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PETITIONER: K.M. NANAVATI

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 05/09/1960

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1961 AIR  112            1961 SCR  (1) 497  CITATOR INFO :  D          1963 SC 996  (14)  RF         1976 SC1750  (12)  D          1988 SC1531  (159)  RF         1989 SC 653  (12)  RF         1990 SC1480  (77)

ACT: Sentence, suspension of-Order by Governor during pendency of appeal  in  the  Supreme  Court-If  constitutionally  valid- Governor’s power of clemency-Court’s Power of granting  bail or suspending sentence-Harmonious exercise of two Powers-The Constitution  of India, Arts. 161, 142-Supreme Court  Rules, Order XXI, r. 5.

HEADNOTE: The  petitioner  was Second in Command of 1.  N.  S.  Mysore which came to Bombay in the beginning of March, 1959.   Soon thereafter  he was arrested on a charge of murder  under  s. 302 of the ’Indian Penal Code and was placed, and  continued to remain, in naval custody all along during his trial.   In due  course  he  was placed on trial by a  jury  before  the Sessions Judge, Greater Bombay, in which the jury returned a verdict of not guilty by a majority; but the Sessions  judge disagreeing with the verdict of the jury made a reference to the  High Court which convicted the petitioner under s.  302 of  the Indian Penal Code and sentenced him to  imprisonment for  life.  On the same day when the High  Court  pronounced its  judgment the Governor of Bombay passed an  order  under Art.  161  of  the  Constitution  of  India  suspending  the sentence  passed  by  the  High  Court  of  Bombay  on   the petitioner  until the appeal intended to be filed by him  in the  Supreme Court against his conviction and  sentence  was disposed  of and subject meanwhile to the condition that  he shall be detained in the Naval Jail custody.  A warrant  for the  arrest of the petitioner which was issued in  pursuance of the judgment of the High Court was returned unserved with the report that it could not be served in view of the  order of  the  Governor suspending the sentence  passed  upon  the petitioner.

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In  course  of the hearing of an application  for  leave  to appeal  to the Supreme Court filed by the petitioner in  the High  Court the matter of the unexecuted warrant was  placed before  it  and  a Special Bench of  the  High  Court  after examining  the validity of the action taken by the  Governor came to the conclusion that the order passed by the Governor was  not  invalid,  that  the order  for  detention  of  the petitioner  in  naval custody was not  unconstitutional  and that  the  sentence  passed on the  petitioner  having  been suspended  the  provisions of 0. XXI, r. 5, of  the  Supreme Court  Rules did not apply and it was not necessary for  the petitioner to surrender to his sentence. Thereafter  the petitioner filed an application for  special leave  in  the Supreme Court and  also  another  application praying  for  exemption from compliance with  the  aforesaid rule and 498 for the hearing of his application for special leave without surrendering to his sentence.  His plea at first was that as he was not a free man it was not possible for him to  comply with the requirements of 0. XXI, r. 5, of the Supreme  Court Rules; but he subsequently amended it to the effect that the aforesaid  Rule  did not apply to his case in  view  of  the Governor’s  order.   On  a reference of  this  matter  by  a Division  Bench of this Court to the Constitution-Bench  for hearing, Held, that the Governor had no power to grant the suspension of sentence for the period during which the matter was  sub- judice  in this Court.  The Governor’s order suspending  the sentence  could  only operate until the matter  became  sub- judice  in  this  Court on the filing of  the  petition  for special leave to appeal whereupon this Court being in seisin of the matter would consider whether 0. XXI, r. 5 should  be applied  or  the  petitioner should  be  exempted  from  the operation thereof as prayed for.  It would then be for  this Court  to pass such orders as it thought fit as  to  whether bail  should  be  granted to the  petitioner  or  he  should surrender to his sentence or to pass such other order as the court deemed fit in the circumstances of the case. On the principle of harmonious construction and- to avoid  a possible conflict between the powers given under Art. 161 to the  Governor and under Art. 142 to the Supreme Court,  both of  which  are absolute and unfettered in  their  respective fields  of operation, it must be held that.   Art.  161,does not  deal  with the suspension of sentence during  the  time that  Art. 142 is in operation and the matter is  sub-judice in the Supreme Court. Per KAPUR J. (dissenting)-The language of Art. 161 is of the widest  amplitude.   It is plenary and an act of  grace  and clemency  and may be termed as benign prerogative of  mercy; The power of pardon is absolute and exercisable at any time. Rules framed under Art.  145 are subordinate legislation and cannot   override  the  provisions  of  Art.  161   of   the Constitution  itself.  While the Governor’s power  to  grant pardon is a power specially conferred upon him as was vested in the British Governor in British days, the power given  to the  Court under Art. 142(1) is a general power  exercisable for  doing complete justice in any cause or matter,  and  if they  deal with the same matter then Art. 161  must  prevail over  Art. 142(1). The two powers may have the  same  effect but they operate in distinct fields on different  principles taking wholly irreconcilable factors into consideration. The  action  taken by the executive being  the  exercise  of overriding power is not subject to judicial review. It  could not have been the intention of the framers of  the

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Constitution that the amplitude of executive power should be restricted as to become suspended for the period of pendency of an appeal in the Supreme Court. 499

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal  Misc.Petn.   No. 320/60. Application   for   exemption  from  compliance   with   the requirements  of Rule 5 of Order XXI, Supreme  Court  Rules, 1950 (as amended). 1960.  July 18, 19, 20  21, 22. S.   N.  Andley, J. B. Dadachanji, Rameshwar Nath and P.  L. Vohra, for the petitioner. H.M. Seervai, Advocate-General for the State of BombayAtul Setalved and R. H. Dhebar, for the respondent. [SinhaC.  J.-Do  you dispute the power of the  Court  to make this rule ?] H.M. Seervai:--No, My Lord.  The Court imposes a  penalty in ’its judicial capacity; the Executive remits the  penalty in  its executive capacity.  There is no clash  between  the two powers.  The powers of the Executive do not collide with the  powers ’of the judiciary.  The prerogative of the  King or  the  President  can  never  be  in  conflict  with   the judiciary,  executive or legislature.  Prerogatives come  to aid  the process of justice.  Power of pardon is plenary  in nature  and unfettered.  It could be exercised at  any  time after  the  commission of the  offence,  before  indictment, during the trial and after the trial. [Sinha  C. J.-Is not that power of pardon  exercised  before the trial ?] Pardon is given after the offence is proved.  In the  United States the question is never asked whether the President has invaded the power of the judiciary. [Sinha C. J.-So far as India is concerned take a ,case  like this:  A  man  is convicted for  murder  and.  sentenced  to imprisonment  for life.  But subsequently it is  found  that the  deceased died a natural death or the deceased  appeared alive afterwards.  What will happen ?] A pardon will be granted(s.-401). The President is  entitled to pardon a person convicted for an offence punishable  with death, United States v. Wilson, 8 L.    Ed.  640 at 644,  Ex parte Wells, 15 L. Ed. 421, 423. 500 A   free  and  unconditional  pardon  has  the   effect   of obliterating  the crime.  Section 426(1) empowers the  Court to  suspend  the  sentence or grant  bail.   The  Executive, Judiciary  and  Legislature,  paralysing  each  other  never happens.   United States v. Klein, 20 L. Ed. 519,  Ex  Parte Grossman, 69 L. Ed. 527. [SUBBA  RAO J.-Your argument assumes that if the  Governor’s order  was valid then the Supreme Court Rule would not  come in.   It  may not be necessarily so because in  the  present case there was a conviction and sentence and the accused has no  right of appeal.  The accused invited the order  of  the Governor.   Entertainment of the appeal by special leave  is in  the discretion of the Supreme Court.  Unless  there  are adequate  reasons for the Governor to make this  order,  why should  we  use  our discretion to  give  exemption  to  the accused from the rules of the Court ?] The sentence having been suspended there is no sentence  and therefore this Court need not insist on his surrender. [SUBBA  RAO J.-The provisions, of Art. 161 did not say  that

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the power under it could be exercised notwithstanding  other provisions  of  the Constitution.  Was  it,  therefore,  not necessary to hormonise this power with other  constitutional provisions such as Art. 142 ?] [KAPUR  J.-In  India  have the Courts  power  to  suspend  a sentence?] Yes, in a limited way as provided in s. 426. [KAPUR  J.-If  the  sentence  is  suspended,  there  is   no sentence.]  No, there is no sentence to surrender to.  The execution of sentence  is an executive power.  The function of the  Court ends  with  the  passing  of the  sentence.   To  carry  the sentence  into  execution  is an  executive  order.   United States v. Benz, 75 L. Ed. 354, 358. In  India  we  start with s. 401 of  the  Code  of  Criminal Procedure, 1898, and s. 295 Government of India Act,1935. Pardon is a part of the Constitutional scheme, Balmukand  v. King, Emperor, L. R. 42 I. A. 133. 501 Exercise  of prerogatives is in the  jurisdiction  of  the Executive  and  not the judiciary, Lala Jairam Das  v.  King Emperor,  L.  R.  72 1. A. 120.  The powers are  in  aid  of justice. [SUBBA RAO J.-Your argument is that one acts in the judicial field, while the other acts in the executive field and hence there is no conflict.  But whatever the nature of the power, the Governor in exercising that power is encroaching on  the field occupied by the Supreme Court.  Under the Constitution the  Supreme  Court  can  entertain  appeals  and  pass  the necessary  orders  and perhaps, under the rules  suspend  or stay  execution  of  a  sentence.  On  the  other  hand  the Governor under Art. 161 has powers to suspend the  sentence. I   am  suggesting  that  where  there  is  a  conflict   of jurisdiction  between the Judiciary and the Executive is  it not reasonable to bring harmony between these two?  What  is wrong in confining the power of the Governor to cases  where there  is no appeal pending before the Supreme Court  ?  Can the executive interfere with the judiciary in the midst of a case?] Yes,  in  its  administrative  capacity  it  can  ask   the. Advocate-General to enter a nolle prosequi and terminate the trial.   This  a  statutory power.   Babu  Lal  Chokhani  v. Emperor,  [1937]  1 Cal. 464.  Court refused  bail  but  the executive suspended the sentence. The State of Bihar v. M. Homi, [1955] 2 S.C.R. 78. Rule  5 Order XXI, of the Supreme Court Rules represent’s  a well-settled practice of all courts but it cannot affect the power  of  pardon or the exercise of prerogatives  which  is unfettered.  The Rule postulates that there is a sentence to surrender   to’.   Under  Arts.  72,  161  the   President’s prerogative  is  not  made  subject  to  any   parliamentary legislation.   There is no limit to Art. 72 or Art.  161  in the  Constitution express or implied, Hari Vishnu Kamath  v. Syed  Ahmad Ishaque, [1955] 1 S. C. R. 1104.  The powers  of the Court and the Executive are distinct and separate.   The Executive  comes  in  after  the  Court  has  performed  its function. 502 [KAPUR  J.-YOU are talking about suspension of the  sentence but  can  the Supreme Court suspend the sentence  ?  We  can grant bail but can we suspend the sentence? Yes,  the Supreme Court has the power to stay the  execution of sentence.] [KAPUR  J.-IS the condition imposed upon Commander  Nanavati illegal ?]

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No, nobody has said so. The  Court can say Judicially that justice requires  that  a convicted person should remain in jail but the President can say  on  considerations of mercy that he should  be  set  at liberty, King v. S. S. Singh, I.L.R. 32 Pat. 243.  Power  of prerogative  is  far wider than the judicial powers  of  the Court.   The expression " at any time " in s. 401,  Code  of Criminal Procedure, recognises this principle. [GAJENDRAGADKAR  J.-Can  the  naval  authorities  keep   the petitioner in naval custody ? Is it legal ?] The  naval authorities made no such request.   The  Governor ordered  him  to  be kept in naval  custody  and  the  naval authorities did not object.  There is nothing illegal  about it.  It was perfectly legal.  The validity of the Governor’s order has not been referred to this constitutional bench  of the  Court.   There  is a distinction  between  illegal  and unlawful.   Illegal is that which the law directly  forbids; unlawful is that which the law does not recognise. [SINHA  C. J.-What is unlawful may become lawful by  consent but what is illegal cannot become legal even by consent.] The  Governor’s  order  should not be  held  to  be  illegal without  any  complaint  to that  effect  from  the  parties concerned and in their absence.  When the navy accepted  the Governor’s  order  it  could be presumed that  there  was  a usage,  S. 3(3)(12), Navy Act.  There is no section  in  the Navy Act which prohibits such custody. [GAJENDRAGADKAR  J.7-18  this  the  position  now  that  the Provost Marshall is keeping the petitioner in 503 his custody without any express provision of the Navy Act?] Section 14 of the Navy Act.  There is a difference between a private  person and a naval officer being detained in  naval custody.  Commander Nanavati is still in naval service.   He cannot leave the naval service. [SUBBA  RAO J.-There are two ways of reconciling the  powers of  the  Governor under Art. 161 and those  of  the  Supreme Court  under Arts. 142, 144, 145.  One way was to  say  that the Supreme Court had no power when the Executive  exercised its  powers.  The other way was to say that while  both  had powers,  so far as pardon and remission were  concerned  the Executive had the exclusive power, but as far as  suspension was concerned, when proceedings were pending in the  Supreme Court  the Executive could not make an order impinging  upon the Supreme Court’s power.] But  in the interest of justice the Supreme Court  can  pass any  suitable order.  The power of the Supreme  Court  under Art. 141 is a power generally- exercisable in all cases  but the  Governor’s  power is a special power.  If  there  is  a conflict  between  a General power and a special  power  the special  power  should prevail although I don’t  admit  that there is a conflict. H.   N. Sanyal, Additional Solicitor-General of India,S.   M. Sikri, Advocate-General for the State of Punjab and T. M.Sen, for the Attorney General of India.  There is no conflict  at all.   The power of the Supreme Court is a  judicial  power; the  power  of  the Governor is an  executive  power.   They cannot  collide  at all.  The Supreme  Court  can  certainly exercise its power but let it not disregard the power of the executive.  Let both the powers be harmonised. C.B.  Agarwala  (Amicus Curiae)-The Supreme  Court  is  a Court  of record under Art. 129 and has  the  constitutional privilege of prescribing. its procedure under which it  will exercise   its   discretion   vested  in it   under   the Constitution.  By Art. 145 the Supreme 65

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504 Court  has  the  constitutional  power  to  lay  down  rules imposing  conditions under which alone it would entertain  a special leave petition. The  material  rule is made under the  constitutional  right given  to  the Supreme Court as a Court of  Record  and  not under  a law made under Art. 245.   Subordinate  legislation presupposes  a rule made under laws enacted under Art.  245. Its analogy cannot be .applied to rules under Art. 145.  The fact  that  the rules made by the Supreme Court  under  Art. 145.  require the approval of the President  cannot  convert the rules into a law made under Art. 245. The rule in question made by the Supreme Court requires that the special leave petition is subject to the condition  that the  petitioner surrenders to the authority of  the  Supreme Court, and by passing the order in question the Governor has deprived the Supreme Court of its authority over the custody of the accused pending the special leave petition.   Article 161  read with Art. 154 shows that the Governor  even  while exercising  his constitutional powers cannot affect,  modify or override the powers of the Supreme Court or the procedure prescribed by it. After  a  special leave petition is made to it or  when  the appeal is admitted, the Supreme Court has ample jurisdiction to  give relief by way of suspension of sentence under  Art. 141  and the rules.  Power of suspension of sentence is  not exercisable  by the Executive when relief can be granted  by the trial Court or a competent Court of appeal. The appropriate construction of the rule would indicate that the Governor’s powers under Art. 161 operate only up to  the stage  when an application for special leave is  made  under Art.  136  and cannot interfere with the  authority  of  the Supreme Court thereafter. Assuming,   without  admitting,  that  the  Governor   could interfere with the authority and jurisdiction of the Supreme Court  he could do so only if a valid order was  made  under Art. 161.  The order under consideration being subject to an illegal  condition  is  an  illegal  order.   Even  if,  the condition is not illegal it has been 505 operated only by the petitioner’s voluntary consent with the object of not complying with the rule of the Supreme  Court. The Supreme Court will decline to exercise its discretion in favour  of  the  petitioner who by  his  voluntary  act  put himself out of its jurisdiction. Under Art. 144 the Governor’s authority is bound to aid  the court  in the exercise of its jurisdiction.  It is  open  to the  petitioner  to approach the Government  to  modify  the Governor’s order to enable him to comply with the  procedure of the Supreme Court. [KAPUP.  J.-Has the Court power to suspend a sentence ?  Has any court ever done so ? Has any court ever ordered that the sentence will take effect after a certain period of time ?] The  appellate Court has the. power to suspend the  sentence under Art. 142. [SINHA C. J.-The Executive can intervene at, any time during the trial.] Yes,  in  the  case of pardon, The State of  Bombay  v.  The United Motors (India) Ltd., [1953] S.C.R. 1069. [SINHA C: J.-The argument of the petitioner is that there is no  sentence in operation and therefore there is nothing  to surrender to.] There  is  apparently  a  conflict.   The  Court  says   the petitioner  must surrender to his sentence.   The  Executive says  that  he need not surrender and will  remain  in  some

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other  custody.   The Governor has extended the  period  of, suspension  till the decision of the petitioner’s appeal  in this Court.  There is clash with the rule of this Court. [SINHA  C.  J.-If  the Supreme Court refused  bail  can  the executive suspend the sentence ?] No, it cannot, in cases of suspension there is apparently  a conflict.   There  is  a  distinction  between  pardon   and suspension.   Suspension  stands  on  a  different  footing. Pardon  can  be  granted  at any  stage  but  suspension  of sentence can be made only after the sentence is inflicted. H.M. Seervai in reply.  Nothing in Arts. 142, 145 and ss. 411, 426, Code of Criminal Procedure, will 506 supersede the powers of the Governor to grant reprieve, etc. The   Code  of  Criminal  Procedure  gives  the   power   of suspension, of bail, etc. [KAPUR  J.-Did  the Federal Court have power  to  suspend  a sentence.] Yes,  it  had the power to grant bail or stay  execution  of sentence.   The  power  of  the  Court  to  suspend  is  not absolute. [SINHA C. J.-The Executive is bound to execute the orders of the Court.] Yes, but if the Government, after the passing of the Court’s order,  itself  in  its own  jurisdiction  passes  an  order suspending  the sentence the Executive in that case  has  no authority  to execute the order of the Court, United  States v. Benz, 75 L. Ed. 354, Hales Pleas of the  Crown,-Reprieves before or after the judgment, p. 412, Rogers v. Peck, 50  L. Ed.  256Reprieve being granted when a matter was before  the Court. 1960.    September  5.  The  Judgment  of  Sinha,   C.   J., Gajendragadkar, Subba Rao and Wanchoo, JJ., was delivered by Sinha C. J. Kapur, J., delivered a separate Judgment. SINHA   C.  J.-This  matter  has  been  placed  before   the Constitution Bench in father extraordinary circumstances, as will presently appear.  It involves the question as to  what is  the content of the power conferred on the Governor of  a State  under Art. 161 of the Constitution ; and whether  the order  of  the  Governor of Bombay  dated  March  11,  1960, impinges  on  the  judicial  powers  of  this  Court,   with particular  reference  to its powers under Art. 142  of  the Constitution. For the determination of the constitutional issue raised  in this case, it is not necessary to go into the merits of  the case against the petitioner.  It is only necessary to  state the  following  facts  in order to  appreciate  the  factual background of the order of the Governor of Bombay  aforesaid impugned in this case.  The petitioner was Second in Command of 1. N. S. Mysore, which came to Bombay in the beginning of 507 March 1959.  On April 27, 1959, the petitioner was  arrested in  connection with a charge of murder under s. 302  of  the Indian  Penal Code.  He was produced before  the  Additional Chief  Presidency Magistrate, Greater Bombay, in  connection with that charge on April 28, 1959.. The Magistrate remanded him  to  police custody on that day.  On the  following  day (April  29, 1959) the Magistrate received a letter from  the Flag  Officer, Bombay, to the effect that he was  ready  and willing  to take the accused in naval custody as defined  in s.  3(12) of the Navy__Act, 1957, in which custody he  would continue  to  be  detained under the  orders  of  the  Naval Provost Marshall in exercise of his authority under s. 89(2) and (3) of the Navy Act.  There upon the Magistrate made the order  directing that the accused should be detained in  the

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Naval Jail and Detention Quarters in Bombay.  The Magistrate has  observed in his order that he had been moved under  the instructions  of  the Government of India.   The  petitioner continued  to  remain in naval custody all  along.   In  due course,  he was placed on trial before the  Sessions  Judge, Greater Bombay.  The trial was by a jury.  The jury returned a  verdict  of ’not guilty’ by a majority of eight  to  one. The  learned  Sessions Judge made a reference  to  the  High Court   under  s.  307  of  the  Criminal  Procedure   Code, disagreeing  with the verdict of the jury.   The  reference, being Cr. Ref No. 159 of 1959, was heard by a Division Bench of  the  Bombay  High Court.  The High  Court  accepted  the reference  and convicted the petitioner under s. 302 of  the Indian  Penal  Code and sentenced him  to  imprisonment  for life,  by its judgment and order dated March 11,  1960.   On the  same day, the Governor of Bombay passed  the  following order:-               " In exercise of the powers conferred on me by               Article  161 of the Constitution of India,  1,               Shri  Prakasa, Governor of Bombay, am  Pleased               hereby  to suspend the sentence passed by  the               High  Court  of  Bombay  on  Commander  K.  M.               Nanavati  in  Sessions  Case go.  22  of  IVth               Sessions of 1959 until the appeal intended  to               be  filed by him in the Supreme Court  against               his conviction and sentence is disposed of and               508               subject  meanwhile to the conditions  that  he               shall be detained in the Naval Jail Custody in               1. N. S. Kunjali". In  pursuance  of  the judgment of the High  Court,  a  writ issued to the Sessions Judge, Greater Bombay,  communicating the  order of the High Court convicting and  sentencing  the petitioner  as  aforesaid.   The  Sessions  Judge  issued  a warrant  for  the arrest of the accused and sent it  to  the police  officer  in charge of the City  Sessions  Court  for Greater  Bombay  for execution.  The  warrant  was  returned unnerved  with  the  report that the warrant  could  not  be served  in  view of the order set out above  passed  by  the Governor   of  Bombay  suspending  the  sentence  upon   the petitioner.   The Sessions Judge then returned the writ  to- gether with the unexecuted warrant to the High Court. In  the meantime an application for leave to appeal  to  the Supreme   Court  was  made  soon  after  the  judgment   was pronounced  by the High Court and the matter was  fixed  for hearing  on March 14, 1960.  On that day the matter  of  the unexecuted  warrant  was placed before  the  Division  Bench which   directed   that,  in  view  of   the   unusual   and unprecedented  situation  arising out of the  order  of  the Governor  the matter should be referred to a  larger  Bench. Notice was accordingly issued to the State of Bombay and  to the accused person.  A Special Bench of five Judges of  that Court  heard  the matter.  The Special Bench  permitted  two Advocates,  Mr. Kotwal and Mr. Pranjpe, to appear on  behalf of the Western India Advocates’ Association.  Similarly, Mr. Peerbhoy was also permitted to appear along with Mr.  Latifi on behalf of the Bombay Bar Association.  They were heard as amicus curiae in view of the fact that the Advocate  General for  the  State of Bombay and the counsel for  accused  were both sailing in the same boat, that is to say, both of  them were  appearing to support the order made by  the  Governor. In view of the great importance of the issues involved,  the Court  allowed those Advocates to represent the  other  view point.   The Advocate General of Bombay as also counsel  for the

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509 accused  made objections to the Court hearing the  Advocates aforesaid on the ground that they had no locus standi.   The Advocate  General  of  Bombay  also  raised  a   preliminary objection to the hearing of the matter by the Special  Bench on  the  ground that it had no jurisdiction to  examine  the validity of the action taken by the Governor, because  there was  no  judicial  proceeding then  pending.   The  criminal reference aforesaid, to which the State and the accused were parties,  had  already been disposed of and  none  of  those parties  had raised any grievance or objection to the  order of  the  Governor  impugned before  the  Court.   The  Court overruled  that objection in view of the fact that the  writ issued by the Court had been returned unexecuted on  grounds which  could be examined by the Court as to the validity  of the  reasons for the return of the warrant unexecuted.   The High Court then examined the validity of the action taken by the  Governor  and came to the conclusion that  it  had  the power  to examine the extent of the Governor’s  power  under Art. 161 of the Constitution and whether it had been validly exercised   in  the  instant  case.   After   an   elaborate examination  of the questions raised before it, the  Special Bench  came to the conclusion that the order passed  by  the Governor  was not invalid.  It also held that the  condition of  the  suspension  of the order  that  the  petitioner  be detained  in  naval custody was also  not  unconstitutional, even  though  the accused could not have  been  detained  in Naval  Jail under the provisions of the Navy Act,  after  he had  been convicted by the High Court.  The Court also  held negativing the contention raised on behalf of the  Advocates appearing  as amicus curiae that the order of  the  Governor did  not  affect  the  power  of  the  Supreme  Court   with particular  reference to r. 5 of 0. XXI of the Rules of  the ’Supreme  Court, which will be set out in full  hereinafter. The  reason  for this conclusion, in the words of  the  High Court, is :-               " As the sentence passed upon the accused  has               been  suspended, it is not necessary  for  the               accused  to surrender to his sentence.               Order XXI, r. 5, of the               510                Supreme  Court  Rules  will  not,  therefore,               apply in this case". The  High Court also overruled the plea of mala  fides.   In the  result, the High Court held that as the order  made  by the  Governor had not been shown to be  unconstitutional  or contrary  to law, the’ warrant should not be reissued  until the  appeal  to  be  filed in the  Supreme  Court  had  been disposed  of, unless the order made by the  Governor  stands cancelled or withdrawn before that event. The petitioner filed his petition for special leave in  this Court  on  April 20,1960, and also made  an  application  on April  21,  1960, under 0. XLV, rr. 2 and 5 of  the  Supreme Court Rules for exemption from compliance with 0. XXI, r. 5, of  those Rules.  It was stated in the petition  that,  soon after his arrest, the petitioner throughout the trial before the  Sessions Court and the hearing of the reference in  the High Court, had been in naval custody and continued to be in that  custody, that he had been throughout of good  behavior and  was ready and willing to obey any order of this  Court, but  that the petitioner " not being a free man it  was  not possible for him to comply with the requirements of r. 5  of 0.  XXI of the Supreme Court Rules.........  He,  therefore, prayed  that  he may be exempted from  compliance  with  the aforesaid  rule and that his petition for special  leave  to

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appeal be posted for hearing without his surrendering to his sentence.   On  April 25, 1960, the special  leave  petition along  with  the  application for  exemption  aforesaid  was placed  before a Division Bench which passed  the  following order:               "This is a petition for special leave against               the  order passed by the Bombay High Court  on               reference, convicting the petitioner under  s.               302  of the Indian Penal Code  and  sentencing               him to imprisonment for life.  Along with  his               petition for special leave an application  has               been  filed by the petitioner praying that  he               may  be  exempted from surrendering  under  0.               XXI,  r. 5, of the Rules of this  Court.   His               contention  in this application is that he  is               ready and willing to obey any order that  this               Court  may  pass but that as a result  of  the               order passed by the Governor of Bombay               511               under Art. 161 of the Constitution he is not a               free  man to do so and that is put forward  by               him  as an important ground in support of  his               plea  that he may be exempted  from  complying               with  the relevant rule of this  Court.   This               plea    immediately   raises   an    important               constitutional  question about the  scope  and               extent’   of  the  powers  conferred  on   the               Governor  under Art. 161 of  the  Constitution               and that is a constitutional matter which  has               to  be heard by a Constitution Bench  of  this               Court.   We  would  accordingly  direct   that               notice of this application should be served on               the  Attorney General and the State of  Bombay               and  the papers in this application should  be               placed  before  the learned Chief  Justice  to                             enable   him  to  direct  in  due  course,   i n               consultation with the parties concerned,  when               this application should be placed for  hearing               before the Constitution Bench ". After the aforesaid order of this Court, it appears that  on July  6, the petitioner swore an affidavit in Bombay to  the effect  that  his application aforesaid for  exemption  from compliance  with the requirements of r. 5 of 0. XXI  of  the Rules  had  been made under a misapprehension of  the  legal position  and that the true position had been  indicated  in the  judgment of the Special Bench of the Bombay High  Court to  the  effect that r. 5 of 0. XXI of the Rules  would  not apply to his case in view of the Governor’s order  aforesaid and that, therefore, his special leave petition be  directed to be listed for admission.  It is apparent that this change in  the petitioner’s position as regards the  necessity  for surrender  is clearly an afterthought.  Certainly,  it  came after  the  Division Bench had directed  the  constitutional matter to be heard as a preliminary question. That is how the matter has come before us.  Before we  heard the  learned  Advocate General of Bombay,  and  the  learned Additional  Solicitor-General  on  behalf of  the  Union  of India,  we enquired of Shri J. B. Dadachanji,  Advocate  for the  petitioner, whether the petitioner was prepared to  get himself  released  from  the Governor’s order  in  order  to present himself in this 66 512 Court  so  that the hearing of his  special  leave  petition

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might  proceed in the ordinary course, but he was not  in  a position to make a categorical answer and preferred to  have the  constitutional question determined on its  merits.   We had the assistance of Mr. C. B. Aggarwala, who very properly volunteered  his services as amicus curiae to represent  the other view point.  In this Court also the situation was  the same as in the High Court, namely, that unless there was  an amicus  curiae  to represent the opposite  view  point,  the parties  represented  before  us  were  not  contesting  the validity of the Governor’s order.  Both here and in the High Court,  it was at the instance of the Court itself that  the matter  has  been  placed for  hearing  on  the  preliminary question before dealing with the merits of the  petitioner’s case. The  learned Advocate General of Bombay has argued with  his usual vehemence and clarity of expression that the power  of pardon,   including  the  lesser  power  of  remission   and suspension of a sentence etc. is of a plenary character  and is  unfettered ; that it is to be exercised not as a  matter of  course,  but  in  special  circumstances  requiring  the intervention  of the Head of the Executive; that  the  power could  be exercised at any time after the commission  of  an offence; that this power being in the nature of exercise  of sovereign power is vested in the Head of the State and  has, in some respects, been modified by statute ; that the  power of  pardon  may be exercised unconditionally or  subject  to certain conditions to be imposed by the authority exercising the  power; that such conditions should not be  illegal  or impossible of performance or against public policy.  It  was further  argued  that the power of pardon is vested  in  the Head  of  the  State  as an  index  of  sovereign  authority irrespective of the form of Government.  Thus the  President of  the  United States of America and Governors  of  States, besides,  in  some cases Committees, have been  vested  with those  powers, which cannot be derogated from by a  Legisla- ture.  So far as India is concerned, before the Constitution came into effect such powers have been regulated by statute, of course, subject to the power of the 513 Crown   itself.   After  the  Constitution,  the  power   is contained  in Art. 72 in respect of the President, and  Art. 161 in respect of the Governor of a State.  Articles 72  and 161 are without any words of limitation, unlike the power of the Supreme Court contained in Arts. 136, 142, 145 and other Articles  of  the  Constitution.  Hence,  what  was  once  a prerogative  of the Crown has now or crystallized  into  the common law of England and statute in India’. for example, s. 401  of the Code of Criminal Procedure, or Arts. 72 and  161 of  the Constitution.  He particularly emphasised  that  the two  powers,  namely, the power of the  Executive  to  grant pardon, in its comprehensive sense, and of the Judiciary are completely  apart  and  separate and  there  cannot  be  any question  of  a  conflict between  them,  because  they  are essentially different, the one from the other.  The power of pardon is essentially an executive action.  It is  exercised in aid of justice and not in defiance of it.  With reference to  the particular question, now before us, namely, how  far the  exercise of the executive power of pardon contained  in those  two  Articles  of the Constitution  can  be  said  to impinge  on  the judicial functions of this  Court,  it  was argued  that  r.  5 of 0. XXI of the  Rules  of  this  Court postulates the existence of a sentence of imprisonment  and, as in this case, as a result of the Governor’s order,  there is no such sentence running there could not be any  question of the one trespassing into the field of the other.  Rule  5

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aforesaid of this Court represents the well settled practice of  this Court, as of other Courts, that a person  convicted and  sentenced  to  a term of  imprisonment  should  not  be permitted to be in contempt of the order of this Court, that is  to  say, should not be permitted to move  the  appellate court  without  surrendering  to  the  sentence.   But   the petitioner  is  not in such contempt, because r. 5  did  not apply to him.  The order of sentence against him having been suspended, he is not disobeying any rule or process of  this Court or of the High Court.  The power of the Supreme  Court to make rules is subject to two limitations, namely, (1)  to any law made by Parliament and (2) the   approval   of   the President.  On the other hand, 514 Arts.  72  and  161  enshrine  the  plenary  powers  of  the sovereign State to grant pardon etc., and are not subject to any  limitations.   There could, therefore, be  no  conflict between  these two, and if there were any conflict  at  all, the limited powers of the Court must yield to the  unlimited powers  of the Executive.  As regards the condition  imposed by  the  Governor,  subject to  which  the  sentence  passed against the petitioner had been suspended, the condition was not   illegal,  because  it  did  not  offend  against   any peremptory  or mandatory provisions of law.  It is  not  the same  thing to say that the condition was not authorised  by law  as to say that the condition was illegal, in the  sense that it did what was forbidden by law.  We were referred  to the  various provisions of the Indian Navy Act (Act LXII  of 1957)  to show that there were no provisions which could  be said  to have been contravened by the condition attached  to the  order of suspension by the Governor.  Furthermore,  the naval  custody  in which the petitioner continues  had  been submitted  to by the petitioner and what has been  consented to cannot be illegal, though it may not have been authorised by  law.  Lastly, it was contended that the  observation  of the  High  Court in the last paragraph of its  judgment  was entirely uncalled for, because once it is held, as was  held by  the  High  Court,  that the  Governor’s  order  was  not unconstitutional, it was not open to the High Court to  make observations  which  would  suggest that  the  Governor  had exercised  his  power improperly.  If the  exercise  of  the power by the Governor is not subject to any conditions,  and is not justifiable, it was not within the power of the  High Court  even  to suggest that the Governor  should  not  have passed  the  order  in  question.   The  learned  Additional Solicitor General adopted the able arguments of the Advocate General  and  added that, in terms, there  was  no  conflict between Arts. 142 and 161 of the Constitution. Mr.  C. B. Aggarwala, to whom the Court is obliged  for  his able  assistance to the Court, argued that the  exercise  of the  rule  making power by the Supreme Court is not  a  mere statutory power, but is a constitutional privilege; that the Supreme Court alone could 515 lay  down  rules  and conditions in  accordance  with  which applications for special leave to appeal to the Court  could be  entertained  ;  that the  material  rule  governing  the present case was made under the constitutional power of  the Supreme  Court under Art. 145 and that the  Advocate-General was  in error in describing it as subordinate legislation  ; that ’the fact that the rules made by this Court under  Art. 145  of  the  Constitution  require  the  approval  of   the President  cannot convert them into rules made under  a  law enacted in pursuance of power conferred, either by Art.  123 or  Art. 245 of the Constitution; that the  underlying  idea

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behind  r. 5 of 0. XXI of the Rules of this Court is to  see that  the petitioner to this Court or the  appellant  should remain  under’  the  directions of  the  Court;  that  the Governor  by passing the order in question has deprived  the Supreme Court of its power in respect of the custody of  the convicted  person ; that the power under Art. 161 has to  be exercised  within  the limits laid down by Art. 154  of  the Constitution.  It was also argued that the petitioner  could have  got his relief from this Court itself when he  put  in his application for special leave and that in such a  situa- tion  the  Executive should not have intervened.   In  other words,  the contention was that, like the Courts of  Equity, which intervened in aid of justice when law was of no  avail to  the litigant, the Executive also should  exercise  their power only where the courts have not been clothed with ample power   to   grant  adequate  relief   in   the   particular circumstances  governing  the case.  It was  further  argued that on a true construction of the provisions of the law and the Constitution, it would appear that the Governor’s  power extends only up to a stage and no more, that is to say,  the Governor  could suspend the operation of the  sentence  only until  the Supreme Court was moved by way of  special  leave and then it was for the Court to grant or to refuse bail  to the petitioner.  Once the Court has passed an order in  that respect, the Governor could not intervene so as to interfere with the orders of the Court.  Alternatively, it was  argued that,  even  assuming that an order of suspension  in  terms made by the Governor, 516 could   at  all  be  passed  during  the  pendency  of   the application for leave to appeal to this Court, such an order could  be  passed  only by the President,  and  not  by  the Governor.  In any view of the matter, it was further argued, the  Governor could pass an order contemplated by Art.  161, but  could  not add a condition, as he did  in  the  present case, which was an illegal condition.  It was further argued that the generality of the expressions used in s. 401 of the Criminal  Procedure Code has to be out down by the  specific provisions  of  s. 426 of that Code.  In other  words,  when there  is an appeal pending or is intended to be  preferred, during  that limited period, the trial court itself  or  the appellate  court, has to exercise its judicial  function  in the  matter  of  granting bail etc. ;  and  the  appropriate Government is to stay its hands during that time. Before  dealing  with the main question as to  what  is  the scope  of the power conferred upon the Governor by Art.  161 of  the Constitution, it will be convenient to review  in  a general way the law of pardon in the background of which the controversy has to be determined.  Pardon is one of the many prerogatives   which   have  been  recognised   since   time immemorial  as being vested in the sovereign,  wherever  the sovereignty might lie.  Whether the sovereign happened to be an   absolute   monarch   or  a  popular   republic   or   a constitutional  king or queen, sovereignty has  always  been associated with the source of power-the power to appoint  or dismiss  public  servants,  the power  to  declare  war  and conclude  peace,  the power to legislate and  the  power  to adjudicate upon all kinds of disputes.  The King, using  the term  in a most comprehensive sense, has been the symbol  of the  sovereignty of the State from whom emanate  all  power, authority and jurisdictions.  As kingship was supposed to be of  divine  origin, an absolute king had  no  difficulty  in proclaiming and enforcing his divine right to govern,  which includes  the right to rule, to administer and  to  dispense justice.  It is a historical fact that it was this claim  of

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divine  right  of  kings that brought the  Stuart  Kings  of England in conflict with Parliament as the 517 spokesman  of the people.  We know that as a result of  this struggle  between the King, as embodiment of absolute  power in all respects, and Parliament, as the champion of  popular liberty,  ultimately emerged the constitutional head of  the Government in the person of the King who, in theory,  wields all  the  power,  but,  in practice,  laws  are  enacted  by Parliament,  the  executive power vests in  members  of  the Government,  collectively called the Cabinet,  and  judicial power  is vested in a Judiciary appointed by the  Government in the name of His Majesty.  Thus, in theory, His Majesty or Her  Majesty continues to appoint the Judges of the  highest courts,  the  members  of  the  Government  and  the  public servants,  who  hold  office  during  the  pleasure  of  the sovereign.   As a result of historical processes  emerged  a clear cut division of governmental functions into executive, legislative and judicial.  Thus was established the "  Rule, of Law " which has been the pride of Great Britain and which was  highlighted  by  Prof.  Dicey.  The  Rule  of  Law,  in contradistinction  to the rule of man, includes  within  its wide connotation the absence of arbitrary power,  submission to the ordinary law of the land, and the equal protection of the laws.  As a result of the historical process  aforesaid, the  absolute and arbitrary power of the monarch came to  be canalised  into  three  distinct wings  of  the  Government. There  has  been  a  progressive  increase  in  the   power, authority  and  jurisdiction  of  the  three  wings  of  the Government  and a corresponding diminution of  absolute  and arbitrary  power  of the King.  It may, therefore,  be  said that  the prerogatives of the Crown in England,  which  were wide  and varied, have been progressively curtailed  with  a corresponding   increase   in  the  power,   authority   and jurisdiction  of the three wings of Government, so  much  so that most of the prerogatives of the Crown, though in theory they have continued to be vested in it, are now exercised in his   Dame  by  the  Executive,  the  Legislature  and   the Judiciary.  This dispersal of the Sovereign’s absolute power amongst the three wings of Government has now 518 become the norm of division of power; and the prerogative is no  greater  than what the law allows.   In  the  celebrated decision  of  the  House of Lords in the  case  of  Attorney General  v.  De  Keyser’s Royal  Hotel,  Limited  (1)  which involved   the  right  of  the  Crown  by  virtue   of   its prerogative,  to.  take possession of private  property  for administrative  purposes in connection with the  defence  of the realm, it was held by the House of Lords that the  Crown was  not entitled by virtue of its prerogative or under  any statute,  to  take  possession of property  belonging  to  a citizen   for   the  purposes  aforesaid,   without   paying compensation for use and occupation. It was argued by Sir John Simon, K. C., for the  respondents that:-               "  The  prerogative  has  been  defined  by  a               learned    author   as   ’the    residue    of               discretionary or arbitrary’ authority which at               any given time is legally left in the hands of               the  Crown’.  It is the ultimate  resource  of               the   executive,  and  when  there  exists   a               statutory  provision  covering  precisely  the               same  ground there is no longer any  room  for               the exercise of the Royal Prerogative.  It has               been  taken  away  by  necessary   implication

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             because  the two rights cannot  live  together               (See p. 518 of the Report). This  argument on behalf of the respondents appears to  have been  accepted  by Lord Dunedin, who delivered  the  leading opinion of the House in these terms:                 "  The prerogative is defined by a  learned               constitutional  writer  as ’  the  residue  of               discretionary or arbitrary authority which  at               any given time is legally left in the hands of               the Crown-’.  Inasmuch as the Crown is a party               to  every  Act  of Parliament  it  is  logical               enough  to  consider that when the  Act  deals               with  something which before the Act could  be               effected  by  the prerogative,  and  specially               empowers  the Crown to do the same thing,  but               subject  to conditions, the Crown assents  to               that,  and  by that Act,  to  the  prerogative               being curtailed ". (See p. 526 of the Report). This position has been recognised in Halsbury’s Laws (1)  [1920] A.C. 508. 519 of  England,  Volume 7, Third Edition, at p. 221,  in  these words:-  .lm15 " The prerogative is thus created and limited by the  common law, and the Sovereign can claim no prerogatives except such as the law allows, nor such as are contrary to Magna  Carta, or any other statute, or to the liberties of the subject. The courts have jurisdiction, therefore, to inquire into the existence or extent of any alleged prerogative..... . We  have......  thus  briefly set out  the  history  of  the ’genesis  and development of the Royal Prerogative of  Mercy because  Mr. Seervai has strongly emphasised that the  Royal Prerogative  of  Mercy  is wide and  absolute,  and  can  be exercised  at  any  time.   Very  elaborate  arguments  were addressed by him before us on this ’aspect of the matter and several  English and American decisions were cited.   In  so far  as  his  argument was that the  power  to  suspend  the sentence is a part of the larger power of granting pardon it may  be  relevant  to consider incidentally  the  scope  and extent of the said larger power; but, as we shall  presently point  out, the controversy raised by the  present  petition lies  within a very narrow compass; and so concentration  on the wide and absolute character of the power to grant pardon and over-emphasis on judicial decisions which deal  directly with  the  said question would not be very helpful  for  our present purpose.  In fact we apprehend that entering into an elaborate discussion about the scope and effect of the  said larger  power, in the light of relevant judicial  decisions, is likely to create confusion and to distract attention from the  essential features of the very narrow point that  falls to be considered in the present case.  That is why we do not propose  to enter into a discussion of the said topic or  to refer to the several decisions cited under that topic. Let  us now turn to the law on the subject as it obtains  in India  since the Code of Criminal Procedure was  enacted  in 1898.  Section 401 of the Code gives power to the  executive to suspend the execution of 67 520 the  sentence  or  remit  the  whole  or  any  part  of  the punishment  without conditions or upon any conditions  which the  person sentenced accepts.  Section 402 gives  power  to the executive without the consent of the person sentenced to commute  a sentence of death into imprisonment for life  and

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also other sentences into sentences less rigorous in nature. In  addition  the Governor-General had  been  delegated  the power  to  exercise them prerogative power  vesting  in  His Majesty.   Sub-section  (5)  of s. 401  also  provides  that nothing  contained in it shall be deemed to  interfere  with the right of His Majesty, or the Governor-General when  such right  is  delegated to him, to  grant  pardons,  reprieves, respites   or  remissions  of  punishment.   This   position continued  till  the  Constitution  came  into  force.   Two provisions were introduced in the Constitution to cover  the former  royal prerogative relating to pardon, and they  are Arts.  72 and 161.  Article 72 deals with the power  of  the President   to   grant  pardons,  reprieves,   respites   or remissions of punishment or to suspend, remit or commute the sentence  of any person convicted of any  offence.   Article 161  gives  similar power to the Governor of  a  State  with respect to offenses against any law relating to a matter  to which  the ex ecutive power of the State extends.   Sections 401  and  402  of the Code  have  continued  with  necessary modifications to bring them into line with Arts. 72 and 161. It  will  be seen, however, that Arts. 72 and 161  not  only deal with pardons and reprieves which were within the  royal prerogative  but have also included what is provided in  ss. 401  and 402 of the Code.  Besides the general power,  there is  also provision in ss. 337 and 338 of the Code to  tender pardon to an accomplice under certain conditions. In  this case we are primarily concerned with the extent  of the  power  of  pardon vested in the State  so  far  as  the Governor  is  concerned  by Art.  161  of  the  Constitution Article 161 is in these terms:               "1  The  Governor of a State  shall  have  the               power to grant pardons, reprieves, respites or               remissions of punishment or to suspend,  remit               or   commute  the  sentence  of   any   person               convicted of any offence against               521               any  law  relating to a matter  to  which  the               executive power of the State extends." Though  Art. 161 does not make any reference to Art.  72  of the  Constitution, the power of the Governor of a  State  to grant pardon etc. to some extent overlaps the same power  of the  President,  particularly in the case of a  sentence  of death.   Articles 72 and 161 are in very general terms.   It is,  therefore,  argued  that they are not  subject  to  any limitations  and  the respective area of exercise  of  power under these two Articles is indicated separately in  respect of  the  President and of the Governor of a  State.   It  is further  argued that the exercise of power under  these  two Articles is not fettered by the provisions of Arts. 142  and 145  of  the,  Constitution or by any  other  law.   Article 142(1) is in these terms:-               "  The  Supreme Court in the exercise  of  its               jurisdiction may pass such decree or make such               order  as  is  necessary  for  doing  complete               justice in any cause or matter pending  before               it, and any decree so passed or order so  made               shall be enforceable throughout the  territory               of  India in such manner as may be  prescribed               by  or under any law made by  Parliament  and,               until provision in that behalf is so made,  in               such  manner  as the President  may  by  order               prescribe." It  will be seen that it consists of two parts.   The  first part  gives  power  to this Court in  the  exercise  of  its jurisdiction  to pass such decree or make such order  as  is

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necessary for doing complete justice in any cause or  matter pending   before  it.   The  second  part  deals  with   the enforcement of the order passed by this Court.  Article  145 gives power to this Court with the approval of the President to  make  rules for regulating generally  the  practice  and procedure  of the Court.  It is obvious that the rules  made under  Art. 145 are in aid of the power given to this  Court under Art. 142 to pass such decree or make such order as  is necessary for doing complete justice in any cause or  matter pending  before it.  Rule 5 of 0. XXI of the Rules  of  this Court was framed under Art. 145 and is in these terms:-               "Where the- petitioner has been sentenced to a               522               term of imprisonment, the petition shall state               whether   the  petitioner   has   surrendered.               Unless   the  Court  otherwise   orders,   the               petition shall not be posted for hearing until               the   petitioner   has  surrendered   to   his               sentence." This  rule was, in terms, introduced into the Supreme  Court Rules  last  year and it only crystallized  the  preexisting practice  of this Court, which is also the practice  in  the High  Courts.   That  practice is based on  the  very  sound principle which was recognised long ago by the Full Bench of the  High Court of Judicature, North Western  Provinces,  in 1870, in the case of The Queen v. Bisheshar Pershad (1).  In that  case no order of conviction had been passed.   Only  a warrant had been issued against the accused and as the  war- rant.  had  been returned unserved a proclamation  had  been issued  and  attachment of the property of the  accused  had been  ordered, with a view to compelling him  to  surrender. The  validity of the warrant had been challenged before  the High  Court.   The  High  Court  refused  to  entertain  his petition  until he had surrendered because he was deemed  to be  in  contempt of a lawfully constituted  authority.   The accused  person in pursuance of the order of the High  Court surrendered  and  after he bad surrendered, the  matter  was dealt with by the High Court on its merits.  But as observed above the Rules framed under Art. 145 are only in aid of the powers  of this Court under Art. 142 and the  main  question that  falls  for  consideration is,  whether  the  order  of suspension  passed  by  the Governor under  Art.  161  could operate when this Court had been moved for granting  special leave  to  appeal from the judgment and order  of  the  High Court.   As  soon as the petitioner put in  a  petition  for special leave to appeal the matter became sub-judice in this Court.   This  Court under its Rules could insist  upon  the petitioner  surrendering  to  his sentence  as  a  condition precedent  to  his being heard by this  Court,  though  this Court could dispense with and in a proper case could  exempt him  from  the operation of that rule.  It is  not  disputed that  this Court has the power to stay the execution of  the sentence and to grant bail pending the (1)  Vol. 2, N.W.P. High Court Reports, P. 441. 523 disposal  of  the application for special leave  to  appeal. Rule  28 of 0. XXI of the Rules does not cover that  period, but  even  so the power of the Court under Art. 142  of  the Constitution  to make such order as is necessary  for  doing complete justice in this case was not disputed and it  would be open to this Court even while an application for  special leave is pending to grant bail under the powers it has under Art. 142 to pass any order in any matter which is  necessary for doing complete justice. But  it has been argued that, even as the terms of Art.  161

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are without any limitation, the provisions of s. 401 of  the Code of Criminal Procedure are also in similarly wide terms, and do not admit of any limitation’s or fetters on the power of the Governor; the Governor could, therefore, suspend  the execution  of  the sentence passed by the  High  Court  even during the period that the matter was pending in this Court. In other words, the same power of dealing with the matter of suspension of sentence is vested both in this Court as  also in the Governor.  This  immediately raises the question of the extent of  the power  under s.- 401 of the Code with respect to  suspension as  compared  with the powers of tile Court  under  s.  426, which  enables  the  Court pending  appeal  to  suspend  the sentence  or to release the appellant on bail.  It  will  be seen  from  the language of s. 426 of the Code  of  Criminal Procedure  dealing  with the power of  the  appellate  court that,  for reasons to be recorded in writing, the court  may order  that  the execution of the sentence be  suspended  or that if the accused is in confinement he may be released  on bail  or  on his own bond.  Section 401  occurs  in  Chapter XXIX,  headed " of suspensions, remissions and  commutations of sentences ". This Chapter, therefore, does not deal  with all the powers vested in the Governor under Art. 161 of  the Constitution, but only with some of them.  Section 426 is in Chapter  XXXI, headed as "of appeal, reference and  revision ".  Section  426,  therefore,  deals  specifically  with   a situation  in which an appeal is pending and  the  appellate ’court  has seisin of the case and is thus entitled to  pass such orders as 524 it  thinks  fit and proper to suspend a sentence.   It  will thus  be  seen that whereas Chapter XXIX, in  which  s.  401 occurs,  deals  with  a situation in which  pendency  of  an appeal  is not envisaged, s. 426 deals with a  situation  in which  pendency of an appeal is postulated. In other  words, Chapter XXIX deals with persons sentenced to punishment  for an  offence  simpliciter in general terms,  whereas  s.  426 deals  with a special case and therefore must be out of  the operation  of s. 401.  But it has been vehemently argued  by the -learned Advocate General that the words "at any  time" indicate that the power conferred by s. 401 may be exercised without any limitation of time.  In the context of s. 401  " any  time " can only mean after conviction.  It cannot  mean before  conviction,  because there cannot  be  any  sentence before  conviction.  The question then is: " Does  it  cover the entire period after the order of conviction and sentence even when an appeal is pending in the appellate court and s. 426 can be availed of by the appellant ?" It  will  be  seen that s. 426 is  as  unfettered  by  other provisions  of the Code as s. 401 with this difference  that powers  under s. 426 can only be exercised by  an  appellate court pending an appeal.  When both the provisions are  thus unfettered, they have to be harmonised so that there may  be no  conflict between them.  They can be  harmonised  without any  difficulty,  if s. 426 is held to deal with  a  special case  restricted to the period while the appeal  is  pending before  an  appellate  court while s.  401  deals  with  the remainder  of  the  period  after  conviction.   We  see  no difficulty in adopting this interpretation nor is there  any diminution of powers conferred on the executive by s. 401 by this interpretation.  The words " at , any time "  emphasise that  the power under s. 401 can be exercised without  limit of  time, but they do not necessarily lead to the  inference that  this  power can also be exercised while the  court  is seized of the same matter

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under s. 426. Turning  now  to  Arts. 142 and 161,  the  argument  of  Mr. Seervai  is that though this Court has the power to  suspend sentence or grant bail pending hearing of the 525 special  leave petition, that would not affect the power  of the  executive  to  grant a pardon, using the  term  in  its comprehensive  sense, as indicated above.  Reference was  in this  connection  made to Balmukand and others v.  The  King Emperor  (1).  That was a case where a convicted person  had moved His Majesty in Council for special leave to appeal and the  question  arose  as to the power of  the  executive  to suspend  the sentence.  In that connection Lord Haldane,  L. C., made the following observations:-               "With  regard  to  staying  execution  of  the               sentence of death, their Lordships are  unable               to  interfere.  As they have often said,  this               Board is not a Court of Criminal Appeal.   The               tendering  of advice to His Majesty as to  the               exercise  of  his prerogative of pardon  is  a               matter  for  the Executive Government  and  is               outside their Lordships’ province.  It is,  of               course,  open to the petitioners’ advisers  to               notify the Government of India that an  appeal               to  this Board is pending.  The Government  of               India  will  no doubt give due weight  to  the               fact  and  consider  the  circumstances.   But               their  Lordships  do  not think  it  right  to               express any opinion as to whether the sentence               ought to be suspended These observations were made because the Judicial  Committee of  the Privy Council, unlike the Supreme Court, was  not  a Court  of  criminal  appeal and therefore  the  question  of suspending  the operation of the sentence of death  was  not within  their  judicial purview.  The  granting  of  special leave  by the Privy Council was an example of the  residuary power  of the, Sovereign to exercise his judicial  functions by  way of his prerogative and therefore the petitioner  was left free in that case to approach the Government of  India, as  the  delegate ’of the Sovereign, to  exercise  the  pre- rogative power in view of the circumstance that an appeal to the Privy Council was intended.  The footnote to the  Report also contains the following:               "  The  petitioners  were  reprieved  by   the               Government of India pending the hearing of the               petition for leave to appeal". (see p. 134).                (1) (1915) 42, I. A. 133.               526 It  is  noteworthy that the reprieve granted  in  that  case covered  only the period until the grant or refusal  of  the petition for leave to appeal and did not go further so as to cover  the  period of pendency of the appeal  to  the  Privy Council,  unlike the order now impugned in this  case.   The power  which was vested in the Crown to grant special  leave to  appeal  to  convicted persons from India  has  now  been conferred  on  this Court under Art. 136.  The  power  under Art.  136  can be exercised in respect of  "  any  judgment, decree,  determination,  sentence or order in any  cause  or matter  passed  or  made by any court  or  tribunal  in  the territory  of India ". This wide and comprehensive power  in respect  of any determination by any court or tribunal  must carry  with  it  the  power to  pass  orders  incidental  or ancillary  to  the exercise of that power.  Hence  the  wide powers  given  to this Court under Art. 142 " to  make  such order  as  is necessary for doing complete  justice  in  any

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cause  or matter pending before it ". As already  indicated, the  power of this Court to pass an order of  suspension  of sentence  or to grant bail pending the disposal of the  app- lication  for special leave to appeal has not been  disputed and  could not have been disputed keeping in view  the  very wide terms in which Art. 142 is worded.  When an application for  special  leave to appeal from a judgment and  order  of conviction and sentence passed by a High Court is made, this Court  has been issuing orders of interim bail  pending  the hearing and disposal of the application for special leave as also  during the pendency of the appeal to this Court  after special  leave  has  been  granted.   So  if  Mr.  Seervai’s argument  is  correct that the pendency of a  special  leave application  in  this  Court  makes  no  difference  to  the exercise of the power by the executive under Art. 161,  then both the judiciary and the executive have to function in the same field at the same time.  Mr. Seervai however  contended that there could never be a conflict between the exercise of the  power by the Governor under Art. 161 and by this  Court under Art. 142 because the power under Art. 161 is executive power and the power under Art. 142 is judicial power 527 and  the  two  do not act in the same field.   That  in  our opinion  is over-simplification of the matter.  It  is  true that the power under Art. 161 is exercised by the  executive while the power under Art. 142 is that of the judiciary; but merely  because  one  power is executive and  the  other  is judicial,  it  does  not  follow  that  they  can  never  be exercised  in the same field.  The field in which the  power is  exercised does not depend upon the authority  exercising the  power but upon the subject-matter.  What is  the  power which  is being exercised in this case ? The power is  being exercised  by  the executive to suspend the  sentence;  that power  can be exercised by this Court under Art.  142.   The field  in  which the power is being exercised  is  also  the same,  namely, the suspension of the sentence passed upon  a convicted  person.   It is significant that  the  Governor’s power has been exercised in the present case by reference to the  appeal  which the petitioner intended to file  in  this Court.   There can therefore be no doubt that  the  judicial power under Art. 142 and the Executive power under Art.  161 can  within certain narrow limits be exercised in  the  same field.   The  question  that immediately arises  is  one  of harmonious   construction   of   two   provisions   of   the Constitution,  as  one is not made subject to the  other  by specific words in the Constitution itself As already pointed out,  Art. 161 contains no words of limitation; in the  same way,  Art.  142 contains no words of limitation and  in  the fields covered by them they are unfettered.  But if there is any  field  which  is  common  to  both,  the  principle  of harmonious construction will. have to be adopted in order to avoid  conflict  between the two powers.  It will  be seen that the ambit of Art. 161 is very much wider and it is only in a very narrow field that the power contained in Art.  161 is  also  contained  in  Art.  142,  namely,  the  power  of suspension of sentence during the period when the matter  is sub-judice  in  this Court.  Therefore on the  principle  of harmonious construction and to avoid a conflict between  the two powers it must be held that Art. 161 does not deal  with the suspension of sentence during the time that 68 528 Art.  142 is in operation and the matter is sub-judice    in this Court. In this connection it is well to contrast the language of s. 209(3)  and s. 295(2) of the Government of India Act,  1935.

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Section  209(3) gave power to the Federal Court to  order  a stay  of  execution in any case under appeal to  the  Court, pending the hearing of the appeal.  Section 295(2)  provided that  nothing in this Act shall derogate from the  right  of His Majesty, or of the Governor General if any such right is delegated   to  him  by  His  Majesty,  to  grant   pardons, reprieves,  respites  or remissions of punishments.  It  may have been possible to argue on the language of s.295(2) that the prerogative exercised by His Majesty transcended the power of the Federal Court under s. 209(3);but   when   we compare  the language of Arts. 72 and 161 with the  language of  s.  295(2) of the Government of India Act,  we  find  no words   like  "  Nothing  in  this  Constitution  "   or   " Notwithstanding anything contained in this Constitution " in them.   Such  words have been used in many articles  of  the Constitution:  (See for example, Art. 262(2) which  provides specifically for taking away by Parliament by law the  power of this Court in disputes relating to water and begins  with words"  Notwi thstanding anything in this  Constitution  "). The  absence therefore of any such qualifying words in  Art. 161 makes the power of this Court under Art. 142 of the same wide  amplitude within its sphere as the power conferred  on the  Governor  under Art. 161.  Therefore if  there  is  any field  where the two powers can be exercised  simultaneously the principle of harmonious construction has to be  resorted to in order that there may not be any conflict between them. On that principle the power under Art. 142 which operates in a very small part of the field in which the power under Art. 161  operates,  namely,  the  suspension  and  execution  of sentence during the period when any matter is sub-judice  in this  Court,  must be held not to be included in  the  wider power conferred under Art. 161. In  this  connection Mr. Seervai drew our attention  to  the power of nolle prosequi.  It may be mentioned 529 that  power is not analogous to the power of par. don though its  exercise may result in a case in a court coming  to  an end.  Similar powers are contained in ss. 333 and 494 of the Code  of  Criminal Procedure.  The fact  that  the  Advocate General  in  the one case and the Public Prosecutor  in  the other  can bring a prosecution to an end has in our  opinion no  bearing on the question raised in the present case.   In any  case  action  under s. 333 of the  Code  results  in  a discharge  only  and may leave it open, for  example,  to  a private  party  to  bring a complaint in  the  proper  court unless the presiding judge directs that the discharge shall amount  to an acquittal.  Under s. 494 the withdrawal  of  a case can only take place with the consent of the Court.   In any case these proceedings being not in the nature of pardon or  suspension or remission or commutation of sentence  have no bearing on the’ question before us. In the present case, the question is limited to the exercise by  the  Governor  of  his powers  under  Art.  161  of  the Constitution suspending the sentence during the pendency  of the special leave petition and the appeal to this Court; and the controversy has narrowed down to whether for the  period when this Court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period.  There can be no doubt that  it is  open to the Governor to grant a full pardon at any  time even  during  the  pendency of the case  in  this  Court  in exercise  of what is ordinarily called " mercy  jurisdiction ". Such a pardon after the accused person has been convicted by’  the  Court has the effect of completely  absolving  him from  all  Punishment  or disqualification  attaching  to  a

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conviction   for   a  criminal  offence.   That   power   is essentially vested in the head of the Executive, because the judiciary  has  no  such  ’mercy  jurisdiction’.   But   the suspension of the sentence for the period when this Court is in seizin of the case could have been granted by this  Court itself  If in respect of the same period the  Governor  also has  power-to suspend the sentence, it would mean that  both the judiciary and the executive would be 530 functioning  in the same field at the same time  leading  to the  possibility of conflict of jurisdiction.  Such  a  con- flict was not and could not have been intended by the makers of  the Constitution.  But it was contended by  Mr.  Seervai that the words of the Constitution, namely, Art. 161 do  not warrant the conclusion that the power was in any way limited or  fettered.   In  our opinion there is a  fallacy  in  the argument  in  so  far  as  it  postulates  what  has  to  be established, namely, that the Governor’s power was  absolute and  not fettered in any way. go long as the  judiciary  has the  power to pass a particular order in a pending  case  to that extent the power of the Executive is limited in view of the words either of ss. 401 and 426 of the Code of  Criminal Procedure  and  Arts. 142 and 161 of the  Constitution.   If that  is the correct interpretation to be put on  these  pro visions in order to harmonise them it would follow that what is  covered  in  Art. 142 is not covered  by  Art.  161  and similarly  what  is covered by s. 426 is not covered  by  s. 401.  On that interpretation Mr. Seervai .Would be right  in his  contention  that  there  is  no  conflict  between  the prerogative power of the sovereign state to grant pardon and the  power  of  the  courts to  deal  with  a  pending  cage judicially. In  this connection it may be relevant to deal with  another argument urged by Mr. Seervai in respect of the rule  framed by this Court under 0. 21, r. 5. He contended that Art.  145 under which rules have been framed by this Court is in terms subject to the provisions of any law made by Parliament, and he  also emphasised the fact that before the rules can  come into  force  they  have  to  obtain  the  approval  of   the President.   In other words, the argument is that the  rule- making  power  of  this Court is no  more  than  subordinate legislation, and so if there is a conflict between 0. 21, r. 5  and Art. 161 the rule must yield to the powers  conferred on  the Governor by Art. 161.  This argument  overlooks  the fact  that  in  substance and effect  the  conflict  is  not between  the  said rule and Art. 161 but  between  the  wide powers conferred on this Court by Art. 142 and similar  wide powers conferred on the Governor under Art. 161.  It would, 531 therefore, be fallacious to suggest that compliance with the rule  would become unnecessary because a higher power  under Art.  161 has been exercised by the Governor, and so in  the face of the order passed by the Governor there is no  longer any need to comply with the rule.  We have already  referred to  the  genesis of this rule and we have pointed  out  that though  the  rule may have been framed under  Art.  145  the source  of  the  power of this Court to  grant  bail  or  to suspend  sentence  pending hearing of  any  criminal  matter before  it is not the said rule nor Art. 145 but  Art.  142; that being so, what we have to decide in the present case is whether  having  regard to the width and  amplitude  of  the powers conferred on this Court and the Governor by Arts. 142 and  161 respectively it would not be reasonable and  proper to harmonise the said two articles in such a way as to avoid any  conflict between the said two powers.  In the  decision

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of  this question the legal character of the rules that  may be framed under Art. 145 cannot have any material bearing. In  this  connection it would be relevant to  consider  what would  be the logical consequence if Mr. Seervai’s  argument is  accepted.  In the present case the Governor’s order  has been  passed  even before the petitioner’s  application  for special leave came to be heard by this Court ; indeed it was passed before the said application was filed and the  reason for  passing the order is stated to be that  the  petitioner intended  to  file  an appeal before this  Court.   Let  us, however, take a case where an application for special  leave has  been filed in this Court, and on a motion made  by  the petitioner the Court has directed him to be released on bail on executing a personal bond of Rs. 10,000 and on furnishing two sureties of like amount.  According to Mr. Seervai, even if  such  an  order is passed by this Court  in  a  criminal matter  pending before it,  would be open to the  petitioner to move the Governor for suspension of his sentence  pending the hearing of his application and appeal before this  Court and  the  Governor may, in a  proper  case,  unconditionally suspend the sentence.  In other words, Mr. 532 Seervai  frankly conceded that, even in a  pending  criminal matter before this Court, an order passed by this Court  may in  effect  be  set aside by the  Governor  by  ordering  an unconditional  suspension  of the sentence  imposed  on  the petitioner concerned.  This illustration clearly brings  out the  nature of the controversy which we are called  upon  to decide in this case.  If Mr. Seervai’s argument is  accepted it would inevitably mean that by exercising his power  under Art.  161  the Governor can effectively  interfere  with  an order passed in the same matter by this Court in exercise of its powers under Art. 142.  It is obvious that the field  on which  both  the powers are operating is exactly  the  same. Should  the  sentence passed against an  accused  person  be suspended during the hearing of an appeal on the ground that an  appeal  is pending ? That is the  question  raised  both before  this Court and before the Governor.  In such a  case it  would  be idle to suggest that the field  on  which  the power  of  the Governor under Art. 161 can be  exercised  is different  from the field on which the power of  this  Court can-be  exercised under Art. 142.  The fact that the  powers invoked  are  different in character, one judicial  and  the other executive, would not change the nature of the field or affect   its   identity.    We  have   given   our   anxious consideration to the problem raised for our decision in  the present  case and we feel no hesitation in taking  the  view that  any  possible  conflict in exercise of  the  said  two powers can be reason. ably and properly avoided by  adopting a  harmonious  rule of construction.  Avoidance  of  such  a possible conflict will incidentally prevent any invasion  of the  rule  of law which is the very foundation of  our  Con- stitution. It  has been strenuously urged before us that the  power  of granting pardon is wide and absolute and can be exercised at any  time,  that  is to say, it can  be  exercised  even  in respect  of criminal matters which are sub judice;  and  the argument  is that the power to suspend sentence is  part  of the  larger  power  to  grant  pardon,  and  is  similar  in character and can be similarly exercised.  This argument  is fallacious; it ignores 533 the essential difference between the general power to  grant pardon  etc., and the power to suspend sentence in  criminal matters  pending  before  this  Court.   The  first  is   an

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exclusively  executive power vesting in the  Governor  under Art.161;  it does not vest in this Court; and so  the  field covered by it is exclusively subject to the exercise of  the said executive power; and so there can be no question of any conflict  in  such  a case;  conflict  of  powers  obviously postulates the existence of the same or similar power in two authorities; on the other hand, the latter power vests  both in this Court and the Governor, and so the field covered  by the  said power entrusted to this Court under Art.  142  can also be covered by the executive power of the Governor under Art. 161, and that raises the problem of a possible conflict between  the  two  powers.  That is  why  we  have  observed earlier  that  concentration or even undue emphasis  on  the character  and sweep of the larger power to grant pardon  is likely to distract attention from the essential features  of the  power  to  suspend sentence with  which  alone  we  are concerned in the present proceedings. As  a  result of these considerations we have  come  to  the conclusion   that  the  order  of  the   Governor   granting suspension  of  the sentence could only  operate  until  the matter became sub judice in this Court on the filing of  the petition  for special leave to appeal.  After the filing  of such  a  petition this Court was seized .of the  case  which would be dealt with by it in accordance with law.  It  would then  be for this ’Court, when moved in that behalf,  either to apply r. 5 of 0. XXI or to exempt the petitioner from the operation of that rule.  It would be for this Court to  pass such  orders as it thought fit as to whether the  petitioner should  be granted bail or should surrender to his  sentence or to pass such other or further orders as this Court  might deem  fit in all the circumstances of the case.  It  follows from  what has been said that the Governor ,had no power  to grant the suspension of sentence for the period during which the matter was sub judice in this Court. A great deal of argument was addressed to us as to 534 whether  the condition imposed by the Governor in his  order impugned in this case was or was not legal.  In the view we have  taken of the Governor’s power, so far as the  relevant period  is  concerned,  namely, after the  case  became  sub judice in this Court, it is not necessary to pronounce  upon that aspect of the controversy. In  the  result  the application dated April  21,  1960,  as amended  by the affidavit of July 6, 1960, praying that  the special  leave  petition  be  listed  for  bearing   without requiring  the petitioner to surrender in view of the  order of the Governor fails and is dismissed. KAPUR  J.-I  have  had the advantage of  reading  the  Order proposed  by  my Lord the Chief Justice, but I regret  I  am unable to agree with it and I proceed to give my reasons: In  this  petition  which  is  brought  for  exemption  from surrender  to  the  sentence imposed  on  the  petitioner  a question  of  great constitutional  importance  arises.  The petitioner submits that his sentence having  been  suspended by the order of the Governor of the     erstwhile  State  of Bombay, the rule made by this Court as to surrender which is a condition precedent to the hearing of a petition for leave to  appeal  against  the  judgment  of  the  High  Court  is inapplicable  to him and that it is a fit case in  which  he should  be  exempted from the operation of  the  rule.   The facts which have given rise to this petition are set out  in the  order.  of my Lord the Chief Justice and  need  not  be repeated here. The  decision  of  this petition depends  upon  the  nature, effect,  extent  and operation of the  powers  conferred  by

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arts. 142(1), 145 and 161 of the Constitution; how they  are to be construed and how and to what extent, if any, they are in  conflict  or  in accord with each  other.   It  will  be necessary  to delve into the history of the  prerogative  of pardons in England and America and see how far the law  laid down  by  courts of those countries and-the  practice  there followed  is  helpful  in discovering the  true  intent  and purpose of these articles of the Constitution. 535 Under the Indian Constitution the power to grant pardons  is vested  in  the  President  and  the  Governors  of  States. Article  72  deals  with the former and art.  161  with  the latter.   Article 72 which is in Part V, Chapter 1,  dealing with the Union Executive provides:- Art.  72. (1) " The President shall have the power to  grant pardons,  reprieves, respites or remission of punishment  or to  suspend,  remit or commute the sentence  of  any  person convicted of any offence. (a)............................................................... (b) in all cases where the punishment or sentence is for  an offence  against any law relating to a matter to  which  the executive power of the Union extends; (c)in all cases where the sentence is a sentence of death. (2)............................................................... (3) Nothing in sub-clause (c) of clause (1) shall affect the power  to  suspend,  remit or commute a  sentence  of  death exercisable by the Governor of a State under any law for the time  being in force Article 161 which is in Part VI  is  as follows :-               " The Governor of a State shall have the power               to  grant  pardons,  reprieves,  respites   or               remissions of punishment or to suspend,  remit               or   commute  the  sentence  of   any   person               convicted  of  any  offence  against  any  law               relating  to a matter to which  the  executive               power of the State extends"               Article 142(1) is as under:-               "  The  Supreme Court in the exercise  of  its               jurisdiction may pass such decree or make such               order  as  is  necessary  for  doing  complete               justice in any cause or matter pending  before               it ". Both  articles  72  and 161 give the  widest  power  to  the President or the Governor of a State as the case may be  and there are no words of limitation indicated in either of  the two articles.  It was argued that under arts. 142 and 145(1) of  the  Constitution certain powers are  conferred  on  the Supreme  Court and if the articles conferring powers on  the President  and the Governors are read along with  the  power given to the Supreme 69 536 Court  they  create  a  conflict and  therefore  to  give  a harmonious  interpretation  to all the four articles  it  is necessary to cut down the amplitude of the powers  conferred by  arts.  72  and 161 of the Constitution.   In  regard  to suspension  of  sentences it will be fruitful to  trace  the legislative history of the relevant powers of the  executive and the judiciary which arise for construction. In the Criminal Procedure Code of 1861 (Act XXV of 1861) the power  of  the  executive  was  confined  to  remission   of punishments and was contained in s. 54 which was as under:-               S.54. " When any person has been sentenced  to               punishment   for  an  offence,  the   Governor               General  of  India in Council,  or  the  local

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             Government,   may,   at  any   time,   without               conditions,  or upon any condition which  such               person  shall accept, remit the whole  or  any               part of the punishment to which he shall  have               been sentenced ". This  section was in Chapter III dealing with "  Preliminary Rules  "  which  included  among  other  things  passing  of sentences, the place of confinement of persons convicted and the power of remission of sentences by the Governor General. In Chapter XXX dealing with appeals by s. 421 the  appellate court  was  given  the power to  suspend  sentences  pending appeals and release which was in the following terms:- S.421.   "In any case in which an appeal is allowed,  the Appellate  Court  may, pending the appeal,  order  that  the sentence   be  suspended,  and  if  the  appellant   be   in confinement for an offence which is bailable, may order that he be released on bail ". Then  came  the Criminal Procedure Code of 1872,  Act  X  of 1872.  In Chapter XXIII dealing with execution of  sentences the power of the executive to remit punishment was contained in s. 322 which read as under :- S.322.    "  When  any  person  has  been  sentenced   to punishment for an offence, the Governor General of India  in Council,  or the Local Government, may at any time,  without conditions,   or  upon  any  conditions  which  the   person sentenced accepts, remit the 537 whole  or  any part of the punishment to which he  has  been sentenced " And the power of suspension of sentence pending appeals  and release  and  bail  was contained in s. 281,  a  section  in Chapter XX dealing with appeals which was in the following terms:- S.281.   "In any case in which an appeal is allowed,  the Appellate  Court  may, pending the appeal,  order  that  the sentence   be  suspended,  and,  if  the  appellant  be   in confinement for an offence which is bailable, may order that he be released on bail. The  period during which the sentence is suspended shall  be omitted in reckoning the completion of the punishment ". The Criminal Procedure Code was reenacted in 1882 being  Act X  of  1882.  The power to suspend or  remit  sentences  was contained in a separate chapter, viz., Chapter XXIX headed " Suspensions, Remissions and Commutations of Sentences ". The relevant provision was s. 401 :- S.401.    "  When  any  person  has  been  sentenced   to punishment for an offence, the Governor General in  Council, or   the  Local  Government,  may  at  any   time,   without conditions,   or  upon  any  conditions  which  the   person sentenced accepts, suspend the execution of his sentence, or remit  the whole or any part of the punishment to  which  he has been sentenced. Nothing  herein contained shall be deemed to interfere  with the  right  of  Her Majesty to  grant  pardons,’  reprieves, respites, or remissions of punishment". The  power  of  the appellate courts as  to  suspension,  of sentences  pending appeals was given in s. 426 which was  in Chapter  XXI  dealing with appeals and that section  was  as follows :-               " 426.  Pending any appeal by a convicted per-               son,  the Appellate Court may, for reasons  to               be  recorded by it in writing order  that  the               execution  ,of the sentence or order  appealed               against be suspended               538

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and, if he is in confinement, that he be released on bail or on his own bond. The  power conferred by this section on an  Appellate  Court may  be exercised also by the High Court in the case of  any appeal by a convicted person to a Court subordinate thereto. When the appellant is ultimately sentenced to  imprisonment, penal servitude or transportation, the time during which  he is  so released shall be excluded in computing the term  for which he is so sentenced ". A new Criminal Procedure Code was enacted in 1898, a portion of which was subsequently amended.  The section dealing with powers  of suspension or remission of sentence is 401  which reads as under:-               " 401. (1) When any person has been sentenced               to  punishment  for an offence,  the  Governor               General in Council or the local Government may               at  any  time without conditions or  upon  any               conditions which the person sentenced accepts,               suspend the execution of his sentence or remit               the  whole  or any part of the  punishment  to               which he has been sentenced............               The  original sub-section (5) of this  section               was :               "(5)Nothing  herein contained shall be  deemed               to interfere with the right of His Majesty  or               of  the Central Government when such right  is               delegated  to it to grant pardons,  reprieves,               respites or remissions of punishment ". And this sub-section was repealed by the Adaptation of  Laws Order,  1950.  The words Governor General in Council or  the Local  Government  were suitably amended  with  the  various constitutional changes. The  corresponding section of appellate courts is  contained in a. 426 which is in Chapter XXXI dealing with appeals etc. The relevant portions of this section when quoted are as under:-               "  426. (1) Pending any appeal by a  convicted               person,  the Appellate Court may, for  reasons               to  be recorded by it in writing,  order  that               the   execution  of  the  sentence  or   order               appealed against be suspended and, also, if he               is in confinement, that he be released on bail               or on his own bond.               539               (2) (B) Where a High Court is satisfied that a               convicted  person  has  been  granted  special               leave  to appeal to the Supreme Court  against               any sentence which the High Court has  imposed               or  maintained, the High Court may, if  it  so               thinks fit, order that pending the appeal  the               sentence   or   order  appealed   against   be               suspended,  and  also, if such  person  is  in               confinement,  that he be released on  bail  ".               (This subsection was added later). It may be mentioned that in the Code of 1861 the power given to the Governor General was to remit punishment to which  an accused person was sentenced and the power of the  appellate court  was  to suspend the sentence pending appeal  in  non- bailable offenses and to release on bail in bailable  cases. In  the Code of 1872 also the power of the Governor  General and of the local Government was one of remission of  punish- ment and the power of the appellate court was of  suspension of  sentences pending the appeal.  In s. 401 of the  Act  of 1882 the legislature chose to use the words " suspension  of

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the  execution of a sentence or remit the whole or any  part of  punishment ". The power was discretionary and  there  is nothing to indicate that this power was in any way  limited. But  the power given to the appellate court was  differently worded  from what was in the previous Codes in that  now  it was  necessary for the Courts to record reasons  emphasising that  the two powers-the one exercised by the executive  and the  other  exercised  by the  judiciary-were  two  separate powers,  no  doubt,  operating  for  the  same  purpose  but exercised  on  different  considerations  and  in  different circumstances.  Of course this does not mean that the courts did not exercise their power judicially previous to the  Act of 1882. In  the Act of 1898 also, which is still the law,  the  same power  of  suspension  of  the  execution  of  sentences  or remission  of punishments is mentioned in s. 401 and  in  a. 426  giving the powers of the appellate courts the  words  " for reasons to be recorded in writing " are repeated showing that the legislature wanted to make 540 it clear about the essential difference in the nature of the exercise of the power conferred on the executive and on  the judiciary.  The words " at any time " in s.  401  are   very wide and show the plenary nature of the power. In the Government of India Acts previous to the Act of  1935 nothing  was said about the power of the Crown or the  power of  the Governor General as a delegate of the Crown, and  it cannot  be  said that the Indian legislature,  whatever  its powers,  could affect the King’s prerogative  and  therefore any  provision  in the Criminal Procedure  Code  was  wholly impuissant  as  to the King’s prerogative of  pardons.   See Henrietta.  Muir Edwards v. Attorney General of Canada  (1). Provisions such as s. 401(5) are by way of abundant caution. Section  295 of the Constitution Act of 1935 was  a  special provision as to the power of the executive to suspend, remit or  commute  a sentence of death.  Subsection  (1)  of  that section  provided that the power of the Governor General  in his discretion were the same as were vested in the  Governor General  in Council immediately before the  commencement  of Part III of that Act but save as that no authority in  India outside  a  province  had any power  to  suspend,  remit  or commute the sentence of any person convicted in a  province. Sub-section (2) was a saving clause and it provided :- S.295. (2) " Nothing in this Act shall derogate from  the right  of  His Majesty, or of the Governor General,  if  any such  right  is delegated to him by His  Majesty,  to  grant pardons, reprieves, respites or remissions of punishment." Thus  the power of the King or of the Governor General as  a delegate  to  grant  suspension  remission  or  commutations remained unaffected by the introduction of a federal  system with  division  of  subjects  between  the  Centre  and  the Provinces.   This section was in the part dealing  with  the provisions  as  to certain legal matters.   Thus  under  the Government  of  India  Act  the  Governor  General  in   his discretion had the power (1)[1930] A.C. 124, 136. 541 to remit etc. sentences of death and Governors of  provinces had  the  power  in  regard to all  sentences  passed  in  a province  but  the  power of the King and  of  the  Governor General as a delegate remained unaffected by the first  sub- section of the section.  Thus upto the coming into force  of the  Constitution  the exercise of  the  King’s  prerogative remained unaffected, was plenary, unfettered and exercisable as hitherto.

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Historically  in England the King as the autocratic head  of the Government always had the power to pardon. This was a part " of that special preeminence which the King hath  over  and  above  all other persons  and  out  of  the ordinary  course  of the common law, in right of  his  royal dignity ". Bl.  Comm. (i). 239. A  pardon  is  said by Lord Coke to be a "  work  of  mercy; whereby  the  King,  either before  attainder,  sentence  or conviction   or   after  forgiveth   any   crime,   offence, punishment, execution, right, title, debt or duty,  temporal or ecclesiastical ". 3 Inst. 233. The common law is thus stated in Hale’s Pleas of the  Crown, Vol. 2, Chapter 58, page 412:               "Reprieves  or stays of judgment or  execution               are of three kinds, viz. :               1.    Ex mandate regis,               2.    Ex  arbitrio  judicis.   Sometimes   the               judge               reprieves before judgment, as where he is  not               satisfied with the verdict, or the evidence is               uncertain,  or the indictment insufficient  or               doubtful whether within clergy; and  sometimes               after  judgment, if it be a small felony,  the               out  of  clergy, or in order to  a  pardon  or               transportation.  Prompt.  Just 22b, and  these               arbitrary  reprieves may be granted  or  taken               off  by  the justices of goal  delivery,  also               their  sessions be adjourned or finished,  and               this by reason of common usage, 2 Dyer,  205a,               73 Eng.  Reprint, 452.               3.Ex necessitate legis.  Which is in  case               of  pregnancy,  where a woman  is  convict  of               felony  or treason Blackstone  thus  expresses               this prerogative:               "  The only other remaining ways  of  avoiding               the  execution  of  the  judgment  are  by   a               reprieve  or a pardon; whereof the  former  is               temporary only, the latter permanent.               542 1.A  reprieve  (from  reprendre, to  take  back)  is  the withdrawing  of a sentence for an interval of time;  whereby the execution is suspended.  This may be, first ex  arbitrio judicis;  either  before or after judgment ;  as  where  the judge is not satisfied with the verdict, or the evidence  is suspicious,  or  the indictment is insufficient,  or  he  is doubtful whether the offence be within clergy or sometime if it be a small felony, or any favorable circumstances  appear in the criminal’s character, in order to give room to  apply to  the Crown for either an absolute or conditional  pardon. These arbitrary reprieves may be granted or taken off by the justices  of  gaol  delivery,  although  their  session   be finished,  and their commission expired; but this rather  by common usage, than of strict right. Reprieve may also be ex necessitate legis; as, where a woman is capitally convicted and pleads her pregnancy; though this is  no cause to stay the judgment, yet it is to respite  the execution  till she be delivered.  This is a mercy  dictated by the law of nature in favourem prolis ". Bk. 4, chapt. 31, pp. 394, 395. After  imposition of the sentence execution of the  sentence may  be suspended for a time which is known as  respite  and may  be  granted  by the king or by  the  Court.   Orfield’s Criminal Procedure from Arrest to Appeal, p. 529. As  the  possessions of the kings of En  land  expanded  and several  now  colonies came under their sway  the  power  of

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pardon  which  the kings exercised came to be  exercised  by their  representatives in the colonies and in  America  from them it went to the State Governors and to the President for federal  offenses.   The same process was followed  in  this country  as  the various enactments and provisions  set  out above show.  It may be repetitive but it cannot be  suffici- ently emphasised that both the power of pardon and the power of  reprieve which is a part of the all comprehensive  power of  pardon  are executive acts and can be exercised  at  any time  and  in  any  circumstances  untrammeled  and  without control and in absolute 543 freedom  except that prescribed by the Constitution;  Craies on Statute Law, page 483. In  the Constitution the power of the President is the  same as  it was in s. 295 of the Constitution Act of 1935 and  is unaffected  in  regard  to sentence of death  by  the  power conferred  under  art.  161.   The  power  of  the  Governor contained in art. 161 also is of the widest amplitude as the words  of  the article which have been  quoted  above  would show.   In  construing a constituent or an  organic  Statute such  as  the  Constitution  that  interpretation  must   be attached which is most beneficial to the widest amplitude of its  powers;  British  Coal Corporation v.  King  (1).   The Judicial  Committee  in Henrietta Muir Edwards  V.  Attorney General of Canada  (2) said:-               " Their Lordships do not conceive it to be the               duty  of this Board-it is certainly not  their               desire  to out down the provisions of the  Act               by      a      narrow      and       technical               construction........................... ". In America the exercise of the power of pardon has been held to  be governed by the same principles as are applicable  to the exercise of the King’s power of mercy under the  English Constitution.  In United States V. Wilson (3) Marshall’,  C. J., referring to the exercise of this power said :               "  As this power had been exercised from  time               immemorial  by  the executive of  that  nation               whose  language is our language, and to  whose               judicial  institutions  ours  bears  a   close               resemblance;   we   adopt   their   principles               respecting  the  operation and  effect  of  a’               pardon,  and  look into their  books  for  the               rules prescribing the manner in which it is to               be used by the person who would avail  himself               of it".               Wayne, J., in Ex parte Wells (4) said:               " We still think so, and that the language  in               the  Constitution,  conferring  the  power  to               grant reprieves and pardons, must be construed               with  reference to its meaning at the time  of               its  adoption.  At the time of our  separation               from Great Britain, that power had               (1) [1935] A.C. 500.               (3)8 L. Ed. 640, 643, 644.               70               (2)   [1930] A.C. 124, 136.               (4)   15 L. Ed. 421, 424.               544                been  exercised  by the King,  as  the  Chief               Executive.   Prior  to  the  Revolution,   the               Colonies,  being in effect under the  laws  of               England, were accustomed to the   exercise  of               it in the various forms, as they may be  found               in the English books.  They were of course  to

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             be  applied  as occasions occurred,  and  they               constituted  a  part of the  jurisprudence  of               Anglo-America.   At that time of the  adoption               of  the Constitution, American statesmen  were               conversant with the prerogatives exercised  by               the  Crown.   Hence when the  words  to  grant               pardons  were used in the  Constitution,  they               convey to the mind the authority as  exercised               by  the English Crown, or its  representatives               in the Colonies.  At that time both Englishmen               and Americans attached the same meaning to the               words  "  pardon ". In  the  convention  which               framed the Constitution, no effort was made to               define or change its meaning, although it  was               limited in cases of impeachment.                We  must then give the word the same  meaning               as  prevailed here and in England at the  time               it found a place in the Constitution.  This is               in conformity with the principles laid down by               this  court  in Cathcart v. Robinson,  5  Pet.               264,  280;  and in Flavell’s case, 8  Watts  &               Serg. 197; Attorney General’s brief" In Ex parte Grossman (1) Taft, C. J., said:- .lm15 "..................................................... .............  The  language of the Constitution  cannot  be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed  and  adopted.   The statesmen  and  lawyers  of  the Convention,  who  submitted it to the  ratification  of  the Convention of the thirteen states, were born and brought  up in  the atmosphere of the common law, and thought and  spoke in  its vocabulary.  They were familiar with other forms  of government  recent  and  ancient,  and  indicated  in  their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental  law in a compact draft, they expressed them  in terms of the common law, (1)  69 L. Ed 527, 530, 532, 535. 545 confident   that  they  could  be  shortly   and   earnestly understood ". According  to the American as also Indian  Constitution  the power  as  given  to the President is not  to  reprieve  and pardon  but that he shall have power to grant reprieves  and pardons  for  offenses against the United States  except  in cases of impeachment.  Wayne, J., in Ex parte Well8 (1-)  at page 425 has explained the difference between the meaning of these two expressions.  "The first convoys only the idea  of an  absolute power as to the purpose or object for which  it is given.  The real language of the constitution is general, that is, common to the class of pardons known in the law  as such  whatever they may be by their denomination.   We  have shown  that  conditional pardon is one of  them.   A  single remark from the power to grant reprieves will illustrate the point.   That  is not only to be used to  delay  a  judicial sentence  when the President shall think the merits  of  the case  or some cause connected with the offender may  require it,   but   it  also  extends  to   cases   ex   necessitate legis  ...................... Though the reprieve in  either case  produces delay in the execution of a sentence  ",  the reprieves  in  the two cases are different  in  their  legal character  and different as to the causes which  may  induce the exercise of the power to reprieve. In  India also the makers of the Constitution were  familiar

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with  English institutions and the powers of  English  Kings and the exercise of their power both by the Governor General and the Governors of British India and of its provinces.  It will  be legitimate to draw on English law for  guidance  in the  construction of the articles dealing with the power  of the  President  and  of the Governor in  regard  to  pardons including the other forms of clemency comprised in. the  two articles.   It  will not be inappropriate to  say  that  the framers  of the Indian Constitution were not  only  familiar and trained in British Jurisprudence but were familiar  with the  American  Constitution  and they  were  drafting  their Constitution in English language and therefore to draw  upon the American parallel would be wholly legitimate. (1)  15 L. Ed. 421, 425. 546 The  history  of the prerogative of  pardons  and  reprieves shows  that  the  power of the executive in  the  matter  of pardons   and   reprieves  and  other   forms   of   pardons irrespective of the name used is of the widest amplitude and is plenary in nature and can be exercised at any time  after the  commission of the offence.  The power of the  executive is an act of grace and clemency.   It  is  a  sovereign   or governmental power which ina monarchy is inherent in  the King and in a Republicin  the  State or  the  people  and which  may, by the Constitution, be conferred on an  officer or  a department.  It is an executive power of the  Governor and  it is the same as was exercised by the colonial  Gover- nors in America 67 C. J. S. 565. Wayne, J., in the matter of Ex parte Wells (1) has described it  as an act of mercy and an act of clemency applicable  to pardons  of  every kind and form.  Field, J.,  in  Ex  parte Garland  (2) termed it the benign prerogative of mercy.   It is  the power for avoiding the execution of the judgment  by reprieve  or pardon whereof the former is temporary and  the latter permanent.  According to Willoughby’s Constitution of America, Vol.  III p. 1492:- "  The power to pardon includes the right to remit  part  of the  penalty as well as the whole and in either case it  may be made conditional.  The power may be exercised at any time after  the  offence is committed, that  is,  either  before, during,  or  after legal proceedings for punishment  ". Ex parte Garland 4 Wall. 333. Reprieve  whereby the execution is suspended is  merely  the postponement  of  the execution for a definite time  and  it does  not  and cannot defeat the ultimate execution  of  the judgment but merely delays it.  It is extended to a prisoner in  order  to  afford him an  opportunity  to  procure  some amelioration  of  the sentence which has been  imposed  upon him.  But power to reprieve is an executive act and the sole judge  of the sufficiency of facts and of the  propriety  of the action is the Governor.  No other department in  America has  control  over his actions.  The pardoning power  is  in derogation of the law and the power of pardoning (1) 15 L. Ed. 421, 424. (2) 18 L. Ed. 366, 370 & 371. 547 when conferred on the head of the executive is an  executive power  and function.  The pardon may be conditional and  the grant of a conditional pardon is not illegal. It has been held that the power of pardon is not subject  to legislative control ; Ex parte Garland (1) ; nor is it  open to  the legislature to change the effect of ’pardon;  United States  v.  Klein (2).  The executive may grant  pardon  for good  reasons or bad or for any reasons at all; its  act  is final and irrevocable.  The Courts have no concern with  the

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reasons which actuated the executive.  This power is  beyond the  control  of the judiciary; 39 Am.  Jur.  545,  ss.  43; Horwitz v. Connor (3). Thus in England the exercise of the power by the King is the exercise  of  the power of mercy.  The power is  plenary  in nature  and unfettered and as far as  constitutional  powers are  concerned  it can be exercised at any  time  after  the commission  of  the offence.  In America the  power  of  the executive  under  the Federal or State Constitution  is  the same  in its nature as that exercised by the  representative of the English Crown in America in colonial times. 67 C.  J. S. 565.  It has been said that executive clemency exists  to afford relief from undue harshness or individual mistake  in the  operation  or enforcement of the criminal law.   It  is essential in popular Governments as well as in monarchies to vest in some other party than courts the power to ameliorate or  avoid particular criminal judgments and the exercise  of this  power is the exercise by the highest executive of  his full  discretion  and with the confidence that he  will  not abuse it. In  Ex parte Garland (1), it was held that  the  President’s pardon was not subject to legislative control,said     Field, J., " the law thus conferred is unlimited .  ............... It  extends  to every offence known to the  law and  may  be exercised       at       any      time       after       its commission..............................  The power  of  the President  is not subject to legislative control.   Congress can neither limit the effect not exclude from its effect any class of offenders.  The benign prerogative (1) 18 L. Ed. 366, 370 & 371. (2) 20 L. Ed. 519. (3)  6 C. L. R. 1497. 548 of  mercy  resposed  in  him  cannot  be  fettered  by   any legislative  restriction.......... In Ex parts Grossman  (1) it  was held that there was no difference between the  power of  the President and that of the king in regard  to  pardon and at page 535 it was observed by Taft, C. J.               "Executive  clemency exists to  afford  relief               from undue harshness or evident mistake in the               operation or enforcement of the criminal  law.               The administration of justice by the courts is               not  necessarily  always  wise  or   certainly               considerate   of   circumstances   which   may               properly mitigate guilt.  To afford a  remedy,               it  has  always  been  thought  essential   in               popular governments, as well as in  monarchies               to vest in some other authority than the court               power   to  ameliorate  or  avoid   particular               criminal judgment.  It is a check intrusted to               the Executive for special cases ". That case also laid down that the exercise of-the  executive power  to the extent of destroying the deterrent  effect  of judicial punishment would be to pervert it but whosoever  is to  make  the  power useful must  have  full  discretion  to exercise  it  and that discretion is vested in  the  highest officer in the nation. In Biddle v. Vuco Perovich (2), Holmes., J., in dealing with pardons said:-               ,,  Pardon is not a private act of grace  from               an individual happening to possess power.   It               is a part of the constitutional scheme.   When               granted   it  is  the  determination  of   the               ultimate  authority  that the  public  welfare               will be better served by inflicting less  than

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             what the judgment fixed" and  in  Sorrell8 V.  United State8 (3) the  observation  of Holmes,  J., were followed and it was held the  clemency  is the function of the executive and it is the function of  the courts  to  construe  the Statute and not to  defeat  it  as construed. A review of these American cases shows that the courts there have  accepted  that the English principles  respecting  the extent, operation and effect of pardons and reprieves  apply in America; that the power which (1) 65 L. Ed. 527, 530, 532, 535. (2) 71 L. Ed. 1161, 1163. (3) 77 L. Ed. 413 at P. 421. 549 was exercised by the king and by delegation by the  colonial Governors  is now exercised by the highest executive in  the land  and  that  a pardon which includes a  reprieve  and  a respite may variously be described as an act of clemency, an act of mercy, an act of grace, an exercise of the  sovereign or  governmental power or the determination of the  ultimate authority.   Therefore  the  principles  which  govern   the exercise  of this executive power are quite  different  from those which govern the exercise of the power of the  courts. It  may  also be pointed out that the American  courts  have frowned  upon  any  interference by the  courts  or  by  the legislature with the extent and effect of the prerogative of the  people vested in the President in the exercise  of  his power  of benign mercy.  It was so held in Ex parte  Garland (1) and United states v. Klein (2).  In the former case  the President bad given a pardon to rebels who had taken part in the  civil war against the forces of the federation and  the legislature  had reversed that pardon and it was  held  that pardon  was  not subject to legislative control and  in  the latter  which  was  a conditional pardon the  power  of  the legislature was held not to be exercisable. The  power  of the executive can be exercised at  any  time. This is so in England, in America and in India. The King  ", said Lord Coke, " can forgive any crime, offence, punishment or execution either before attainder, sentence or conviction or after " ; 3 Insti. 233 ; Hawkins’ Pleas of the Crown  bk. 2,  Chapt.37. In the Indian Statute the words " any  time  " are expressly used in s. 401 of the Criminal Procedure  Code and in England it is an accepted practice that the Crown can pardon  before or after conviction or before trial.  As  far as  the power of pardon before trial is concerned it can  be exercised  by entering nolle prosequi which is also the  law in  India.  Under a. 333 of the Code of  Criminal  Procedure the  Advocate  General can, in cases tried before  the  High Court, enter a nolle prosequi and this power is absolute and not subject to the control of the court.  This section makes it clear that before a verdict is given the Advocate-General may inform the 18 L. Ed. 366, 370 & 371        (2) 20 L. Ed. 519. 550 court  on behalf of the Government that he will not  further prosecute  the  defendant upon the charge and  he  shall  be discharged  but this discharge does not amount to  acquittal unless the Judge otherwise directs.  We are informed that in the city of Bombay the power of the Advocate-General extends to oases tried by the court of Session.  There is no  chance of private complainant being able to restart the proceedings because  the  Crown  can  always  take  over  any   criminal proceeding  and then enter a nolle prosequi.  Similarly  the power  is  given  in  regard to  other  courts  of  original jurisdiction to the Public Prosecutor under s. 494, Criminal

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Procedure  Code, but that power is not as absolute as it  is in  the case of s. 333 because it is subject to the  consent of the Court. In the absence of constitutional restrictions the power-  of pardon and reprieve whether conditional or unconditional may be exercised at any time after the commission of the offence either  before legal proceedings are taken or  during  their pendency  or after an appeal is filed and while the case  is pending in the appellate court.  It was so held in Ex  parte Grossman  (1) ; Ex parte Garland (2) and so stated in 67  C. J.  S. 572.  In the absence of a limitation imposed  by  law there  is no limit to the period of reprieve and  successive reprieves  where a period is prescribed are not illegal:  67 C.   J. S. p. 582. A  case  where  the  power of  reprieve  was  exercised  and operated  during the pendency of the  appellate  proceedings is,  Rogers  v. Peck (3).  There one Mary Mabel  Rogers  was granted  reprieve  to permit her to appeal  to  the  Supreme Court  of the United States from the order of  the  District Court denying habeas corpus.  She was convicted of murder at the  December,  term  1903  and  was  confined  in  solitary confinement until February 3. 1905. on which day she was  to suffer  the  penalty  of death, On  February  1,  1905,  the Governor  reprieved the execution of sentence until June  2, 1905.  On April 29, 1905, she presented a petition for a new trial  to the Supreme Court of the State.  The petition  was admitted on May 5,1905, and fixed for hearing on (1) 69 L. Ed. 527, 530, 532. 535. (2) 18 L. Ed. 366,370 &,371. (3) 50 L. Ed. 256. 551 May  10, 1905, but was dismissed on May 30, 1905, and a  new trial  was refused.  On June 1, 1905, the execution  of  the sentence  was further reprieved by the Governor  until  June 23,  1905.  Thereupon she filed her petition in the  Federal Court  for a writ of habeas corpus which was dismissed.   On that  date the Governor further reprieved the  execution  of the  sentence  until December 8, 1905.  The  appeal  to  the Supreme Court of the United States was admitted on June  22, 1905,  but the appeal was finally dismissed on November  27, 1905.  One of the grounds of appeal in the Supreme Court was that the Governor, by giving the reprieve, issued his  order requiring  the execution while proceedings were  pending  in the  court  of the United States for her  relief  on  habeas corpus and therefore the order was null and void and another ground was the failure of the Supreme Court of the State  to grant  a  stay and fixing a date for  execution.   Both  the grounds were overruled and it was held that the reprieve was to  allow  the cause to be heard on appeal  in  the  Supreme Court and that the order of the Governor was not against due process  clause and when the Governor had given  a  reprieve beyond  the hearing in the State Supreme Court there was  no occasion  for  the court to’ act in the matter.   This  case shows that the power of reprieve is exercisable even  during the  period  that proceedings are pending in  an.  appellate court. The argument in opposition to the submissions of the learned Advocate-General   was  that  although  the  power  of   the executive  to  grant  pardon or reprieve  or  suspension  of sentence was absolute and could be exercised at any time yet there was a statutory as well as a constitutional limitation on  the exercise of this power which excluded the  power  of the  executive for the period when the case of  a  defendant had  been  brought before the Supreme Court  or  before  any other  appellate court as the case may be.  For  the  latter

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reference was made to a. 426 of the Criminal Procedure  Code which  gives  the  power to appellate courts  to  suspend  a sentence  pending  an appeal for reasons to be  recorded  in writing and as to the former arts. 71 552 142 and 145 of the Constitution were referred to.    Article 142  confers on the Supreme Court the power to  do  complete justice  in any cause or matter pending before it  and  art. 145 gives to; the Supreme Court power to make rules with the approval of the President but subject. to any law ;Which the Parliament  may  pass.   Under art. 145 which  is  the  rule making  power  of this court, the court has made  two  rules which  are relevant for the purpose of this appeal and  they are  Order 21, Rule 5 and Order 21, Rule 28 and when  quoted they are as follows:- O.21, R. 5 " When the petitioner has been sentenced to  a term  of imprisonment, the petition shall state whether  the petitioner  has  surrendered.  Unless  the  Court  otherwise orders,  the petition shall not be posted for hearing  until the petitioner has surrendered to his sentence ". O.21,  R. 28 " Pending the disposal of any  appeal  under these  Rules the Court may order that the execution  of  the sentence  or order appealed against be stayed on such  terms as the Court may think fit ". Rule 5 is a salutory rule in that the court will not hear  a case  in which the party is in contempt of the order of  the subordinate court but that rule is in express words  subject to  the discretion given to this court under art. 136  which states:-               " Notwithstanding anything in this Chapter the               Supreme  Court may, in its  discretion,  grant               special leave to appeal........... Rules  made  under  art.  145  are  subordinate  legislation because  they are subject to any law made by Parliament  and can  be  changed  by  the court with  the  approval  of  the President.  The change of an article, on the other hand,  is to be in accordance with the provisions of the  Constitution and  therefore merely because this Court has also the  power under the rules to grant suspension of a sentence and it has made rules that it will not entertain any petition for leave to  appeal unless the petitioner surrenders himself  to  the sentence  cannot  override  the provisions  of  art.  161  ; because if there is irresolvable conflict between 553 the  article  and the rules then the rules  must  give  way, being subordinate legislation. It was argued that the power of the Court under articles 142 &  145  and  of the Governor under  art.  161  are  mutually inconsistent  and therefore the power of the  Governor  does not extend to the period the appeal is pending in this Court because  law does not contemplate that two  authorities,  i. e., executive and judicial should operate in the same  field and  that  it  is necessary that this  Court  should  put  a harmonious  construction  on  them.   Article  142  of   the Constitution, it was con. tended, is couched in language  of the  widest amplitude and comprises powers of suspension  of sentences etc.  The argument that the power of the executive to suspend the sentence under art. 161 and of the  judiciary to  suspend the sentence under art. 142 and art. 145 are  in conflict ignores the nature of the two powers.  No doubt the effect  of both is the same but they do not operate  in  the same  field  ; the two authorities do not act  on  the  same principles  and in exercising their powers they do not  take the   same  matters  into  consideration.    The   executive

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exercises  the  power in derogation of the  judicial  power. The executive power to pardon including reprieve, suspend or respite a sentence is the exercise of a sovereign or govern- mental power which is inherent in the State power.  It is  a power of clemency, of mercy, of grace " benign prerogative " of  the  highest officer of the State and may  be  based  on policy.   It  is to be exercised on the ground  that  public good will be as well or better promoted by suspension as  by the execution but it is not judicial process.  The  exercise of  this  power  lies  in  the  absolute  and   uncontrolled discretion of the authority in whom it is vested. The  power  of  the courts to suspend  sentences  is  to  be exercised on judicial considerations.  At Common Law, it was held in Ex parte U. S. (1) courts possessed and asserted the right to exert judicial discretion in the enforcement of the law to temporarily suspend either the imposition of sentence or  its execution when imposed to the end that pardon  might be procured or (1)  61 L. Ed. 129 at P. 141. 554 that  the  violation  of  law in  other  respects  might  be prevented.   It was also held that a Federal District  Court exceeds  its power by ordering that execution of a  sentence imposed   by  it  upon  a.  plea  of  guilty  be   suspended indefinitely during good behavior upon considerations wholly extraneous  to the legality of the conviction : Ex parte  U. S. (1). Marshall,  C.  J., in U. S. v. George Wilson (2)  stated  as follows:-               ".....................  It  is  a  constituent               part  of  the judicial system that  the  judge               sees  only  with  judicial  eyes,  and   knows               nothing  respecting  any particular  case,  of               which he is not informed judicially ". In Ex parte Grossman (3), it was said that administration of justice  by the courts is not necessarily or always wise  or considerate of circumstances which may mitigate a guilt  and in  order  to remedy this it was thought necessary  to  vest this in some other authority than the court to ameliorate or avoid  particular criminal judgments.  The exercise of  this power  has the effect of destroying the deterrent effect  of judicial punishment.  The extent of the two powers, judicial and  executive and the difference between the two  has  been pointed  out  in United State8 v. Benz (4) in which  it  was held  that  no  usurpation of the  pardoning  power  of  the executive  is involved in the action of a court in  reducing punishment  after  the  prisoner had served a  part  of  the imprisonment   originally  im.  posed.   At  page  358   the distinction was stated as follows:-               "  The judicial power and the executive  power               over  sentenced are  readily  distinguishable.               To render judgment is a judicial function.  To               carry the judgment into effect is an executive               function.   To out short a sentence by an  act               of clemency is an exercise of executive  power               which   abridges   the  enforcement   of   the               judgment, but does not alter it qua  judgment.               To  reduce a sentence by amendment alters  the               terms of the judgment itself and is a judicial               act as much as the imposition of the  sentence               in the first instance"                (1) 61 L. Ed. 129 at p. 141.                (2) 8 L. Ed. 640, 643. 644.                (3) 69 L. Ed. 527, 530. 532.535.                (4) 75 L. Ed. 354.

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555 According  to  Willis  " Courts may exercise  the  power  of suspending sentence although this, like the pardoning power, partakes of the nature of an executive function; which shows that  giving of suspensions of sentences is an  exercise  of executive   power;  Willis’  Constitutional  Law,  p.   151. Clemency  is  the function of the executive and  it  is  the function  of  the courts to construe a Statute  and  not  to defeat it as construed. The  judicial  power therefore is  exercisable  on  judicial considerations.  The courts would approach every question in regard to suspension with a, judicial eye.  They are  unable to look to anything which is outside the record or the facts which  are  proved before them.  It is not their  sphere  to take  into  consideration  anything which  is  not  strictly judicial.   A court knows nothing of a case except  what  is brought  before it in accordance with the laws of  procedure and evidence and consequently this is a power distinct  from the  power  of  the executive which  may  act,  taking  into consideration extra-judicial matters even on the ground that suspension, remission and commutation may be more for public good  and  welfare  than no  interference.   These  are  all matters of public policy and matters which are not  judicial and  are within the power of the executive and therefore  it cannot  be  said  that the two powers operate  in  the  same field.   No  doubt they may have the same  effect  but  they operate  in distinct fields, on different principles  taking wholly irreconcilable factors into consideration. Taking  the  case  of pardon it is important  to  note  that pardon  is  granted  for reasons other  than  innocence.   A pardon,   it  has  been  said,  ’affirms  the  verdict   and disaffirms  it  not ". (28 Harvard Law Review at p.  647  by Samuel Williston). Commutation of sentences is a power which is exercisable  by the executive to ameliorate the rigors of the punishment  by courts  when  death  sentences  are  imposed.   It  was  not contended that the power of commutation is not available  to the  executive  after the sentence is passed and  before  an appeal  is filed or pending the appellate  proceedings.   It has  the same effect as reduction of a sentence by  a  court from 556 death to one of imprisonment for life or transportation  for life  as  it used to be.  In England and in  America  it  is exercised on the condition of acceptance by the convict  but no such limitation is imposed on the power of the  executive under the Indian law.  But whereas the court will take  into consideration only the circumstances which would justify the exercise  of judicial power it is open to the  executive  to act  on ,other grounds and the act of the executive  is  not subject  to  review by the courts, the executive  being  the sole  judge of sufficiency of facts and of the propriety  of the  action  and  no  other  branch  has  any  control  over executive action. As to suspension of sentence again in s. 426 of the Criminal Procedure  Code  it is expressly stated  that  an  appellate court can suspend the sentence for reasons to be stated ; no such limitation is imposed on the executive under s. 401  of the Code.  The language of the two sections themselves shows the  field  in  which the two powers  operate  although  the effect  may be the same. It is relevant to consider in  this connection the grounds  on which a court acts in  regard  to offenses  punishable  with  death or imprisonment  for  life (s.497  of  Cr.   P. C.) but  no  such  restrictions  impede executive  action.   Similarly when the Supreme  Court  acts

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under art. 142 it acts judicially and takes only those facts into  consideration  which are sufficient  in  the  judicial Sense to justify the exercise of its power ; so would be the case  when the power is exercised under the rules framed  by the court.  Thus it appears that the power of the  executive and  of the judiciary to exercise the power under arts.  161 and 142 or under ss. 401 and 426 are different in nature and are exercised on different considerations and even may  have different effect. Executive  power exercised in regard to sentences passed  by courts is in its very nature the exercise of  constitutional authority  which negatives the orders of the  court.   Every time  it  is exercised it conflicts with some order  of  the court  whether  it  is a case of pardon  or  commutation  of sentence  or a reprieve or suspension or respite.  It is  an interference with some action 557 of the court which makes the power of the executive to  that extent  overriding.  It is for this reason that it has  been said in American judgments, e. g., Ex parte Grossman(1) that although   the  Constitution  has  made  the  judiciary   as independent  of other branches as is practicable it  is,  as often remarked, the weakest of the three.  It must look  for a  continuity  of  necessary  cooperation  in  the  possible reluctance  of either of the other branches to the force  of public  opinion.   The action of the  executive  interfering with  sentences  passed by courts is a matter which  is  not within the amplitude of the judicial power of the courts and whenever any action is taken by the executive, unless it  is illegal,  it is not justiciable nor subject  to  legislative control. The  power that this court exercises under Order 21, Rule  5 must  also depend upon the decision of the question  whether art. 145 can be used in derogation of the power given to the Governors  under art. 161.  As has been stated above,  being subordinate  legislation, it must in reality be  subordinate to the provisions of the Constitution which is obvious  from the   fact  that  any  revision  of  the  articles  of   the Constitution  will  require the procedure laid down  in  the Constitution for its amendment whereas the rules made  under the Constitution can be changed by the court itself with the approval of the President or by a Parliamentary enactment. The  language  of art. 161 is of the  widest  amplitude  and applies to the various forms of clemency mentioned  therein. It is not denied that the power of pardon is not affected by art. 142 and this power includes the power to reprieve.   It would be an undue construction of the exercise of the  power of  pardon to take out from its purview that portion  of  it which is termed reprieve or stay of execution or  suspension and  respite  of sentence which differs from  suspension  of sentences  only in terminology.  The construction  suggested would  be  illogical because the plenitude of  the  language would  remain  unaffected before the petition for  leave  to appeal is filed and after the decision (1)  69 L. Ed- 527, 530, 532 535. 558 of  the appeal but the power would remain  suspended  during the pendency of the appeal proceedings even though the power of  pardon  and  of  commutation  remains  intact  and   the suggested  restriction is not borne out by the  language  of the article.  And this construction is opposed to  decisions of courts of America where the power is similar as in India. Even  on the analogy of the Privy Council case Balmukand  v. King  Emperor  (1) where reprieve was  granted  pending  the hearing of the special leave petition, i. e., upto the  date

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the  petition was taken up, heard and decided and  therefore uptil  that date the reprieve was necessary and proper.   In Rogers v. Peck(2) reprieve was granted for a period of  time extending beyond the hearing of the appeal proceedings. If the argument as to want of the power of suspension during the period of pendency of an appeal is sustainable then  the power to commute must equally be so affected because what is commutation  when  exercised  by  the  executive  is  called reduction  of sentence when ordered by the court.   The  two are neither different in nature nor in effect. Reference was made to a. 295 of the Government of India  Act of  1935  whereby  the prerogative of the King  and  of  the Governor  General  as his delegate was  specifically  saved. Reference was also made to 8. 209(3) of that Act which  gave to  the  Federal Court the power of stay in  any  case;  the argument  being that the prerogative power of the  King  and his delegate the Governor General would not be unlimited but for  its  being  expressly  saved by  s.  295(2).   A  close examination of these provisions and the application of rules of  interpretation  do  not support the  soundness  of  this argument. Section  209(3) is in Part IX The Judicature and  Chapter  1 the  Federal Court.  It gave power to the Federal  Court  to stay executions in any case under appeal as follows: S.209(3)  " The Federal Court may, subject to such  terms or conditions as it may think fit to impose, order a stay of execution in any case under appeal to (1) 42 I.A. 133. (2) 50 L. Ed. 256. 559 the Court, pending the hearing of the appeal, and  execution shall be stayed accordingly Section  295 is in Part XII Misellaneous and under  sub-head Provisions as to legal matters.  Section 295 provided:- S.295(1)  " Where any person has been sentenced to  death in a Province, the Governor General in his discretion  shall have all such powers of suspension, remission or commutation of  sentence  as  were vested in  the  Governor  General  in Council  immediately before the commencement of Part III  of this  Act,  but  save ,as aforesaid no  authority  in  India outside  a, Province shall have any power to suspend,  remit or  commute  the  sentence of any person  convicted  in  the Province: Provided that nothing in this sub-section affects any  power of any officer of His Majesty’s forces to suspend, remit  or commute a sentence passed by a court martial. (2)Nothing  in this Act shall derogate from the  right  of His  Majesty, or of the Governor General, if any such  right is  delegated  to  him by His  Majesty,  to  grant  pardons, reprieves, respites or remissions of punishment Stay of execution is a term appropriate to civil proceedings as  0. 21, rr. 26 & 29 and 0. 41, r. 5 of the Code of  Civil Procedure  would  show but even if it  applied  to  criminal proceedings   it   would   be  of   little   assistance   in understanding  the meaning of art. 142(1), in any  different manner  from  what has been said above.  But  s.  295(2)  is pressed into service to show that wherever the Power of  the executive is intended to be overriding.  It is  specifically so  stated.   So  construed the  power  exercisable  by  the Governor General in his discretion and of the Governor  will be  of lesser amplitude and subject to the limitation of  s. 209(3),  whereas  the  power of the  King  or  the  Governor General  acting  under  s. 295(2) will not be  so  which  is seemingly incongruous.  Besides the words " nothing in  this Act  shall  derogate  "  in s.  295(2)  only  emphasise  the

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constitutional position of the King’s prerogative and of his delegate and was more in the nature of 72 560 ex abundanti cautela’ because under constitutional  practice "   Roy  n’est  lie  par  ascun  statute,  si  il  ne   soit expressement nosme " is a principle which has been  accepted in this court qua the Union or the States.  " Where the King has  any  prerogative, estate, right, title or  interest  he shall  not be barred of them by the general words of an  Act if be not named therein "; Broom’s Maxims, p. 39 (1939 ed.); Province  of Bombay v. Municipal Corporation of the City  of Bombay(1), where it was held that Crown is not bound  unless expressly named or is bound by " necessary implication If  the  argument of limitation of the  King’s  prerogative because of these saving words is sound then it means in  the Constitution Act the British Parliament did contemplate  and provide  that  the  power of the King  or  of  the  Governor General  as  his delegate as to suspensions,  remissions  or commutation would be overriding and exercisable in spite  of the pendency of an appeal in the Federal Court. There are seven reasons for denying the argument of conflict between arts. 142 and 161 :- (1)As  has been discussed above, the two articles  operate in  two distinct fields where different  considerations  for taking  action  apply.   That is how the  two  articles  are reconcilable and should be reconciled.  This  interpretation accords  with the rule of statutory co-existence  stated  in text  books  on  Interpretation of  Statutes,  which  is  as follows:-               "  It is sometimes found that the conflict  of               two  Statutes  is  apparent  only,  as   their               objects are different and the language of each               is  restricted to its own object  or  subject.               When  their language is so confined, they  run               in parallel lines without meeting ".  (Maxwell               on  Interpretation of Statutes (1953 Ed.),  p.               170).               (2)The  proper  rule  of  construction   of               Statutes   was  laid  down  in  Warburton   v.               Loveland(2):               No rule of construction can require that  when               the   words  of  a  Statute  convey  a   clear               meaning..........  it  shall be  necessary  to               introduce another part of the               (1) 73 I.A. 271.               (2) 5 E.R. 499, 410.               561               Statute,  which speaks with less  perspicuity,               and of which the words may be capable of  such               construction as by possibility to diminish the               efficacy of the other provisions of the Act" This  rule was accepted in regard to the  interpretation  of ss.  89,  92 and 93 of the Australian  Constitution  in  the State of Tasmania v. Commonwealth of Australia (1):               "Applying those expressions to these  sections               I should say they amount to this; Seeing  that               sec. 89 hair an absolutely clear meaning,  the               rules  of  construction do not require  us  to               introduce  another part of the  Statute  which               speaks  with  less perspicuity, and  to  apply               that  part  to the construction  of  sec.  89.               That would have the effect of diminishing  the               clearness  of sec. 89 and appears to me to  be               an  absolute  inversion of the rule  which  is

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             applicable in such a case ". In  the  instant case the words of art. 161  are  clear  and unambiguous.  It is an unsound construction to put a  fetter on  the  plenitude of the powers given in  that  article  by reading an earlier article which deals with the powers of  a different department of Government and uses language " which speaks with less perspicuity (3)Moreover it is a relevant consideration in the matter of interpretation that the two articles are in two different parts.   There is ample authority for the view that  one  is entitled  to  have  regard to the indicia  afforded  by  the arrangement  of sections and from other indications;  Dormer v.  New Castle-upon-Tyne Corporation (2) per Slesser, L.  J. The  arrangement of sections into parts and  their  headings are  substantive parts of the Act and as is pointed  out  by Craies  on  Statute  Law  (5th Ed.),  p.  165,  "  they  are gradually  winning recognition as a kind of preamble to  the enactments  which they precede limiting or explaining  their operation  ".  They  may be looked to as  a  better  key  to construction than a mere preamble.  Ibid p. 195. (1) 1 C.L.R. 329, 357. (2) [1940] 2 K.B. 204, 217 (C.A.). 562 In Inglis v. Bobertson(1) which turned on the meaning of the Factors Act, Lord Herschell said:-               "These  headings  are not in my  opinion  mere               marginal  notes but the sections in the  group               to   which  they  belong  must  be   read   in               connection  with them and interpreted  in  the               light of them". Viscount   Simon,  L.  C.,  said  in  Nokes   v.   Doncaster Amalgamated Collieries Ltd. (2):-               "Moreover,  sec. 154 contemplates-or,  at  any               rate,  provides  for-the  dissolution  of  the               transferor  company when the transfer  of  its               undertaking  has been made, and there  appears               to  be  no means of calling back to  life  the               company  so dissolved for see. 294  occurs  in               Part  V  of the Companies Act,  1929,  dealing               with winding up, whereas sec. 154 is found  in               Part IV" These cases place accent on the principle that the  articles 142(1)   and  161  deal  with  different  subjects   showing operation  in  separate  fields and  were  not  intended  to overlap so as to be restrictive of each other. (4)The  language of art. 161 is general, i. e., the  power extends  equally to all class. of pardons known to  the  law whatever  the  nomenclature used ; Ex parte  Wells  (3)  and therefore if the power to pardon is absolute and exercisable at any time on principles which are quite different from the principles  on  which  judicial  power  is  exercised   then restrictions  on  the  exercise  of  the  lesser  power   of suspension for a period, during which the appeal is  pending in  this court would be an unjustifiable limitation  on  the power  of  the  executive.   It  could  not  have  been  the intention  of  the framers that the amplitude  of  executive power  should be restricted as to become suspended  for  the period of pendency of an appeal in the Supreme Court. (5)If this interpretation is-adopted it would lead to this rather incongruous result that if the appeal is pending in a Court  of  Session  or  the High  Court  the  power  of  the executive will be abundant, overriding (1) [1898] A.C. 616, 630. (2) [1940] A.C. 1114 (3) 15 L. Ed, 421, 424.

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563 and  operative  during the pendency of appeals but  will  be restrictive when appeal is brought in the Supreme Court. (6)Article  161  is  a later provision  and  when  it  was adopted the Constitution makers had already adopted art.  72 and arts. 142(1) and 145.  It does not seem reasonable  that by  so juxtaposing the articles it was the intention of  the framers to constrict the power of the executive.  The  rules of interpretation on this point have thus been stated: (a)It  is presumed that the legislature does  not  deprive the State of its prerogative powers unless it expresses  its intention  to  do  so  in  express  terms  or  by  necessary implication.  Province of Bombay v. Municipal Corporation of the City of Bombay (1); Director of Rationing & Distribution v. Corporation of Calcutta (2). (b)It  seems  impossible  to suppose that  so  material  a change  in  the constitutional powers of  the  Governor  was intended to be effected by a side wind. (e)The  law  will  not allow alteration of  a  Statute  by construction  when  the  words  may  be  capable  of  proper operation without it; Kutner v. Philips (3). (d)It  cannot be assumed that the Constitution  has  given with one hand what it has taken away with another; Dormer v. New Castle-upon-Tyne Corporation (4). (e)If  two sections are repugnant, the known rule is  that the last must prevail: Wood v. Riley (5), per Keating, J. (7)The power given to the Governor in regard to pardons is a  specific power specially conferred as was vested in-  the colonial  and British Governors in Indian  provinces  during British  days.   The  power given to the  court  under  Art. 142(1)  is  a general power exercisable for  doing  complete justice  in any cause or matter.  If they, i.e.,  arts.  161 and 142(1) deal with (1) 73 I.A. 271 (2) Criminal Appeal No. 158 Of 1956. (3) [1891] 2 Q.B. 267, 272. (4) [1940] 2 K.  B. 204. 217 (C.A.). (5) [1867-8] 3 C.P. 26. 564 the  same subject matter as is contended then art. 161  must prevail  over  art.  142(1)  which is  in  accord  with  the constitutional position as above discussed. In  the  circumstances  of  this  case  1  would  grant  the petitioner  exemption  prayed for and proceed  to  hear  the special leave petition on merits. BY COURT: In view of the majority Judgment, the petition  is dismissed. Petition dismissed.