9911796707
TMI Blog1960 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959. On April 27, 1959, the petitioner was arrested in connection with a charge of murder under s. 302 of the Indian Penal Code. He was produced before the Additional Chief Presidency Magistrate, Greater Bombay, in connection with that charge on April 28, 1959. The Magistrate remanded him to police custody on that day. On the following day (April 29, 1959) the Magistrate received a letter from the Flag Officer, Bombay, to the effect that he was ready and willing to take the accused in naval custody as defined in s. 3(12) of the Navy Act, 1957, in which custody he would continue to be detained under the orders of the Naval Provost Marshall in exercise of his authority under s. 89(2) and (3) of the Navy Act. Thereupon 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 majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf 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 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 a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the High Court, had been in naval custody and continued to be in that custody, that he had been throughout of good behaviour 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 O. 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 of special leave against the order passed by the Bombay High Court on reference, convicting the petitioner under s. 302 of the Indian Penal Code and sentencing him to imprisonment for life. Along with his petition for special leave an application has been filed by the petitioner praying that he may be exempted from surrendering under O. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Arts. 72 and 161 enshrine the plenary powers of the sovereign State to grant pardon etc., and are not subject to any limitations. There could, therefore, be no conflict between these two, and if there were any conflict at all, the limited powers of the Court must yield to the unlimited powers of the Executive. As regards the condition imposed by the Governor, subject to which the sentence passed against the petitioner had been suspended, the condition was not illegal, because it did not offend against any peremptory or mandatory provisions of law. It is not the same thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the directions of the Court; that the Governor by passing the order in question has deprived the Supreme Court of its power in respect of the custody of the convicted person; that the power under Art. 161 has to be exercised within the limits laid down by Art. 154 of the Constitution. It was also argued that the petitioner could have got his relief from this Court itself when he put in his application for special leave and that in such a situation 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 refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f England in conflict with Parliament as the spokesman of the people. We knew 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, included within its wide connotation the absence of arbitrary power, submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 of England, Volume 7, Third Edition, at p. 221, in these words :- 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 or any alleged prerogative ............... . 13. We have thus briefly set out the history of the genesis and development of the Royal Prerogative of Mercy because Mr. Seervai has strongly emphas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offences against any law relating to a matter to which the executive power of the State extends. Sections 401 and 402 of the Code have continue with necessary modifications to bring them into line with Arts. 72 and 161. It will be seen, however, that Arts. 72 and 161 not only deal with pardons and reprieves which were within the royal prerogative but have also included what is provided in 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. 15. In this case we are primarily concerned with the extent of the power of pardon vested in the State so far as the Governor is concerned by Art. 161 of there Constitution. Article 161 is in these terms :- 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 18. This rule was, in terms, introduced into the Supreme Court Rules last year and it only crystallized the pre-existing practice of this Court, which is also the practice in the High Courts. That practice is based on the very sound principle which was recognised long ago by the Full Bench of the High Court of Judicature, North Western Provinces, in 1870, in the case of The Queen v. Bisheshar Pershad (Vol. 2, N.W.P. High Court Reports, p.441). In that case no order of conviction had been passed. Only a warrant had been issued against the accused and as the warrant had been returned unserved 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 had surrendered, the matter was dealt with by the High Court on its merits. But as observed above the Rules framed under Art. 145 are only in aid of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment he may be released on bail or on his own bond. Section 401 occurs in Chapter XXIX, headed Of suspensions, remissions and commutations of sentences . This Chapter, therefore, does not deal with all the powers vested in the Governor under Art. 161 of the Constitution, but only with some of them. Section 426 is in Chapter XXXI, headed as Of appeal, reference and revision . Section 426, therefore, deals specifically with a situation in which an appeal is pending and the appellate court has seisin of the case and is thus entitled to pass such orders as it thinks fit and proper to suspend a sentence. It will thus be seen that whereas Chapter XXIX, in which s. 401 occurs, deals with a situation in which pendency of an appeal is not envisaged, s. 426 deals with a situation in which pendency of an appeal is postulated. In other words, Chapter XXIX deals with persons sentenced to punishment for an offence simpliciter in general terms, whereas s. 426 deals with a special case and therefore must be out of the operation of s. 401. But it has been vehemently argued by the learned Advocate General that the words at any time indicate that the power conferred by s. 401 may be exercised wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 23. 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 prerogative power in view of the circumstance that an appeal top 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). 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judiciary; but merely because one power is executive and the other is judicial, it does not follow that they can never be exercised in the same field. The field in which the power is exercised does not depend upon the authority exercising the power but upon the subject-matter. What is the power which is being exercised in this case ? The power is being exercised by the executive to suspend the sentence; that power can be exercised by this Court under Art. 142. The field in which the power is being exercised is also the same, namely, the suspension of the sentence passed upon a convicted person. It is significant that the Governor's power has been exercised in the present case by reference to the appeal which the petitioner intended to file in this Court. There can therefore be no doubt that the judicial power under Art. 142 and the Executive power under Art. 161 can within certain narrow limits be exercised in the same field. The question that immediately arises is one of harmonious construction of two provisions of the Constitution, as one is not made subject to the other by specific words in the Constitution itself. As already pointed out, Art. 161 contains no words of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to in order that there may not be any conflict between them. On that principle the power under Art. 142 which operates in a very small part of the field in which the power under Art. 161 operates, namely, the suspension and execution of sentence during the period when any matter is sub-judice in this Court, must be held not to be included in the wider power conferred under Art. 161. 26. In this connection Mr. Seervai drew our attention to the power of nolle prosequi. It may be mentioned that that power is not analogous to the power of pardon 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 s. 333 of the Code results in a discharge only and may leave it open, for example, to a private party to bring a complaint in the proper court unless the presiding judge directs that the discharge shall amount to an acquittal. Under s. 494 the withdrawal of a case c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would follow that what is covered in Art. 142 is not covered by Art. 161 and similarly what is covered by s. 426 is not covered by s. 401. On that interpretation Mr. Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign state to grant pardon and the power of the courts to deal with a pending case judicially. 28. 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 O. 21, r. 5. He contended that Art. 145 under which rules have been framed by this Court is in terms subject to the provisions of any law made by Parliament, and he also emphasised the fact that before the rules can come into force they have to obtain the approval of the President, In other words, the argument is that the rule-making power of this Court is no more than sub-ordinate legislation, and so if there is a conflict between O. 21, r. 5 and Art. 161 the rule must yield to the powers conferred on the Governor by Art. 161. This argument overlooks the fact that in substance and effect the conflict is not between the said rule and Art. 161 but between the wide powers confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect be set aside by the Governor by ordering an unconditional suspension of the sentence imposed on the petitioner concerned. This illustration clearly brings out the nature of the controversy which we are called upon to decide in this case. If Mr. Seervai's argument is accepted it would inevitably mean that by exercising his power under Art. 161 the Governor can effectively interfere with an order passed in the same matter by this Court in exercise of its powers under Art. 142. It is obvious that the field on which both the powers are operating is exactly the same. Should the sentence passed against an accused person be suspended during the hearing of an appeal on the ground that an appeal is pending ? That is the question raised both before this Court and before the Governor. In such a case it would be idle to suggest that the field on which the power of the Governor under Art. 161 can be exercised is different from the field on which the power of this Court can be exercised under Art. 142. The fact that the powers invoked are different in character, one judicial and that other executive, would not change the nature of the field or affect its identity. We have given our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be for this Court, when moved in that behalf, either to apply r. 5 of O. 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. 32. A great deal of argument was addressed to us as to 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. 33. 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 hearing without requiring the petitioner to surrender in view of the order of the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force . Article 161 which is in Part VI is as follows :- The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends . Article 142(1) is as under :- The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it . Both articles 72 and 161 give the widest power to the President or the Governor of a State as the case may be and there are no words of limitation indicated in either of the two articles. It was argued that under arts. 142 and 145(1) of the Constitution certain powers are conferred on the Supreme Court and if the articles conferring powers on the President and the Governors are read along with the power given to the Supreme Court they create a conflict and therefore to give a harmonious interpretation to all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for an offence which is bailable, may order that he be release on bail. The period during which the sentence is suspended shall be omitted in reckoning the completion of the punishment . 41. The Criminal Procedure Code was re-enacted in 1882 being Act X of 1882. The power to suspend or remit sentences was contained in a separate chapter. viz., Chapter XXIX headed Suspensions, Remissions and Commutations of Sentences . The relevant provision was s. 401 :- S. 401. When any person 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 hearing contained shall be deemed to interfere with the right of Her Majesty to grant Pardons, reprieves, receipts, or remissions of punishment . 42. The power of the appellate courts as to suspension of sentences pending appeals was given in s. 426 which was in Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ............ (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 sub-section was added later). 43. 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 offences and to release on bail in bailable case. In the Code of 1872 also the power of the Governor General and of the local Government was one of remission of punishment and the power of the appellate court was of suspension of sentences pending the appeal. In s. 401 of the Act of 1882 the legislature chose to use the words suspension 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o grant pardons, reprieves, respites or remissions of punishment. 47. 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 federal system with division of subjects between the center 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 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. 48. Historically in England the Kind as the autocratic head of the Government always had the power to pardon. 49. This was a part of that special pre-eminence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcy dictated by the law of nature in favourem prolis . Bk. 4, chapt. 31, pp. 394, 395. 52. After imposition of the sentence execution of the sentence may be suspended for a time which is known as respite and may be granted by there king or by the Court. Orfield's Criminal Procedure from Arrest to Appeal, p. 529 53. As the possessions of the kings of England expanded and several new 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 offences. 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 sufficiently 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 untrammelled and without control and in absolute freedom except that prescribed by the Constitution; Craies on Statute law, page 483. 54. In the Constitution the power of the President is the same as it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority as exercised by the English Crown, or its representatives in the Colonies. At that time both Englishmen and Americans attached the same meaning to the words pardon . In the convention which framed the Constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment. We must then give the word the same meaning as prevailed here and in England at the time it found a place in the Constitution. This is in conformity with the principles laid down by this court in Cathcart v. Robinson, 5 Pet. 264; and in Flavell's case, 8 Watts Serg. 197; Attorney General's brief . 57. In Ex parte Grossman 69 L.Ed. 527, 530, 532, 535 Taft, C.J., said :- ................................................ .................. The language of the Constitution cannot be 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 vocabula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... American parallel would be wholly legitimate. 60. 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 in a monarchy is inherent in the King and in a Republic in 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 Governors in America 67 C.J.S. 565. 61. Wayne, J., in the matter of Ex parte Wells 15 L.Ed. 421,424 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 18 L.Ed 366, 370, 371 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 65. In Ex Parte Garland 18 L.Ed 366, 370, 371, it was held that the President's pardon was not subject to legislative control, said Field, J., the law thus conferred is unlimited ................ It extends to every offence known to the law and may be exercised at any time after its commission ....................... The power of the President is not subject to legislative control. Congress can neither limit the effect not exclude from its effect any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restriction ................ . In Ex parte Grossman 65 L.Ed 527, 530, 532, 535 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arland 18 L.Ed 366, 370, 371 and United States v. Klein 20 L.Ed 519 In the former case the President had given a pardon 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 legislature control and in the latter which was a conditional pardon the power of the legislature was held not to be exercisable. 69. The power of the executive can be exercised at any time. This is so in England, in America and in India. The King , said Lord Coke, can forgive any crime, offence, punishment or execution either before attainder, sentence or conviction or after ; 3 Insti. 233; Hawkins' Pleas of the Crown bk. 2, Chapt. 37. In the Indian Statute the words any time are expressly used in s. 401 of the Criminal Procedure Code and in England it is an accepted practice that the Crown can pardon before or after conviction or before trial. As far as the power of pardon before trial is concerned it can be exercised by entering nolle prosequi which is also the law in India. Under s. 333 of the Code of Criminal Procedure the Advocate General can, in cases tried before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by Parliament and can be changed by the court with the approval of the President. The change of an article, on the other hand, is to be in accordance with the provisions of the Constitution and therefore merely because this Court has also the power under the rules to grant suspension of a sentence and it has made rules that it will not entertain any petition for leave to appeal unless the petitioner surrenders himself to the sentence cannot override the provisions of art. 161; because if there is irresolvable conflict between the article and the rules must give way, being subordinate legislation. 73. It was argued that the power of the Court under articles 142 145 and of the Governor under art. 161 are mutually inconsistent and therefore the power of the Governor does not extend to the period the appeal is pending in this Court because law does not contemplate that two authorities, i.e., executive and judicial should operate in the same field and that it is necessary that this court should put a harmonious construction on them. Article 142 of the Constitution, it was contended, is couched in language of the widest amplitude and comprises powers of suspension of sentences e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 two has been pointed out in United States v. Benz 75 L.Ed 354 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 imposed. At page 358 the distinction was stated as follows :- The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut 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 the imposition of the sentence in the first instance . According to Willis Courts may exercise the power of suspending sentence although this, li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances 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. 79. As to suspension of sentence again in s. 426 of the Criminal Procedure Code it is expressly stated that an appellate court can suspend the sentence for reasons to be stated; no such limitation is imposed on the executive under s. 401 of the code. The language of the two sections themselves shows the field in which the two powers operate although the effect may be the same. It is relevant to consider in this connection the grounds on which a court acts in regard to offences punishable with death or imprisonment for life (s. 497 of Cr.P.C.) but no such restrictions impede executive action. Similarly when the Supreme Court acts under art. 142 it acts judicially and takes only those facts into consideration which are sufficient in the judicial sense to justify the exercise of its power : so would be the case when the power is exercised under the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 if the language would remain unaffected before the petition for leave to appeal is filed and after the decision of the appeal but the power would remain suspended during the pendency of the appeal proceedings even though the power of pardon and of commutation remains intact and the suggested restriction is not borne out by the language of the article. And this construction is opposed to decisions of courts of America where the power is similar as in India. Even on the analogy of the Privy Council case Balmukand v. King Emperor 42 I.A. 133 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 until that date the reprieve was necessary and proper. In Rogers v. Peck 50 L.Ed 256 reprieve was granted for a period of time extending beyond the hearing of the appeal proceedings. 83. If the argument as to want of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and O. 41, r. 5 of the Code of Civil Procedure would show but even if it applied to criminal proceedings it would be of little assistance in understanding the meaning of art. 142(1) in any different manner from what has been said above. But s. 295(2) is pressed into service to show that wherever the power of the executive is intended to be overriding it is specifically so stated. So construed the power exercisable by the Governor General in his discretion and of the Governor will be of lesser amplitude and subject to the limitation of s. 209(3), whereas the power of the King or the Governor General acting under S. 295(2) will not be so which is seemingly incongruous. Besides the words nothing in this Act shall derogate in s. 295(2) only emphasize the constitutional position of the King's prerogative and of his delegate and was more in the nature of 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That would have the effect of diminishing the clearness of section 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 art. 161 are clear and unambiguous. It is an unsound construction to put a fetter on the plenitude of the powers given in that article by reading an earlier article which deals with the powers of a different department of Government and uses language which speaks with less perspicuity . (3) Moreover it is a relevant consideration in the matter of interpretation that the two articles are in two different parts. There is ample authority for the view that one is entitled to have regard to the indicia afforded by the arrangement of sections and from other indication; Dormer v. New Castle upon-Tyne Corporation [1940] 2 K.B. 204 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 constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. The rules of interpretation on this point have thus been stated : (a) It is presumed that legislature does not deprive the State of its prerogative powers unless it expresses its intention to do so in express terms or by necessary implication. Province of Bombay v. Municipal Corporation of the City of Bombay 73 I.A.271; Director of Rationing Distribution v. Corporation of Calcutta (Criminal Appeal No. 158 of 1956). (b) It seems impossible to suppose that so material a change in the constitutional powers of the Governor was intended to be effected by a side wind. (c) The law will not allow alteration of a Statute by construction when the words may be capable of proper operation without it; Kutner v. Philips [1891] 2 Q.B. 267 (d) It cannot be assumed that the Constitution has given with one hand what it has taken away with another; Dormer v. New Castle-upon-Tyne Corporation [1940] 2 K.B. 204 (e) If two sections are repugnant, the known rule is that the last must prevail : Wood v. Riley (1867-8) 3 C.P. 26 per Keating, J. (7) The power given to the Governor in regard to pardons is a specific power specially conferred as was vested in the colonial and British Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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