Govinda Menon, J.
1. When these referred trials came up for hearing on 19th inst. the Public Prosecutor, Andhra, informed the court that he has been instructed to state that all the condemned prisoners, whose trials have been referred for the confirmation of sentences by the High Court, have been released as a result of a general amnesty granted by the Government of Andhra and therefore he submitted that, the referred trials cannot be proceeded with. The question then arose as to whether the release of the condemned prisoners, pending the confirmation of their sentences by this court, does, or does not amount to an act of interference with the due and proper course of justice in that in cases pending before this court, the Government have, by their action, prevented the proper disposal of these cases.
Under these circumstances, we requested the Advocate Genera], Andhra, to appear before us on 22-1-1954 and explain & clarify to us the situation created by the order of general amnesty. Accordingly the learned Advocate General has placed before us the implications of the order of amnesty & submitted that no further action is called for in the circumstances. We therefore propose to discuss and express our opinion relating to the merits of the Advocate General's argument.
2. Paragraph 1 of G. O. Ms. No. 25 Law (Prisons) Department dated 12-1-1954 is to the following effect:
'The Government have considered the question of granting general amnesty to all prisoners in the Jails, in this state and under the control of this Government and also the Andhra prisoners in the jails and Institutions in the Mysore and Madras States meant for the reception of prisoners etc., of this state to celebrate the inauguration or the Andhra State and direct,
(i) that all prisoners including women convicted for crimes committed in Andhra area and now in jails both in Andhra and also in the jails meant for the reception of Andhra prisoners in Mysore, viz., the Central Jail, Bellary and the Alipuram Jail, Bellary, and in the Madras State, viz., the Presidency Jail for Women, Vellore, should be released. All condemned prisoners also are to be released including those in respect of whom referred trials or petitions for mercy are pending.
(ii) that all prisoners in sub-jails in all districts should be released.
(iii) that all Andhra inmates of Borstal schools and certified schools, viz., senior Certified School, Chingleput in the Junior Certified School, Bellary, and the Borstal School, Bellary, should be released.'
This order purports to have been issued by the Secretary to the Government of Andhra, by order of the Governor of Andhra, and therefore should be deemed to be in the exercise of the powers conferred on Governor of Andhra under Article 161 and Section 401, Crl. P. C. In the Chambers Twentieth Century Dictionary, the following is the meaning given for the word 'amnesty': 'A general pardon of political prisoners; an act of oblivion'. As understood in common parlance, the word 'amnesty' is appropriate only where political prisoners are released and not in cases where those who have committed felonies and murders are pardoned. But it is clear from the G. O. above-mentioned that the intention of the Government is to pardon not only political prisoners but those convicted and sentenced to the extreme penalty of the law as well as for various terms of imprisonment for non-political crimes involving moral turpitude. However that be, we are not concerned with the impropriety of the term used. The fact remains that the intention was to release the prisoners convicted and sentenced to death, transportation for life or other terms of imprisonment.
3. Chapter 27 of the Criminal Procedure Code containing Sections 374 to 380 relates to the submission of sentences for confirmation and the fasciculus of sections contained therein deal with the procedure to be followed when a Sessions Judge finds a man guilty of an offence punishable with the sentence of death and passes such sentence. After convicting a man of an offence punishable with death and sentencing him to the extreme penalty of the law, the Sessions judge submits the proceedings to the High Court for confirmation. Section 375 deals with the powers of the High Court to direct further enquiry to be made or additional evidence to be taken. Section 376 deals with the powers of the High Court to confirm sentence or annul conviction. Sections 377 to 380 deal with matters which are not very germane for the present purpose. The present Section 374 has its forbear in Section 380 of Act 25 of 1861 in which the relevant portion is to the following effect :
'......... .If the accused person is convicted, the court shall proceed to pass sentence upon him according to law, provided that if the court passes sentence of death, the sentence shall not be executed without the confirmation of the Sudder court.'
In the Code of 1872, paragraph 4 of Section 263 related to this aspect and in the Criminal Procedure Code which preceded the one with which we are now concerned in 1882, Section 374 contained the same principle. On a consideration of the development of the phraseology of this section from 1872 to 1898, we are not able to find any material change in the concept.
What the learned Advocate General contends is that when a Sessions Court after finding a person guilty, passes a sentence according to law, the statutory provision under which it is done is Section 309, Clause (3) and when the submission is made to the High Court under Section 374, it is as a result of the exercise of power conferred under Section 309, clause (3). The power of the High Court to confirm the sentence or annul conviction, etc., is contained in Section 376 which has to be read as a complementary to Section 374. If these sections are read together, the argument is put forward, that the reference for confirmation is intended as a safeguard against an illegal execution if a person sentenced to death is executed before his appeal is disposed of and it so turns out that in the appeal he is acquitted; because apart from Section 374, under Section 410 an accused person convicted by a Sessions Judge is entitled to prefer an appeal to the High Court and if pending that appeal the condemned person is executed but at the time of hearing it is found he is not guilty, then grave and irreparable injustice would have been done. It is on account of that that the legislature has provided the machinery of a reference to the High Court for confirmation.
In these circumstances, the reference for confirmation is not a continuation of the proceedings in the court of session but is only, as stated already, a safeguard against the perpetration of any injustice. The conviction and sentence have already taken place and what is contemplated by Chapter 27 is either the approval or disapproval of the High Court, regarding the conviction and sentence. If that is the real situation, the learned Advocate General argues there is nothing illegal in the Government exercising the powers conferred under Article 161 or Section 401, Criminal P. C. The learned Advocate General conceded that even after the release of the condemned prisoner, the power of the High Court to go into the validity of the conviction and sentence still remains and therefore it is open to us to and out whether the man has been properly convicted or not. Had this position been clarified by the Public Prosecutor at the very outset, probably it might have been unnecessary to go into the question elaborately. But as the matter has been fully discussed, we have decided to express our opinion.
4. It is no doubt true that Section 374, Criminal P. C., begins by saying that when the court of session passes sentence of death, the proceedings shall be submitted to the High Court. From this phraseology it is possible to conclude that a sentence has been passed by the Sessions Judge and if that is so, then, when there is a sentence, it is open to the appropriate authority to apply the power conferred under Article 161 of the Constitution or Section 401, Criminal P. C.
But when the section says that the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court, it seems to us that though there is a sentence it has not become final and effective unless the High Court confirms it and the submission of the proceedings would indicate that the venue of the entire proceedings is transferred from the Sessions Court to the High Court. If that is a correct interpretation, then the entire case is before the High Court for its final expression of opinion and the decisions have held that the High Court has to satisfy itself on the evidence, if the confirmation is to take place that the offence has been brought home to the convicted person beyond any reasonable doubt. In sucn cases it is not as if the power of the High Court is limited to finding out whether the judgment of the learned Sessions Judge convicting the accused person is correct on the evidence.
But what the High Court has to find is whether on the evidence, the guilt has been brought home beyond any reasonable doubt. The distinction between the power of the High Court in matters of a reference under Section 374 and in exercising the powers in appeal under Section 423, Criminal P. C. and those exercised in civil matters under Order XLI, Civil P. C. are substantial and real. Whereas in a civil appeal the court has to be satisfied, before it reverses the decree of a trial court, that the judgment is wrong, in the matter of a criminal appeal, the approach is quite different viz., that on the materials the court has to be satisfied, apart from the judgment, that the guilt has been brought home to the accused. If this is the correct view, it seems to us that when the proceedings are submitted to the High Court, the entire case is open and there is no final sentence imposed upon an accused person. On that basis there is no finality attached to the conviction and sentence passed by the Sessions court. Therefore the proper stage at which pardons and reprieves have to be granted should ordinarily be after the High Court confirms the sentence passed by the Sessions Judge.
But it is unnecessary in this case to define clearly the nature of the transferred proceedings to the High Court and its finality because, according to the alternative argument of the learned Advocate General, assuming that the entire proceedings are transferred and there is no finality attached, still the powers under Section 401, Criminal P. C. and Article 161 of the Constitution can be exercised by the appropriate authority even in cases where no conviction has taken place. It is urged that the power to remit a sentence in whole or in part under Article 101 is in essence an executive function and not judicial and therefore by the resort to such a power neither the conviction nor the sentence is set aside but the accused person is only set at liberty. Such being the case there is no interference with the power of the court and therefore the court still has got the power to enquire into the validity of the conviction or sentence.
5. Section 401, Criminal P. C. has been enacted at a time when the right of reprieve, mercy or pardon, had been vested in the British Crown, and the Governor General or the Governor exercised those functions as a delegate from the Sovereign in Great Britain. Therefore, if in England and Scotland the Sovereign can exercise the prerogative of mercy, reprieve or pardon, even before there is a final decision on the guilt or innocence of an accused person, then it follows that the same power can be exercised by the Governor General or Governor. In Halsbury's Laws of England, Hailsham Edn., Vol. 6, page 477, in discussing the Royal prerogative of pardons and reprieves, it is stated as follows :
'Pardon may, in general be granted either before or after conviction'.
The authority for this statement is contained in -- '3 Co. Inst. 233' and in -- 'B. v. Boyes', (1861) 1 B & S 311 (A). it has been held that the power can be exercised even before conviction. Cockburn C. J. ' though he confirmed such power, animadverted upon the grant of such pardon before a final decision is arrived at by the court. In any event it is clear that when a person has committed an offence and is standing a trial it is open to the Crown in England to exercise the prerogative and grant a pardon.
6. As our country is now a Sovereign Republic, a parallel from the prerogative exercised by a constituted monarch in England may not be very apposite, since we have a written constitution to interpret. In many respects the power of pardon and reprieves conferred under the Indian Constitution by Article 72 on the President, and Article 161 on the Governor of a State, is very similar to the power of the President of the United States of America in granting pardons and reprieves. The wording of the corresponding articles is also similar and such being the case, decisions of the United States Supreme Court are useful in the decision of this point. Article II, Section 2 of the Constitution of the United States defines the President's powers in such matters, and that of the section dealing with the grant of reprieves and pardons reads as follows:
'........and he shall have power to Grant Reprieves and Pardons for Offences against the United states, except in cases of Impeachment.'
Article 72, Clause (i) of our Constitution is in the following terms:
'The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offences.'
Article 161 of our Constitution says:
'The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentences of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.'
A comparison of the language of these Articles with Section 2 of Article II of the United States Constitution will show the similarity between them. If therefore it can be gathered that the President of the United States can grant a pardon before a conviction, it stands to reason that the appropriate authority in India exercising powers under provisions similarly worded must have that power. We therefore propose to refer to the authorities in the United States of America.
7. In the Handbook of American Constitution law, by Rottachaefer, 1939 Edn., the pardon power of the President is discussed in Section 202 at Pages 404 and 405. In discussing that the learned author at page 405 states the following :
'The pardon power includes not only that of granting absolute and unconditional pardons, but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either or after conviction.'
8. The subject of pardon was considered by Marshall C. J. in the case reported in the 'United States v. Wilson', (1863) 8 Law Ed 640 (B), and the learned Chief Justice traces its history in the Royal prerogative of the Sovereign in Great Britain and states that the United States has adopted the same privileges when Article II, Section 2 of their Constitution invests the President with such power. The learned Chief Justice has laid down that the power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a court of law inquiring into the offence. At pages 643 and 644, we have the following observation:
'The Constitution gives to the President, in general terms 'the power to grant reprieves and pardons for offences against the united States. As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.
A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempt the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is' intended, and not communicated officially to the court. It is a constituent part of the judicial system that the Judge sees only with Judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially.
A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the Judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary case, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.'
The above judgment of Marshall C. J. was followed in a later case reported in -- 'Ex parte Wells' (1856) 15 Law Ed 421 (C)', by Wayne J. where the learned Judge examined the historical concept of the power of pardon and states that at the time the United States separated from Great Britain, they took with them the various forms as may be found in English Law Books and used them to suit the conditions in America. In that judgment, the learned Judge adverted to the judgment of Marshall C. J, and also referred to what Lord Coke had stated in '3 Co. Inst. 233' that pardon is a work of mercy whereby the King, either before attainder, sentence or conviction, or after forgive the any crime, offence, punishment, execution, right, title, debt or duty, temporal or ecclesiastical. The general observations here show that it is usual to tender pardon as an executive act by the chief executive authority even before conviction. The other, questions raised in these cases, viz, what would be the effect of pardon, need not be considered in detail in the present context of things before us.
9. Further light is thrown on the above subject in the case reported in -- 'Ex parte A. H. Garland' (1873) 18 Law Ed 366 (D). Field J. in delivering the opinion of the Court, after reviewing the facts and circumstances which arose for consideration in that case, makes the following general observation:
'The Constitution provides that the President 'shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment'. The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.
This power of the President is not subject to legislative control, congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur.
A pardon reaches both the punishment prescribed for the offence & the guilt of the offender; and when the pardon is full, it releases the punishment & bolts out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.'
On this aspect, even the minority dissentients in that case are in agreement with the majority view.
10. That a pardon should be accepted by the person to whom it is tendered and then only it would become effective has been laid clown By the Supreme Court of the United States in --'Burdiek v. United States', (1914) 59 Law Ed .476 (E). Mckenna J. delivered the opinion of the court and it has been held that the tender of a pardon from the President does not destroy the privilege of a witness against self-crimination, but he may reject the pardon and refuse to testify on the ground that his testimony may have an incriminating effect. The learned Judge has referred to the earlier cases regarding the nature of pardon and its historical original. Except as laying down general propositions this case is not of much help in elucidating the point that has now arisen.
11. A most illuminating exposition of the law relating to the exercise of the power of pardon by the President of the United States is contained in the judgment of Taft c. J. in -- 'Ex parte Grossman, (1924) 69 Law Ed 527 (F)', where the learned Chief Justice has expressed the opinion that the pardoning power of the President under the United. States Constitution extends even to criminal contempts of court. The argument of Attorney General Stone (Later a Chief justice of U. S. A.) at page 529 can be referred to with profit. This decision shows to what extensive limit the power of pardon has been applied in the sense that even if a person is guilty of criminal contempt of court, still it is open to the President to pardon him and relieve him of the consequence of punishment imposed for the crime committed by him. The learned Chief Justice considered the earlier cases of the United States Supreme Court as well as the historical derivation of the power of pardon. The discussion at page 532 of the report, column 1, may be usefully quoted in this connection:
'With this authoritative background of the common law and English history before the American Revolution to show that criminal contempts were within the understood scope of the pardoning power of the Executive, we came now to the history of the clause in the Constitutional Convention of 1787. The proceedings of the convention from June 19, 1737 to July 23rd were by resolution referred to a Committee on detail for report of the Constitution (2 Ferrand's Records of Constitutional Convention, 128, 129) and contained the following (2 Ferrand, 146) 'The power of pardoning vested in the Executive (which) his pardon shall not, however, be pleadable to an impeachment'.
On August 6th, Mr. Rutledge of the Committee on detail (2 Ferrand, 185) reported the provision as follows: 'He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of impeachment.' This is exactly what the King's pardon was at common law with the same limitation. 4 Bl. Com. 399.
On August 25th (2 Ferrand, 411), the words 'except in cases of impeachment' were added after 'pardons' and the succeeding words were stricken out. On Saturday, September 8th (2 Ferrand, 547) a Committee of five to revise the style of & arrange the articles was agreed to by the House. As referred to the committee on style, the clause read (2 Ferrand, 573): 'He shall have power to grant reprieves and pardons except in cases of impeachment.' The Committee on style reported this clause as it now is: 'and he shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment.' There seems to have been no discussion over the substance of the clause except that a motion to except cases of treason was referred to the committee on style, September 10th (2 Ferrand, 564), was not approved by the committee and after discussion was defeated in the Convention September 15th (2nd Ferrand, 626, 627).'
That in tendering pardon the power exercised is executive has been very clearly defined by the learned Chief Justice at pages 534 and 535. Towards the close of page 535, there are observations which show that in tendering pardon, the executive authority would act reasonably in order to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The learned Chief Justice did not view with equanimity the case of a President willing to paralyse Courts by pardoning all criminal contempts as well as a President ordering a general Jail delivery as has been done by the Government of Andhra in the present cases.
12. The above resume regarding the effect of the leading decisions of the United States Supreme Court interpreting Section 2 of Article II would therefore clearly show that in Republican countries like ours, where under a written Constitution the Head of the State is given authority by means of an executive act to tender pardons and reprieves, those functions can be exercised even before conviction.
That the practice in monarchical England is the game is clear from Coke's reports and what has been stated in Halsbury's Laws of England. Are we therefore compelled to hold that the same power cannot be exercised by the President or Governor under our Constitution without any specific provision to that effect? in our judgment the framers of our Constitution having before them the earlier precedent and practice in India when governed by the British Sovereign as well as what obtained in monarchical Great Britain and in the Republican United States, intended to vest in the President, or the Governor, the same power of pardon or reprieve, etc., as has been understood to inhere in the English sovereign or statutorily invested in United States' President. Such being the case, we are of opinion that there has been no interference with the even course of a judicial proceeding pending in this court by the General amnesty granted by the Government of Andhra.
13. The learned Advocate General has not been able to cite before us any authority from any part of the World where such a general Jail delivery has been ordered when a new State comes into existence, or any occasion of rejoicing. How far a general jail delivery is wise, justified or expedient in circumstances prevailing in the country is a matter perfectly within the discretion and decision of the executive authorities, and need not be discussed, or decided, by courts of law whose functions are entirely judicial. We therefore refrain from expressing any opinion on its wisdom or expediency. Having regard to what we have discussed above and in view of the concession made by the learned Advocate General of Andhra that if any of the accused, or their counsel, want the Referred Trials to be decided on the merits, this court is not precluded from doing so, we are of opinion that nothing more need be done.
Chandra Reddi, J.
14. The question that presents itself in this enquiry is whether the general amnesty declared by the Government of Andhra resulting in the release of even persons condemned to death the confirmation of whose sentences are pending in this court would amount to interference with the due course of Justice. The facts giving rise to this question are these : When R.T. Nos. 126, 136 and 140 of 1953 came up for hearing, the Public Prosecutor, Andhra Slate represented that they could not be proceeded with as the prisoners were all released in pursuance of the amnesty and that he had instructions from the Government of the Andhra State to state so.
15. The Advocate General for the Andhra State appeared in support of the action and clarified the position as having a bearing on the hearing of these cases. The order of the concerned Government which has necessitated this enquiry is in the following words:
This order, G. O. Ms. No. 26 Law (prisons) Department, dated 12-1-1854 was issued in the name of the Governor of the Andhra State. Although the pro-visions of law under which this order was issued are not mentioned, it may be taken that it was under Section 401, Crl. P. C. and Article 161 of the Constitution of India, It is not within our province to consider whether the use of the expression 'amnesty' is appropriate in the context. Section) 401, Crl. P. C. (of 1898) as it stands today after the adoption of laws runs thus:
'(1) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.'
It is not necessary to refer to the other provisions of this section as they do not bear upon the present enquiry. It may be noted that the power to suspend or remit sentences was conferred upon the Governor General in Council or the Provincial Government when the Criminal Procedure Code of 1861 (Act 25 of 1861) was first enacted. This provision was continued in the subsequent enactments. The only difference between the earliest enactment and the present one as regards this power is that in the section as it stands today the expression 'the Governor General in Council' is omitted and the expression 'appropriate Government' has been substituted for 'Provincial or Local Government' and in other respects they are 'part materia'.
Originally the power to grant pardons seems to have been conferred upon the Governor General in Council and the head of the local Government as delegates to His Majesty the King, in England it was the prerogative or His Majesty the King to grant parsons and reprieves. He has been exercising this power from time immemorial and the paraon or reprieves is usually granted on the advice of the Home Secretary. The prerogative of the grant of pardon which is part of the British jurisprudence has been adopted in India along with the principles respecting its operation and effect.
16. It is to be noted that the power under Section 401, Crl. P. C., is limited to suspension, remittance and commutation of sentences and if the law has stood thus it might have become necessary for us to consider whether the transmission of proceedings to a High Court after the Court of sessions passed a sentence of death for the confirmation would amount to transference of all proceedings and therefore a continuance of the proceeding in the Court of Session or whether the postponement of the execution of death sentence till the confirmation of the conviction and sentence by the High Court has the safeguard of the life and liberty of the subject.
But it is unnecessary to launch upon an enquiry in regard to that matter, in view of the provisions of Article 161 of our Constitution which vests in the Governor of a State the power to 'grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offenee against any law relating to a matter to which the executive power of the State extends'.
A similar provision is enacted in Article 72 of the Constitution authorising the President of the Indian Republic 'to grant pardons, reprieves, respites or remissions or punishment or to suspend, remit, or commute the sentence of any person convicted of any offence etc.' Thus it is manifest that the wording of these two Articles is more comprehensive than that of Section 401, Crl. P. C. Under the Constitution larger powers are vested in the President and the Governor.
17. The powers of the President of the Indian Republic under Article 72 and the Governor under Article 161 of our Constitution bear a close resemblance to those exercised by the President of the United States of America under Article II, Section 2 of the Constitution of the United States. It is Article II, sec. 2 of the Constitution of the United States that defines the powers of the President in that behalf and it runs thus;
'and he shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment.'
It is seen that the power to grant pardons and reprieves conferred under our Constitution is similar to the one contained in the relevant provisions of the Constitution of the United, States.
18. In view of the similarity of the language between the two Constitutions as regards this power, Articles 72 and 161 of our Constitution can be interpreted in the light of the rulings of the Supreme Court of the United States as regards the extent of and the occasion for the exercise of this power. It is useful therefore to refer to a few of the decisions of the Supreme Court of the United States of America.
19. The earliest case which has been brought to our notice is -- '(1863) 8 Law Ed 640 (B)'. The judgment of Marshall C. J. tracing the growth contains very useful information on this topic. The relevant passage that throws considerable light on the nature of this prerogative occurs at page 643 :
'As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt, their principles respecting the operation and effect of a pardon, and look into their books for their rules prescribing the manner in which it is to be used by the person who would avail himself of it;
A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.'
The same subject is also dealt with in 'Ex parte Wells (1856) 15 Law Ed 421 (C)' by Mayne J. In the opinion of the learned Judge the word 'pardon' must be given the same meaning as prevailed in England at the time it found a place in the Constitution and he refers with approval to the statement of law of Lord Coke,
'A pardon is said to be a work of mercy, whereby the King, either before attainder, sentence or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt or duty, temporal or ecclesiastical. And the King's coronation oath is, that he will cause justice to be executed in mercy'.'
It is also laid down by the learned Judge that the President can grant a conditional pardon.
20. The power of the President of the United States to grant pardons and reprieves is also considered in -- '(1373) 18 Law Ed 366 (D)'. The position in that regard is summed up thus in the judgment of Field J.:
'The power thus conferred is unlimited with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency or after conviction and judgment.'
The effect of such a pardon is set out in the same judgment in the following words:
'A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.'
21. '(1914) 59 Law Ed 476 (E)' also throws some light on this matter. I need not refer to the principles laid down therein as they do not carry us any further. In -- 'United States v. Bena', (1930) 75 Law Ed 334 (G), in dealing with the point whether a Court has got power to amend a sentence of imprisonment during the term of court in which it was imposed, by shortening it and whether such course would trench upon the pardoning power of the President it was remarked by Sutherland J. that the judicial power and the executive power in respect of sentences are easily distinguishable, that while giving Judgment is a judicial function, carrying that into effect is an executive function and that remitting a sentence by way of clemency is an executive power which 'abridges the enforcement of the judgment but does not alter it qua judgment.'
22. I think the discussion on this subject will not be complete without reference to the instructive judgment of Taft C. J. in '(1924) 69 Law Ed 627 (P)'. There the question arose whether the President in exercise of the powers under Article II, Section 2 of the Constitution of the United states could grant pardon to offenders guilty of contempt of court. The argument pressed upon the court in that case was that the Executive could not grant pardon for criminal contempt since the pardon would affect not only the contemner but the integrity of the court, as well.
This contention did not find favour with the learned Judge and he held that the power of the president to grant pardons and reprieves extended to criminal contempts of courts as well. The learned Judge had considered that question from all the aspects and had also expatiated upon the implications of the exercise of such power by the President and its effect upon the separation of the powers under the American Constitution on which the distribution of powers under our Constitution is largely based.
That judgment contains an elaborate discussion regarding the origin and growth of the power to grant pardons, the extent and nature of it, the interdependence of the three branches of the Government namely the Legislature, the Executive and the Judiciary, and how checks and counter-checks are provided under the Constitution on these three departments. The Power of the executive in respect of this question is defined thus:
'The Executive can reprieve or pardon all offences after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.'
In this context I may usefully extract a few passages from the judgment of the learned Chief Justice bearing on the validity and the effectiveness of the President's action:
'Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts, power to ameliorate or avoid particular criminal judgments. It is a check intrusted to the Executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.
An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen, their effectiveness than a wholesale pardon of other offences. If we could conjure up in our minds a President willing to paralyse courts by pardoning all criminal contempts, why not a President ordering a general jail delivery? A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor's right.
The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offences. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning, confirmed by its common law origin and long years of practice and acquiescence.
If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighbourhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.'
The above passage applies with equal force to our Constitution.
23. I may now turn to the Hand Book of American Constitutional law by Rottachaefer, 1919 Edn.. pages 404 and 40J. This succinctly summarises the power of the President of the United States to grant pardons and reprieves thus:
'The pardon power includes not only that of granting absolute and unconditional pardons but also that of commuting a punishment to one of a different sort than that originally imposed upon a person. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either before or after conviction.'
The principles deducible from these authorities are that the pardon power is an executive function, that it extends to all offences, that it may be exercised immediately after the commission of the offence either before or after the trial, that it would not in any way alter the judgment qua judgment, that the exercise of such a right would not in any way interfere with the course of justice and that the courts are free to adjudicate upon the guilt or otherwise of the concerned persons. That the power to grant pardons is purely an executive function is also evident from the observation of the Judicial Committee in -- 'Balmukund v. King Emperor', AIR 1915 PC 29 (H):
'The tendering of advice to His Majesty as to the exercise of the prerogative of pardon is a matter for the Executive Government, and is outside their Lordships' province.'
It is also clear from these rulings that a person who is granted a pardon is not bound to accept it and can waive it in order to have his innocence vindicated. See '(1014) 59 Law Ed. 476 (E)'. It was conceded by the Advocate General, Andhra State that the exercise of the power of pardon would not preclude the courts from going into the merits of a case and expressing their opinion. As this power is traceable to Anglo-Saxon institutions, it is useful to see how this matter- is dealt with in England by English Courts.
24. In Halsbury's Laws of England by Lord Hailsham, 2nd Edn. at page 477, paragraph 579, it is stated that 'pardon may in general be granted either before or after conviction but no pardon is pleadable in bar of an impeachment by the Commons.' It is stated in paragraph 583, page 479, that
'the effect of a pardon under the Great Seal is to clear the person from all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man, so as to enable him to maintain an action against any person afterwards defaming him in respect of the offence for which he was convicted'.
In the footnote all the cases bearing on the subject have been collected but I do not propose to refer to any of them.
25. It follows from this discussion that the release of the prisoners condemned to death in exercise of powers conferred under Section 401, Crl. P. C. and Article 161 of the Constitution does not amount to interference with the due and proper course of justice as the power of this court to pronounce upon the validity, propriety and correctness of the conviction and sentence remains unaffected. In fact, this was conceded by the Advocate General, Andhra State, in the course of the arguments. In the result the hearing of the referred trials will proceed, if necessary.