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PETITIONER: THAIVALAPPIL KUNJUVARU VAREED

       Vs.

RESPONDENT: THE STATE OF TRAVANCORE-COCHIN.

DATE OF JUDGMENT: 01/12/1955

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. DAS, SUDHI RANJAN BOSE, VIVIAN BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P.

CITATION:  1956 AIR  142            1955 SCR  (2)1022

ACT: Constitution  of  India, Arts. 72, 161  and  238-Prerogative right  of  pardon  vested  in the  Maharaja  of  Cochin  and affirmed  by  Art.  XXI  of Covenant  dated  29th  May  1949 entered  into between the Rulers of Travancore  and  Cochin- Whether  superseded and abrogated in view of the,  accession and  integration of United State of Travancore  Cochin  with Dominion  of  India  and  the  Union  of  India-Whether  its continuance  consistent  with Arts. 62, 161 and 238  of  the Constitution.

HEADNOTE: A sentence of death passed on the appellant by the  Sessions Judge  of  Trichur  (now situated in  the  United  State  of Travancore  Cochin  and previously in the  former  State  of Cochin)  was confirmed by the High Court.   Mercy  petitions presented to the Raj Pramukh of Travancore-Cochin and to the President   of  India  were  rejected.   The  question   for determination  was whether the appellant could rely  on  the pre-existing power of the Maharaja of Cochin to exercise the power of pardon in respect of a sentence of death passed  by the  courts in his State, the prerogative right having  been affirmed  by  Art.  XXI of the Covenant dated the  29th  May 1949,  entered  into between the Rulers  of  Travancore  and Cochin. Held  that  the  pre-existing prerogative  right  of  pardon vested in the Maharaja of Cochin must be taken to have  been superseded  and abrogated having regard to the events  which culminated in the accession and integration of the State  of Travancore-Cochin with the Dominion of India and  thereafter its absorption into the Union of India when the Constitution of  India  came  into force on the 26th  January  1950,  the continuance  of  such prerogative  being  inconsistent  with Arts. 72, 161 and 238 of the Constitution.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 90  of

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1955. On appeal by special leave from the Judgment and order dated the  17th June 1955 of the Travancore-Cochin High  Court  at Ernakulam in Criminal Miscellaneous Petition No. 113 of 1955 (R.T. ’No. 4 of 1954 and Criminal Appeal No. 136 of 1954). B. R. L. Iyengar, for the appellant. Sardar Bahadur, for the respondent, 1023 1955.   December 1. The Judgment of the Court was  delivered by JAGANNADHADAS  J-This  is  an appeal by  special  leave  and arises under somewhat unusual circumstances.  The  appellant was  convicted of murder in Sessions Case No. 20 of 1954  by the   Sessions  Judge  of  Trichur  now  in  the  State   of Travancore-Cochin and sentenced to death.  The sentence  was in due course confirmed by the High Court and an application for  leave to appeal against it to this Court was  rejected. The  appellant filed mercy petitions to the  Raj-Pramukh  of Travancore-Cochin and to the President of India and both  of them  were rejected.  After all these attempts  had  failed, the Sessions Judge issued a warrant on the 29th March, 1955, fixing  6th April, 1955, for the execution of the  prisoner. Meanwhile,  the Superintendent, Central Jail, Viyyur,  where the  condemned  prisoner was lodged, informed  the  Sessions Judge  by  his letter dated the 1st April,  1955,  that  the prisoner had sent a mercy petition to the Maharaja of Cochin and  requested  for  directions, since no  orders  had  been received  in respect of that petition. it may  be  mentioned that  the Sessions Division of Trichur is admittedly in  the former State of Cochin.  It does not appear from the  record whether  this mercy petition to the Maharaja of  Cochin  was sent before or after the mercy petitions to the  Raj-Pramukh of Travancore-Cochin and to the President were disposed  of. On receipt of the letter dated the 1st April, 1955, from the Superintendent,  Central Jail, the Sessions Judge passed  an order  that the circumstances of the case demanded that  the execution of the sentence should not take place on the  date already  fixed.   He  accordingly issued  an  order  staying execution of the sentence, previously ordered by his warrant dated the 29th March, 1955.  At this stage, the Public  Pro- secutor  filed an application to the Sessions Judge  on  the 30th  May,  1955, praying that the stay may be  vacated  and that fresh directions to execute the warrant may be  issued. On  that  application,  the  Public  Prosecutor  raised  the question that a mercy 1024 petition  to the Maharaja of Cochin, who as such,  has  lost sovereignty over the territory forming part of  the previous Cochin State, and hence also lost his prerogative of pardon, was  incompetent  and  could not stand in  the  way  of  the warrant  being executed.  The learned Sessions  Judge  dealt with  this  question and agreed with the contention  of  the Public  Prosecutor.  Accordingly, he vacated  the  stay  and issued a fresh warrant for execution of the prisoner  giving a  week’s time to the prisoner to take the matter on  appeal to  the  High Court, if so advised.  The prisoner  filed  an appeal to the High Court and the learned Judges of the  High Court  after  consideration of the arguments on  both  sides agreed  with the view taken by the learned  Sessions  Judge, and  dismissed  the appeal by its judgment  dated  the  17th June, 1955.  The present appeal is against this order of the High Court. For  the hearing of this appeal counsel was assigned to  the appellant amicus curiae and all the relevant  constitutional provisions  have  been fully and fairly  placed  before  us.

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Learned counsel appearing for the State has also been heard. We are satisfied that the question that has been raised does not admit of substantial argument and that the view taken by both the Courts below is correct. The entire basis for any argument on behalf of the appellant is  the  pre-existing  undoubted power of  the  Maharaja  of Cochin to exercise the prerogative of pardon in respect of a sentence  of  death passed by the courts within  his  State. That prerogative right has been ’affirmed in Article XXI  of the Covenant dated the 29th May, 1949, entered into  between the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin.  The article is in the following terms: "Notwithstanding   anything  contained  in   the   preceding provisions  of this Covenant, the Rulers of  Travancore  and Cochin  shall continue to have, and exercise, their  present powers  of  suspension, remission or  commutation  of  death sentences in respect of any person who may have been, or  is hereafter, sentenced 1025 to   death   for  capital  offence  committed   within   the territories of Travancore or Cochin as the case may be’ It is only on the assumption that the power thus  recognised in  this  article  of the Covenant  still  survives  in  the Maharaja  of  Cochin, notwithstanding that he had  lost  his sovereignty over the territories which constituted the State of  Cochin  that the appellant has any statable  case.   But this  assumption is clearly unfounded having regard  to  the events which culminated in the accession and integration  of the  State of Travancore-Cochin with the Dominion  of  India and thereafter its absorption into the Union of India,  when the  Constitution of India came into operation on  the  26th January,  1950.  The relevant historical events may  briefly be stated. In August, 1947, the Rulers of the States of Travancore  and Cochin  executed  separate instruments of accession  to  the Dominion  of  India on the same lines as most  other  Indian States  did,  at  the time.  In May, 1949,  the  two  States formed  into a United State under a Covenant signed by  each of the Maharajas, the provisions of which were guaranteed by the Government of India.  It is Article XXI of this Covenant which  has already been referred to and which  provides  for the continuance of the prerogative of the Maharaja of Cochin for commutation of death sentences within his State.   Under this  Covenant it was also provided that the then  Ruler  of Travancore  should  be the first Raj-Pramukh of  the  United State of Travancore-Cochin.  It was specifically provided by Article IX thereof as follows: "The Raj Pramukh shall, within, a fortnight of the appointed day, execute on behalf of the United State an Instrument  of Accession in accordance with the provisions of section 6  of the  Government  of  India Act, 1935, and in  place  of  the Instruments of Accession of the Covenanting States". By Article X(4) of the Covenant it was provided that "The  Legislature of the United State shall, subject to  the provisions of this Covenant, have full power 1026 to  make laws for the United State, including provisions  as to  the  Constitution  of  the  United  State,  within   the framework of this Covenant and the Constitution of India". In  pursuance of article IX, the Raj Pramukh of  Travancore- Cochin  executed an Instrument of Accession dated  the  14th July,  1949, which was accepted by the  Governor-General  of India  on  the  15th August, 1949.  By  article  I  of  this Instrument it was declared that the ’United State acceded to

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the  Dominion  of India.  In pursuance of Article  X(4)  the legislative  assembly  of  the  State  of  Travancore-Coobin resolved  that  the Constitution framed by  the  Constituent Assembly  be adopted by the State.  In  consequence  thereof the  Raj Pramukh of Travancore-Cochin issued a  proclamation dated the 24th November, 1949, which runs as follows: "Whereas  with the inauguration of the new Constitution  for the  whole  of  India now being framed  by  the  Constituent Assembly of India, the Government of India Act, 1935,  which now  governs  the constitutional relationship  between  this State and the Dominion of India will stand repealed; and  whereas’ in the best interests of the United  State  of Travancore and Cochin, which is closely linked with the rest of  India  by  a community of  interests  in  the  economic, political  and  other  fields,  it  is  desirable  that  the constitutional  relationship established between this  State and  the Dominion of India, should not only be continued  as between  this  State  and the contemplated  Union  of  India further  strengthened,  and  the Constitution  of  India  as drafted by the Constituent Assembly of India, which includes duly  appointed  representatives of this State,  provides  a suitable basis for doing so; And  whereas by virtue of the power vesting in it under  the Covenant  establishing this State, the Legislative  Assembly of  the State has resolved that the Constitution  framed  by the Constituent Assembly of India be adopted by this State; I now hereby declare and direct- 1027 That the Constitution of India shortly to be adopted by  the Constituent Assembly of India shall be the Constitution  for the  United State of Travancore and Cochin as for the  other parts  of India and shall be enforced as such in  accordance with the tenor of its provisions: That  the provisions of the said Constitution shall as  from the  date  of its commencement, supersede and  abrogate  all other constitutional provisions inconsistent therewith which are at present in force in this State". For  our  present  purposes,  the  last  paragraph  in  this Proclamation is important.  On the coming into force of  the Constitution  of India on the 26th January, 1950, the  State of Travancore-Cochin became a part of the Union of India and was  one  of the Part B States as provided under  article  1 clause  (2)  taken with Part B of the First  Schedule.   The Constitution  specifically provided for the  prerogative  of mercy  in respect of sentences of death in articles 72,  161 and  238.  Article 72 provides for the power of  the  Presi- dent, article 161 for the power of the Governor in a Part  A State,  and article 238 (1) taken with article 161  for  the power of the Raj Pramukh of a Part B State.  In the light of these  provisions the continuance of the prerogative of  the Maharaja  of Cochin relating to the execution of  the  death sentences with reference to the ex-State of Cochin would  be inconsistent with the new Constitution.  Such power,  there- fore, must be taken to have been superseded and abrogated as stated in the last para of the Proclamation above mentioned. It  would  follow that article XXI of the Govenant  of  May, 1949, no longer survives. Article 372(1) of the Constitution has also been relied upon on behalf of the appellant.  This runs as follows: "Notwithstanding  the  repeal by this  Constitution  of  the enactments  referred  to in article 395 but subject  to  the other provisions of this Constitution, all the law in  force in   the   territory  of  India   immediately   before   the commencement  of this Constitution shall continue  in  force therein until altered or re-

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130 1028 pealed  or  amended  by a  competent  Legislature  or  other competent authority". The argument based on this article is that the criminal  law of the ex-Cochin State continued to be in force in spite  of the  new  Constitution having come into force and  that  the exercise  of  the prerogative by the Maharaja of  Cochin  in respect  of the ex-State of Cochin was an integral  part  of that law.  Apart from the question whether such  prerogative which was incidental to his sovereignty, could survive after he  lost his sovereignty over the territory, the  difficulty in the way of this argument is twofold. (1) The  continuance is subject to the other provisions of the Constitution;  and (2)  The  continuance is only until altered or  repealed  or amended by a competent Legislature.  As already pointed out, the continuance of the prerogative of the Maharaja of Cochin would  be inconsistent with articles 72, 161 and 238 of  the Constitution.  Further it is to be noticed that by the  Code of Criminal Procedure (Amendment) Act, 1951, (Central Act  I of  1951),  passed  by the Union Legislature,  the  Code  of Criminal  Procedure, 1898, has been made applicable  to  the whole  of  India by amending section I of the  Code  and  by substitution  therein for the words "whole of  India  except Part B States", the words "whole of India except the  States of  Jammu  and Kashmir and Manipur".  The Code  of  Criminal Procedure  and  along with it sections 401, 402,  and  402-A thereof,  relating to commutation of sentences  having  thus been  made specifically applicable to all Part B  States  by Central Act I of 1951, the prerogative under the old  Cochin law  must  in any case be deemed to have  been  repealed  or abrogated  by  competent  legislative  authority  after  the coming into force of the Constitution.  It was suggested  in the  Courts  below that in so far as the  Maharaja’s  prero- gative  was  concerned the Legislature  was  incompetent  to abrogate it in view of article 362 of the Constitution.  But that  article  has no bearing.  It refers only  to  personal rights,  privileges  and dignities of the Rulers  of  Indian States.   It  is obvious even from the  Covenant,  in  which article XXI appears, that the 1029 power  of  pardon  thereunder is  different  from  "personal rights, privileges and dignities" which have been dealt with under articles XVI and XVII in the following terms. "XVI.   The  Ruler of each Covenanting State,  as  also  the members of his family, shall be entitled to all the personal privileges,  dignities and titles enjoyed by  them,  whether within or outside the territories of the State,  immediately before the 15th day of August,1947. XVII.(1) The succession, according to law and  custom to the gaddi of each Covenanting State and to the personal  rights, privileges,  dignities  and titles of the Ruler  thereof  is hereby guaranteed". There is thus no substance in any of the arguments on  which the case for the appellant can possibly be presented. This appeal is accordingly dismissed.