law to temporarily suspend either theimposition of sentence or its execution when imposed to the end that pardonmight be procured or that the violation of law in other respects might beprevented. It was also held that a Federal District Court exceeds power by orderingthat execution of a sentence imposed by it upon a plea of guilty be suspendedindefinitely during good behaviour upon considerations wholly extraneous to thelegality of the conviction : Ex parte U.S. 61 L.Ed 129 at p. 141)
Marshall, C.J., in U. S. v.George Wilson 8 L.Ed 640 stated as follows :-
'............... It is aconstituent part of the judicial system that the judge sees only with judicialeyes, and knows nothing respecting any particular case, of which he is notinformed judicially'.
75. In Ex parte Grossman 69 L.Ed 527, 530, 532, 535, it was said thatadministration of justice by the courts is not necessarily or always wise orconsiderate of circumstances which may mitigate a guilt and in order to remedythis it was thought necessary to vest this in some other authority than thecourt to ameliorate or avoid particular criminal judgments. The exercise ofthis power has the effect of destroying the deterrent effect of judicialpunishment. The extent of the two powers, judicial and executive and thedifference between two has been pointed out in United States v. Benz 75 L.Ed354 in which it was held that no usurpation of the pardoning power of theexecutive is involved in the action of a court in reducing punishment after theprisoner had served a part of the imprisonment originally imposed. At page 358the distinction was stated as follows :-
'The judicial power and the executive power oversentences are readily distinguishable. To render judgment is a judicialfunction. To carry the judgment into effect is an executive function. To cutshort a sentence by an act of clemency is an exercise of executive power whichabridges 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 andis a judicial act as the imposition of the sentence in the firstinstance'.
According to Willis 'Courts may exercise the power of suspendingsentence although this, like the pardoning power, partakes of the nature of anexecutive function; which shows that giving of suspensions of sentences is anexercise of executive power; Willis' Constitutional Law, p. 151. Clemency isthe function of the executive and it is the function of the courts to construea Statute and not to defeat it as construed.
76. The judicial power therefore is exercisable on judicial considerations.The courts would approach every question in regard to suspension with ajudicial eye. They are unable to look to anything which is outside the recordor the facts which are proved before them. It is not their sphere to take intoconsideration anything which is not strictly judicial. A court knows nothing ofa case except what is brought before it in accordance with the laws ofprocedure and evidence and consequently this is a power distinct from the powerof the executive which may act, taking into consideration extra-judicialmatters even on the ground that suspension, remission and commutation may bemore for public good and welfare than no interference. These are all matters ofpublic policy and matters which are not judicial and are within the power ofthe executive and therefore it cannot be said that the two powers operate inthe same field. No doubt they may have the same effect but they operate indistinct fields, on different principles taking wholly irreconcilable factorsinto consideration.
77. Taking the case of pardon it is important to note that pardon is grantedfor reasons other than innocence. A pardon, it has been said, 'affirms theverdict and disaffirms it not'. (28 Harvard Law review at p. 647 by SamuelWilliston).
78. Commutation of sentences is a power which is exercisable by theexecutive to ameliorate the rigours of the punishment by courts when deathsentences are imposed. It was not contended that the power of commutation isnot available to the executive after the sentence is passed and before anappeal is filed or pending the appellate proceedings. It has the same effect asreduction of a sentence by a court from death to one of imprisonment for lifeor transportation for life as it used to be. In England and in America it isexercised on the condition of acceptance by the convict but no such limitationis imposed on the power of the executive under the Indian law. But whereas thecourt will take into only the circumstances which would justify the exercise ofjudicial power it is open to the executive to act on other grounds and the actof the executive is not subject to review by the courts, the executive beingthe sole judge of sufficiency of facts and of the propriety of the action andno other branch has any control over executive action.
79. As to suspension of sentence again in s. 426 of the Criminal ProcedureCode it is expressly stated that an appellate court can suspend the sentencefor reasons to be stated; no such limitation is imposed on the executive unders. 401 of the code. The language of the two sections themselves shows the fieldin which the two powers operate although the effect may be the same. It isrelevant to consider in this connection the grounds on which a court acts inregard to offences punishable with death or imprisonment for life (s. 497 ofCr.P.C.) but no such restrictions impede executive action. Similarly when theSupreme Court acts under art. 142 it acts judicially and takes only those factsinto consideration which are sufficient in the judicial sense to justify theexercise of its power : so would be the case when the power is exercised underthe rules framed by the court. Thus it appears that the power of the executiveand of the judiciary to exercise the power under arts. 161 and 142 or under Sections 401 and 426 are different in nature and are exercised on differentconsiderations and even may have different effect.
80. Executive power exercised in regard to sentences passed by courts is inits very nature the exercise of constitutional authority which negatives theorders of the court. Every time it is exercised it conflicts with some order ofthe court whether it is a case of pardon or commutation of sentence or areprieve or suspension or respite. It is an interference with some action ofthe court which makes the power of the executive to that extent overriding. Itis for this reason that it has been said in American judgments, e.g., Ex parteGrossman 69 L.Ed 527, 530, 532, 535 that although the Constitution has madethe judiciary as independent of other branches as is practicable it is, asoften remarked, the weakest of the three. It must look for a continuity ofnecessary co-operation in the possible reluctance of either of the otherbranches to the force of public opinion. The action of the executive ininterfering with sentences passed by courts is a matter which is not within theamplitude of the judicial power of the courts and whenever any action is takenby the executive, unless it is illegal, it is not justiciable nor subject tolegislative control.
81. The power that this court exercises under Order 21, Rule 5 must alsodepend upon the decision of the question whether art. 145 can be used inderogation of the power given to the Governors under art. 161. As has beenstated above, being subordinate legislation, it must in reality be subordinateto the provisions of the Constitution which is obvious from the fact that anyrevision of the articles of the Constitution will require the procedure laiddown in the Constitution for its amendment whereas the rules made under theConstitution can be changed by the court itself with the approval of thePresident or by a Parliamentary enactment.
82. The language of art. 161 is of the widest amplitude and applies of thevarious forms of clemency mentioned therein. It does not denied that the powerof pardon is not affected by art. 142 and this power includes the power toreprieve. It would be an undue construction of the exercise of the power ofpardon to take out from its purview that portion of it which is termed reprieveor stay of execution or suspension and respite of sentence which differs fromsuspension of sentences only in terminology. The construction suggested wouldbe illogical because the plenitude if the language would remain unaffectedbefore the petition for leave to appeal is filed and after the decision of theappeal but the power would remain suspended during the pendency of the appealproceedings even though the power of pardon and of commutation remains intactand 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 thepower is similar as in India. Even on the analogy of the Privy Council caseBalmukand v. King Emperor 42 I.A. 133 where reprieve was granted pending thehearing of the special leave petition, i.e., upto the date the petition wastaken up, heard and decided and therefore uptil that date the reprieve wasnecessary and proper. In Rogers v. Peck 50 L.Ed 256 reprieve was granted fora period of time extending beyond the hearing of the appeal proceedings.
83. If the argument as to want of the power of suspension during the periodof pendency of an appeal is sustainable then the power to commute must equallybe so affected because what is commutation when exercised by the executive iscalled reduction of sentence when ordered by the court. The two are neitherdifferent in nature nor in effect.
84. Reference was made to s. 295 of the Government of India Act of 1935whereby the prerogative of the King and of the Governor General as his delegatewas specifically saved. Reference was also made to s. 209(3) of that Act whichgave to the Federal Court the power of stay in any case; the argument beingthat the prerogative power of the King and his delegate the Governor Generalwould not be unlimited but for its being expressly saved by s. 295(2). A closeexamination of these provisions and that application of rules of interpretationdo not support the soundness of this argument.
85. Section 209(3) is in Part IX The Judicature and Chapter I the FederalCourt. It gave power to the Federal Court to stay executions in any case underappeal as follows :
S. 209(3) 'The Federal Court may, subject to suchterms or conditions as it may think fir to impose, order a stay of execution inany case under appeal to the Court, pending the hearing of the appeal, andexecution shall be stayed accordingly'.
Section 295 is in Part XII Miscellaneous and under sub-head Provisions as tolegal matters. Section 295 provided :-
S. 295(1) 'Where any personhas been sentenced to death in a Province, the Governor General in hisdiscretion shall have all such powers of suspension, remission or commutationof sentence as were vested in the Governor General in Council immediatelybefore the commencement of Part III of this Act, but save as aforesaid noauthority in India outside a Province shall have any power to suspend, remit orcommute the sentence of any person convicted in the Province :
Provided that nothing in thissub-section affects any power of any officer of His Majesty's forces tosuspend, remit or commute a sentence passed by a court martial.
(2) Nothing in this Act shallderogate from there right of His Majesty, or of the Governor General, if anysuch right is delegated to him by His Majesty, to grant pardons, reprieves,respites or remissions of punishment'.
86. Stay of execution is a term appropriate to civil proceedings as O. 21,Rules 26 & 29 and O. 41, r. 5 of the Code of Civil Procedure would show buteven if it applied to criminal proceedings it would be of little assistance inunderstanding the meaning of art. 142(1) in any different manner from what hasbeen said above. But s. 295(2) is pressed into service to show that whereverthe power of the executive is intended to be overriding it is specifically sostated. So construed the power exercisable by the Governor General in hisdiscretion and of the Governor will be of lesser amplitude and subject to thelimitation of s. 209(3), whereas the power of the King or the Governor Generalacting under S. 295(2) will not be so which is seemingly incongruous. Besidesthe words 'nothing in this Act shall derogate' in s. 295(2) onlyemphasise the constitutional position of the King's prerogative and of hisdelegate and was more in the nature of ex abundanti cautela' because underconstitutional practice 'Roy n'est lie par ascun statute, si il ne soitexpressement nosme' is a principle which has been accepted in this courtqua 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 ofan Act if be not named therein'; Broom's Maxims, p. 39 (1939 ed.);Province of Bombay v. Municipal Corporation of the City of Bombay 73 I.A.271, where it was held that Crown is not bound unless expressly named or isbound by 'necessary implication'.
87. If the argument of limitation of the King's prerogative because of thesesaving words is sound then it means in the Constitution Act the BritishParliament did contemplate and provide that the power of the King or of theGovernor General as his delegate as to suspensions, remissions or commutationwould be overriding and exercisable in spite of the pendency of an appeal inthe Federal Court.
88. There are seven reasons for denying the argument of conflict betweenarts. 142 and 161 :-
(1) As has been discussed above,the two articles operate in two distinct fields where different considerationsfor taking action apply; That is how the two articles are reconcilable andshould be reconciled. This interpretation accords with the rule of statutoryco-existence stated in text books on Interpretation of Statutes, which is asfollows :-
It is sometimes found that theconflict of two Statutes is apparent only, as third objects are different andthe language of each is restricted to its own object or subject. When theirlanguage is so confined, they run in parallel lines without meeting'.(Maxwell on Interpretation of Statutes (1953) Ed., p. 170.
(2) The proper rule ofconstruction of Statutes was laid down in Warburton v. Loveland 5 E.R. 499 :
'No rule of construction canrequire that when the words of a Statute convey a clear meaning ........... itshall be necessary to introduce another part of the Statute, which speaks withless perspicuity, and of which the words may be capable of such construction asby possibility to diminish the efficacy of the other provisions of theAct'.
89. This rule was accepted in regard to the interpretation of Sections 89, 92 and93 of the Australian Constitution in the State of Tasmania v. Commonwealth ofAustralia 1 C.L.R. 329 :
'Applying those expressionsto these sections I should say they amount to this; Seeing that section 89 hasan absolutely clear meaning, the rules of construction do not require us tointroduce another part of the Statute which speaks with less perspicuity, andto apply that part to the construction of section 89. That would have theeffect of diminishing the clearness of section 89 and appears to me to be anabsolute inversion of the rule which is applicable in such a case'.
In the instant case the words ofart. 161 are clear and unambiguous. It is an unsound construction to put afetter on the plenitude of the powers given in that article by reading anearlier article which deals with the powers of a different department ofGovernment and uses language 'which speaks with less perspicuity'.
(3) Moreover it is a relevantconsideration in the matter of interpretation that the two articles are in twodifferent parts. There is ample authority for the view that one is entitled tohave regard to the indicia afforded by the arrangement of sections and fromother indication; Dormer v. New Castleupon-Tyne Corporation  2 K.B. 204 per Slesser, L.J. The arrangement of sections into parts and theirheadings are substantive parts of the Act and as is pointed out by Craies onStatute Law (5th Ed.), p. 165, 'they are gradually winning recognition asa kind of preamble to the enactments which they precede limiting or explainingtheir operation'. They may be looked to as a better key to constructionthan a mere preamble. Ibid p. 195.
90. In Inglis v. Robertson  A.C. 616 which turned on themeaning of the Factors Act, Lord Herschell said :-
'These headings are not in my opinion mere marginalnotes but the sections in the group to which they belong must be read inconnection with them and interpreted in the light of them'.
91. Viscount Simon, L.C., said in Nokes v. Doncaster Amalgamated CollieriesLtd.  A.C. 1114 :-
'Moreover, section 154 contemplates - or, at anyrate, provides for - the dissolution of the transferor company when thetransfer of its undertaking has been made, and there appears to be no means ofcalling back to life the company so dissolved for section 294 occurs in Part Vof the Companies Act, 1929, dealing with winding up, whereas section 154 isfound in Part IV'.
These cases place accent on theprinciple that the articles 142(1) and 161 deal with different subjects showingoperation in separate fields and were not intended to overlap so as to berestrictive of each other.
(4) The language of art. 161 isgeneral, i.e., the power extends equally to all class of pardons known to thelaw whatever the nomenclature used; Ex parte Wells 15 L.Ed 421, 424 andtherefore if the power to pardon is absolute and exercisable at any time onprinciples which are quite different from the principles on which judicialpower is exercised then restrictions on the exercise of the lesser power ofsuspension for a period during which the appeal is pending in this court wouldbe an unjustifiable limitation on the power of the executive. It could not havebeen the intention of the framers that the amplitude of executive power shouldbe restricted as to become suspended for the period of pendency of an appeal inthe Supreme Court.
(5) If this interpretation isadopted it would lead to this rather incongruous result that if the appeal ispending in a Court of Session or the High Court the power of the executive willbe abundant, overriding and operative during the pendency of appeals but willbe restrictive when appeal is brought in the Supreme Court.
(6) Article 161 is a laterprovision and when it was adopted the Constitution makers had already adoptedart. 72 and arts. 142(1) and 145. It does not seem reasonable that by sojuxtaposing the articles if was the intention of the framers to constrict thepower of the executive. The rules of interpretation on this point have thusbeen stated :
(a) It is presumed thatlegislature does not deprive the State of its prerogative powers unless itexpresses its intention to do so in express terms or by necessary implication.Province of Bombay v. Municipal Corporation of the City of Bombay 73 I.A.271; Director of Rationing & Distribution v. Corporation of Calcutta(Criminal Appeal No. 158 of 1956).
(b) It seems impossible to supposethat so material a change in the constitutional powers of the Governor wasintended to be effected by a side wind.
(c) The law will not allowalteration of a Statute by construction when the words may be capable of properoperation without it; Kutner v. Philips  2 Q.B. 267
(d) It cannot be assumed thatthe Constitution has given with one hand what it has taken away with another;Dormer v. New Castle-upon-Tyne Corporation  2 K.B. 204
(e) If two sections arerepugnant, the known rule is that the last must prevail : Wood v. Riley(1867-8) 3 C.P. 26 per Keating, J.
(7) The power given to theGovernor in regard to pardons is a specific power specially conferred as wasvested in the colonial and British Governors in Indian provinces during Britishdays. The power given to the court under Art. 142(1) is a general powerexercisable for doing complete justice in any cause or matter. If they, i.e.,arts. 161 and 142(1) deal with the same subject matter as is contended then art.161 must prevail over art. 142(1) which is in accord with the constitutionalposition as above discussed.
In the circumstances of this case I would grant the petitioner exemptionprayed for and proceed to hear the special leave petition on merits.
92. BY COURT : In view of the majority Judgment, the petition is dismissed.
93. Petition dismissed.