iminal Misc
No 32060
Application for exemption from compliance with the requirements of Rule 5 of Order XXI Supreme Court Rules 1950 as amended
July 18 19 20 21 22
section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the petitioner
HM 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  HM 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 granteds 401
The President is entitled to pardon a person convicted for an offence punishable with death United States vs Wilson  at 644 Ex parte Wells   423
500 A free and unconditional pardon has the effect of obliterating the crime
Section 4261 empowers the Court to suspend the sentence or grant bail
The Executive Judiciary and Legislature paralysing each other never happens
United States vs Klein   Ex Parte Grossman  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 article 161 did not say that the power under it could be exercised notwithstanding other provisions of the Constitution
Was it therefore not necessary to hormonise this power with other constitutional provisions such as article 142  KAPUR J
In India have the Courts power to suspend a sentence Yes in a limited way as provided in section 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 vs Benz   358
In India we start with section 401 of the Code of Criminal Procedure 1898 and section 295 Government of India Act1935
Pardon is a part of the Constitutional scheme Balmukand vs 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 vs 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 article 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 vs Emperor Court refused bail but the executive suspended the sentence
The State of Bihar vs M Homi  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 articles 72 161 the President s prerogative is not made subject to any parliamentary legislation
There is no limit to article 72 or article 161 in the Constitution express or implied Hari Vishnu Kamath vs Syed Ahmad Ishaque  The powers of the Court and the Executive are distinct and separate
The Executive comes in after the Court has performed its function
502 KAPUR J YOU are talking about suspension of the sentence but can the Supreme Court suspend the sentence  We can grant bail but can we suspend the sentence Yes the Supreme Court has the power to stay the execution of sentence KAPUR J IS the condition imposed upon Commander Nanavati illegal  No nobody has said so
The Court can say Judicially that justice requires that a convicted person should remain in jail but the President can say on considerations of mercy that he should be set at liberty King vs section section Singh ILR 32 Pat
Power of prerogative is far wider than the judicial powers of the Court
The expression  at any time  in section 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 section 3312 Navy Act
There is no section in the Navy Act which prohibits such custody
GAJENDRAGADKAR J7 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 article 161 and those of the Supreme Court under articles 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 article 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 IndiaS M Sikri Advocate General for the State of Punjab and T MSen 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
CB Agarwala Amicus Curiae The Supreme Court is a Court of record under article 129 and has the constitutional privilege of prescribing
its procedure under which it will exercise its discretion vested in it under the Constitution
By article 145 the Supreme 65 504 Court has the constitutional power to lay down rules imposing conditions under which alone it would entertain a special leave petition
The material rule is made under the constitutional right given to the Supreme Court as a Court of Record and not under a law made under article 245
Subordinate legislation presupposes a rule made under laws enacted under article 245
Its analogy cannot be applied to rules under article 145
The fact that the rules made by the Supreme Court under article 145
require the approval of the President cannot convert the rules into a law made under article 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 article 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 article 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 article 161 operate only up to the stage when an application for special leave is made under article 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 article 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 article 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 article 142
SINHA C J
The Executive can intervene at any time during the trial Yes in the case of pardon The State of Bombay vs The United Motors India Ltd  SINHA C J The argument of the petitioner is that there is no sentence in operation and therefore there is nothing to surrender to There is apparently a conflict
The Court says the petitioner must surrender to his sentence
The Executive says that he need not surrender and will remain in some other custody
The Governor has extended the period of suspension till the decision of the petitioner s appeal in this Court
There is clash with the rule of this Court
SINHA C J
If the Supreme Court refused bail can the executive suspend the sentence  No it cannot in cases of suspension there is apparently a conflict
There is a distinction between pardon and suspension
Suspension stands on a different footing
Pardon can be granted at any stage but suspension of sentence can be made only after the sentence is inflicted
HM Seervai in reply
Nothing in articles 142 145 and sections 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 vs Benz   Hales Pleas of the Crown Reprieves before or after the judgment p 412 Rogers vs Peck 50 L Ed 256Reprieve being granted when a matter was before the Court
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 article 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 article 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 section 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 section 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 section 312 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 section 892 and 3 of the Navy Act
There upon the Magistrate made the order directing that the accused should be detained in the Naval Jail and Detention Quarters in Bombay
The Magistrate has observed in his order that he had been moved under the instructions of the Government of India
The petitioner continued to remain in naval custody all along
In due course he was placed on trial before the Sessions Judge Greater Bombay
The trial was by a jury
The jury returned a verdict of not guilty  by a majority of eight to one
The learned Sessions Judge made a reference to the High Court under section 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 section 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 section 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 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 article 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 201960 and also made an application on April 21 1960 under 0
XLV rr 2 and 5 of the Supreme Court Rules for exemption from compliance with 0
XXI r 5 of those Rules
It was stated in the petition that soon after his arrest the petitioner throughout the trial before the Sessions Court and the hearing of the reference in the High Court had been in naval custody and continued to be in that custody that he had been throughout of good behavior and was ready and willing to obey any order of this Court but that the petitioner  not being a free man it was not possible for him to comply with the requirements of r 5 of 0
XXI of the Supreme Court Rules 
He therefore prayed that he may be exempted from compliance with the aforesaid rule and that his petition for special leave to appeal be posted for hearing without his surrendering to his sentence
On April 25 1960 the special leave petition along with the application for exemption aforesaid was placed before a Division Bench which passed the following order This is a petition for special leave against the order passed by the Bombay High Court on reference convicting the petitioner under section 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 article 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 article 161 of the Constitution and that is a constitutional matter which has to be heard by a Constitution Bench of this Court
We would accordingly direct that notice of this application should be served on the Attorney General and the State of Bombay and the papers in this application should be placed before the learned Chief Justice to enable him to direct in due course i n consultation with the parties concerned when this application should be placed for hearing before the Constitution Bench 
After the aforesaid order of this Court it appears that on July 6 the petitioner swore an affidavit in Bombay to the effect that his application aforesaid for exemption from compliance with the requirements of r 5 of 0
XXI of the Rules had been made under a misapprehension of the legal position and that the true position had been indicated in the judgment of the Special Bench of the Bombay High Court to the effect that r 5 of 0
XXI of the Rules would not apply to his case in view of the Governor s order aforesaid and that therefore his special leave petition be directed to be listed for admission
It is apparent that this change in the petitioner s position as regards the necessity for surrender is clearly an afterthought
Certainly it came after the Division Bench had directed the constitutional matter to be heard as a preliminary question
That is how the matter has come before us
Before we heard the learned Advocate General of Bombay and the learned Additional Solicitor General on behalf of the Union of India we enquired of Shri J B Dadachanji Advocate for the petitioner whether the petitioner was prepared to get himself released from the Governor s order in order to present himself in this 66 512 Court so that the hearing of his special leave petition might proceed in the ordinary course but he was not in a position to make a categorical answer and preferred to have the constitutional question determined on its merits
We had the assistance of Mr C B Aggarwala who very properly volunteered his services as amicus curiae to represent the other view point
In this Court also the situation was the same as in the High Court namely that unless there was an amicus curiae to represent the opposite view point the parties represented before us were not contesting the validity of the Governor s order
Both here and in the High Court it was at the instance of the Court itself that the matter has been placed for hearing on the preliminary question before dealing with the merits of the petitioner s case
The learned Advocate General of Bombay has argued with his usual vehemence and clarity of expression that the power of pardon including the lesser power of remission and suspension of a sentence etc
is of a plenary character and is unfettered  that it is to be exercised not as a matter of course but in special circumstances requiring the intervention of the Head of the Executive that the power could be exercised at any time after the commission of an offence that this power being in the nature of exercise of sovereign power is vested in the Head of the State and has in some respects been modified by statute  that the power of pardon may be exercised unconditionally or subject to certain conditions to be imposed by the authority exercising the power that such conditions should not be illegal or impossible of performance or against public policy
It was further argued that the power of pardon is vested in the Head of the State as an index of sovereign authority irrespective of the form of Government
Thus the President of the United States of America and Governors of States besides in some cases Committees have been vested with those powers which cannot be derogated from by a 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 article 72 in respect of the President and article 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 articles 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 section 401 of the Code of Criminal Procedure or articles 72 and 161 of the Constitution
He particularly emphasised that the two powers namely the power of the Executive to grant pardon in its comprehensive sense and of the Judiciary are completely apart and separate and there cannot be any question of a conflict between them because they are essentially different the one from the other
The power of pardon is essentially an executive action
It is exercised in aid of justice and not in defiance of it
With reference to the particular question now before us namely how far the exercise of the executive power of pardon contained in those two Articles of the Constitution can be said to impinge on the judicial functions of this Court it was argued that r 5 of 0
XXI of the Rules of this Court postulates the existence of a sentence of imprisonment and as in this case as a result of the Governor s order there is no such sentence running there could not be any question of the one trespassing into the field of the other
Rule 5 aforesaid of this Court represents the well settled practice of this Court as of other Courts that a person convicted and sentenced to a term of imprisonment should not be permitted to be in contempt of the order of this Court that is to say should not be permitted to move the appellate court without surrendering to the sentence
But the petitioner is not in such contempt because r 5 did not apply to him
The order of sentence against him having been suspended he is not disobeying any rule or process of this Court or of the High Court
The power of the Supreme Court to make rules is subject to two limitations namely 1 to any law made by Parliament and 2 the approval of the President
On the other hand 514 articles 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 articles 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 article 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 article 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 article 123 or article 245 of the Constitution that the underlying idea behind r 5 of 0
XXI of the Rules of this Court is to see that the petitioner to this Court or the appellant should remain under  the directions of the Court that the Governor by passing the order in question has deprived the Supreme Court of its power in respect of the custody of the convicted person  that the power under article 161 has to be exercised within the limits laid down by article 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 article 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 section 401 of the Criminal Procedure Code has to be out down by the specific provisions of section 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 article 161 of the Constitution it will be convenient to review in a general way the law of pardon in the background of which the controversy has to be determined
Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign wherever the sovereignty might lie
Whether the sovereign happened to be an absolute monarch or a popular republic or a constitutional king or queen sovereignty has always been associated with the source of power the power to appoint or dismiss public servants the power to declare war and conclude peace the power to legislate and the power to adjudicate upon all kinds of disputes
The King using the term in a most comprehensive sense has been the symbol of the sovereignty of the State from whom emanate all power authority and jurisdictions
As kingship was supposed to be of divine origin an absolute king had no difficulty in proclaiming and enforcing his divine right to govern which includes the right to rule to administer and to dispense justice
It is a historical fact that it was this claim of divine right of kings that brought the Stuart Kings of England in conflict with Parliament as the 517 spokesman of the people
We know that as a result of this struggle between the King as embodiment of absolute power in all respects and Parliament as the champion of popular liberty ultimately emerged the constitutional head of the Government in the person of the King who in theory wields all the power but in practice laws are enacted by Parliament the executive power vests in members of the Government collectively called the Cabinet and judicial power is vested in a Judiciary appointed by the Government in the name of His Majesty
Thus in theory His Majesty or Her Majesty continues to appoint the Judges of the highest courts the members of the Government and the public servants who hold office during the pleasure of the sovereign
As a result of historical processes emerged a clear cut division of governmental functions into executive legislative and judicial
Thus was established the  Rule of Law  which has been the pride of Great Britain and which was highlighted by Prof Dicey
The Rule of Law in contradistinction to the rule of man includes within its wide connotation the absence of arbitrary power submission to the ordinary law of the land and the equal protection of the laws
As a result of the historical process aforesaid the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government
There has been a progressive increase in the power authority and jurisdiction of the three wings of the Government and a corresponding diminution of absolute and arbitrary power of the King
It may therefore be said that the prerogatives of the Crown in England which were wide and varied have been progressively curtailed with a corresponding increase in the power authority and jurisdiction of the three wings of Government so much so that most of the prerogatives of the Crown though in theory they have continued to be vested in it are now exercised in his Dame by the Executive the Legislature and the Judiciary
This dispersal of the Sovereign s absolute power amongst the three wings of Government has now 518 become the norm of division of power and the prerogative is no greater than what the law allows
In the celebrated decision of the House of Lords in the case of Attorney General vs De Keyser s Royal Hotel Limited 1 which involved the right of the Crown by virtue of its prerogative to
take possession of private property for administrative purposes in connection with the defence of the realm it was held by the House of Lords that the Crown was not entitled by virtue of its prerogative or under any statute to take possession of property belonging to a citizen for the purposes aforesaid without paying compensation for use and occupation
It was argued by Sir John Simon K C for the respondents that  The prerogative has been defined by a learned author as the residue of discretionary or arbitrary  authority which at any given time is legally left in the hands of the Crown 
It is the ultimate resource of the executive and when there exists a statutory provision covering precisely the same ground there is no longer any room for the exercise of the Royal Prerogative
It has been taken away by necessary implication because the two rights cannot live together See p 518 of the Report
This argument on behalf of the respondents appears to have been accepted by Lord Dunedin who delivered the leading opinion of the House in these terms  The prerogative is defined by a learned constitutional writer as  the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown 
Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative and specially empowers the Crown to do the same thing but subject to conditions the Crown assents to that and by that Act to the prerogative being curtailed 
See p 526 of the Report
This position has been recognised in Halsbury s Laws 1  519 of England Volume 7 Third Edition at p 221 in these words lm15  The prerogative is thus created and limited by the common law and the Sovereign can claim no prerogatives except such as the law allows nor such as are contrary to Magna Carta or any other statute or to the liberties of the subject
The courts have jurisdiction therefore to inquire into the existence or extent of any alleged prerogative
We have thus briefly set out the history of the genesis and development of the Royal Prerogative of Mercy because Mr Seervai has strongly emphasised that the Royal Prerogative of Mercy is wide and absolute and can be exercised at any time
Very elaborate arguments were addressed by him before us on this aspect of the matter and several English and American decisions were cited
In so far as his argument was that the power to suspend the sentence is a part of the larger power of granting pardon it may be relevant to consider incidentally the scope and extent of the said larger power but as we shall presently point out the controversy raised by the present petition lies within a very narrow compass and so concentration on the wide and absolute character of the power to grant pardon and over emphasis on judicial decisions which deal directly with the said question would not be very helpful for our present purpose
In fact we apprehend that entering into an elaborate discussion about the scope and effect of the said larger power in the light of relevant judicial decisions is likely to create confusion and to distract attention from the essential features of the very narrow point that falls to be considered in the present case
That is why we do not propose to enter into a discussion of the said topic or to refer to the several decisions cited under that topic
Let us now turn to the law on the subject as it obtains in India since the Code of Criminal Procedure was enacted in 1898
Section 401 of the Code gives power to the executive to suspend the execution of 67 520 the sentence or remit the whole or any part of the punishment without conditions or upon any conditions which the person sentenced accepts
Section 402 gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature
In addition the Governor General had been delegated the power to exercise them prerogative power vesting in His Majesty
Sub section 5 of section 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 articles 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 articles 72 and 161
It will be seen however that articles 72 and 161 not only deal with pardons and reprieves which were within the royal prerogative but have also included what is provided in sections 401 and 402 of the Code
Besides the general power there is also provision in sections 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 article 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 article 161 does not make any reference to article 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 articles 142 and 145 of the Constitution or by any other law
Article 1421 is in these terms  The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and until provision in that behalf is so made in such manner as the President may by order prescribe
 It will be seen that it consists of two parts
The first part gives power to this Court in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it
The second part deals with the enforcement of the order passed by this Court
Article 145 gives power to this Court with the approval of the President to make rules for regulating generally the practice and procedure of the Court
It is obvious that the rules made under article 145 are in aid of the power given to this Court under article 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 article 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 vs 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 article 145 are only in aid of the powers of this Court under article 142 and the main question that falls for consideration is whether the order of suspension passed by the Governor under article 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 NWP 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 article 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 article 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 article 161 are without any limitation the provisions of section 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 section 401 of the Code with respect to suspension as compared with the powers of tile Court under section 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 section 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 article 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 section 401 occurs deals with a situation in which pendency of an appeal is not envisaged section 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 section 426 deals with a special case and therefore must be out of the operation of section 401
But it has been vehemently argued by the learned Advocate General that the words at any time indicate that the power conferred by section 401 may be exercised without any limitation of time
In the context of section 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 section 426 can be availed of by the appellant  It will be seen that section 426 is as unfettered by other provisions of the Code as section 401 with this difference that powers under section 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 section 426 is held to deal with a special case restricted to the period while the appeal is pending before an appellate court while section 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 section 401 by this interpretation
The words  at  any time  emphasise that the power under section 401 can be exercised without limit of time but they do not necessarily lead to the inference that this power can also be exercised while the court is seized of the same matter under section 426
Turning now to articles 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 vs 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 article 136
The power under article 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 article 142  to make such order as is necessary for doing complete justice in any cause or matter pending before it 
As already indicated the power of this Court to pass an order of suspension of sentence or to grant bail pending the disposal of the 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 article 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 article 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 article 161 and by this Court under article 142 because the power under article 161 is executive power and the power under article 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 article 161 is exercised by the executive while the power under article 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 article 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 article 142 and the Executive power under article 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 article 161 contains no words of limitation in the same way article 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 article 161 is very much wider and it is only in a very narrow field that the power contained in article 161 is also contained in article 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 article 161 does not deal with the suspension of sentence during the time that 68 528 article 142 is in operation and the matter is sub judice in this Court
In this connection it is well to contrast the language of section 2093 and section 2952 of the Government of India Act 1935
Section 2093 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 2952 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 s2952 that the prerogative exercised by His Majesty transcended the power of the Federal Court under section 2093but when we compare the language of articles 72 and 161 with the language of section 2952 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 article 2622 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 article 161 makes the power of this Court under article 142 of the same wide amplitude within its sphere as the power conferred on the Governor under article 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 article 142 which operates in a very small part of the field in which the power under article 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 article 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 sections 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 section 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 section 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 article 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 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 article 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 sections 401 and 426 of the Code of Criminal Procedure and articles 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 article 142 is not covered by article 161 and similarly what is covered by section 426 is not covered by section 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 article 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 article 161 the rule must yield to the powers conferred on the Governor by article 161
This argument overlooks the fact that in substance and effect the conflict is not between the said rule and article 161 but between the wide powers conferred on this Court by article 142 and similar wide powers conferred on the Governor under article 161
It would 531 therefore be fallacious to suggest that compliance with the rule would become unnecessary because a higher power under article 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 article 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 article 145 but article 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 articles 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 of this question the legal character of the rules that may be framed under article 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 10000 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 article 161 the Governor can effectively interfere with an order passed in the same matter by this Court in exercise of its powers under article 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 article 161 can be exercised is different from the field on which the power of this Court can be exercised under article 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 exclusively executive power vesting in the Governor under Art161 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 article 142 can also be covered by the executive power of the Governor under article 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 articles 1421 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 article 161 with the latter
Article 72 which is in Part V Chapter 1 dealing with the Union Executive provides article 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 cin 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 1421 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 articles 142 and 1451 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 articles 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 section 54 which was as under S54
 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 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 section 421 the appellate court was given the power to suspend sentences pending appeals and release which was in the following terms S421 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 section 322 which read as under  S322
 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 section 281 a section in Chapter XX dealing with appeals which was in the following terms S281
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 section 401  S401
 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 section 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 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  5Nothing 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 section 401 of the Act of 1882 the legislature chose to use the words  suspension of 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 section 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 section 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 vs Attorney General of Canada 1
Provisions such as section 4015 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  S295
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 11930 AC 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
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 
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 
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
3Ex 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 1A 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 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 section 295 of the Constitution Act of 1935 and is unaffected in regard to sentence of death by the power conferred under article 161
The power of the Governor contained in article 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 vs 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 38 L Ed 640 643 644
70 2   136
4   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 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 vs Robinson 5 Pet 264 280 and in Flavell s case  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   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 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   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 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  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   424
2   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 vs 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 reasons which actuated the executive
This power is beyond the control of the judiciary  sections 43 Horwitz vs 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 section 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 controlsaid 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   370  371
2  3 548 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 vs 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 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  530 532 535
2   1163
3 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 vs 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 Chapt37
In the Indian Statute the words  any time  are expressly used in section 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   370  371 2  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 section 494 Criminal Procedure Code but that power is not as absolute as it is in the case of section 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 section 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 section p 582
A case where the power of reprieve was exercised and operated during the pendency of the appellate proceedings is Rogers vs 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 51905 and fixed for hearing on 1   530 532 535
2  370 371
3  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 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 articles 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 article 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 article 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 O21 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 
O21 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 article 136 which states  Notwithstanding anything in this Chapter the Supreme Court may in its discretion grant special leave to appeal  
Rules made under article 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 article 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 article 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 article 161 and of the judiciary to suspend the sentence under article 142 and article 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 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 section 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  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 section 1
Marshall C J in U section vs 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 vs 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  at p 141
2   643
3   530
532535
4  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 section 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 section 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 s497 of Cr P C but no such restrictions impede executive action
Similarly when the Supreme Court acts under article 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 articles 161 and 142 or under sections 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 Grossman1 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 article 145 can be used in derogation of the power given to the Governors under article 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 article 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 article 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 vs King Emperor 1 where reprieve was granted pending the hearing of the special leave petition i e upto the date the petition was taken up heard and decided and therefore uptil that date the reprieve was necessary and proper
In Rogers vs Peck2 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
2093 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 section 2952
A close examination of these provisions and the application of rules of interpretation do not support the soundness of this argument
Section 2093 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 S2093  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 IA 133
2  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 S2951  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
2Nothing 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 article 1421 in any different manner from what has been said above
But section 2952 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 section 2093 whereas the power of the King or the Governor General acting under section 2952 will not be so which is seemingly incongruous
Besides the words  nothing in this Act shall derogate  in section 2952 only emphasise the 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 vs Municipal Corporation of the City of Bombay1 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 articles 142 and 161  1As 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
2The proper rule of construction of Statutes was laid down in Warburton vs Loveland2 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 IA 271
2  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 sections 89 92 and 93 of the Australian Constitution in the State of Tasmania vs 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
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 applicable in such a case 
In the instant case the words of article 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 3Moreover 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 vs 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   357
2  217 CA
562 In Inglis vs Bobertson1 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 vs 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 1421 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
4The language of article 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
5If 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   630
2 3   424
563 and operative during the pendency of appeals but will be restrictive when appeal is brought in the Supreme Court
6Article 161 is a later provision and when it was adopted the Constitution makers had already adopted article 72 and articles 1421 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 aIt 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 vs Municipal Corporation of the City of Bombay 1 Director of Rationing  Distribution vs Corporation of Calcutta 2
bIt 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
eThe law will not allow alteration of a Statute by construction when the words may be capable of proper operation without it Kutner vs Philips 3
dIt cannot be assumed that the Constitution has given with one hand what it has taken away with another Dormer vs New Castle upon Tyne Corporation 4
eIf two sections are repugnant the known rule is that the last must prevail Wood vs Riley 5 per Keating J 7The 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 article 1421 is a general power exercisable for doing complete justice in any cause or matter
If they ie articles 161 and 1421 deal with 1 73 IA 271 2 Criminal Appeal No 158 Of 1956
3  272
4 217 CA
5 564 the same subject matter as is contended then article 161 must prevail over article 1421 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


Summary:
The appellant at the time a resident of Lahore was asses sed to income tax on an income of Rs 49047 for the assessment year 1944 45 by the Income tax Officer Lahore
After the partition in 1947 he shifted to Delhi and resided there
He was one of the three share holders of a company called Indra Singh and Sons Ltd of Calcutta the shares of all the three shareholders being equal
The company at a meeting held oil April 17 1943 passed its accounts for the year ending March 31 1942 but declared no dividends although the accounts disclosed large profits
On June 11 1947 the Income tax Officer Calcutta passed an order under section 23A of the Income tax Act that the sum of Rs 474370 being the appellant s share of the undistributed assessable income of the company be included in his income for the assessment year 1944 45
Thereupon the Income tax Officer Delhi on April 10 1948 issued a notice to the appellant who was then working as the Defence Minister of India and residing in Delhi under section 34 of the Act to file a revised return which he did under protest reopened the earlier assessment and by a fresh order made on March 25 1949 assessed the appellant on an income of Rs 523417 for the year in question
It was contended on behalf of the appellant that the proceeding under section 34 could be held only in Lahore and not in India at all
The question for determination was whether the Income tax Officer Delhi could validly reassess the appellant under section 34 of the Act
Held that the issue of a notice under section 34 of the Income tax Act 1922 under the provision of the section itself attracted such provisions of the Act as might apply to a notice issued under section 222 of the Act and since section 64 of the Act was the only provision under which the place of assessment upon a notice under section 222 could be determined in absence of anything to the contrary in the Act section 64 applied to an assessment under section 34 of the Act
The appellant was therefore rightly assessed by the Income tax Officer Delhi under section 642 of the Act
483 C VGovindarajulu vs Commissioner of Income tax Madras ILR and Lakshminarain Bhadani vs Commissioner of Income tax Bihar and Orissa  held inapplicable
The time specified by the proviso to section 643 could have no application since the contention in the present case was that the assessment under section 34 could be made only in Lahore and not in India at all
Section 23A of the Act as it then stood raised only one fiction and not two and that was of an income arising on a specific date in the past with the purpose that such income might be included in the income of a share holder for assessment
That income must therefore be deemed to have existed on the date for the purpose of assessment and if not included in the assessment for the relevant year must be taken to have actually escaped assessment so as to attract section 34 of the Act
Dodworth vs Dale  D  G R Rankine vs Com missioners of Inland Revenue and Chatturam Horliram Ltd vs Commissioner of Income tax Bihar and Orissa   held inapplicable
There is no warrant for the proposition that section 23A of the Act was meant to apply only to cases where pending assessment for any year an order is made under that section creating a fictional income that year
Such an order could therefore be made even after the assessment of the income of the share holder for the year concerned had already been completed
But section 23A does not itself provide for any assessment being made and that has to be made under other provisions of the Act authorising assessment including section 34
It is not correct to say that section 23A1 as it then stood was beyond the competence of the Legislature and was as such unconstitutional
Under Entry 54 of List I of the Seventh Schedule to the Government of India Act 1935 the Legislature could pass not only a law imposing a tax on a person on his own income but also a law preventing him from evading the tax payable on his income and there can be no doubt that section 23A properly construed was meant to prevent such evasion