Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
K.M. Nanavati Vs. The State of Bombay
AIR 1961 SC 112, [1961] 1 SCR 497
Hon’ble Judges/Coram: B.P. Sinha, C.J., J.L. Kapur, K. Subba Rao, K.N. Wanchoo and P.B. Gajendragadkar, JJ.
Date of Decision: 05.09.1960
FACTS: –
The petitioner was Second in Command of Naval Ship Mysore which came to Bombay in the beginning of March, 1959. Soon thereafter he was arrested on a charge of murder under s. 302 of the ’Indian Penal Code and was placed, and continued to remain, in naval custody all along during his trial. In due course he was placed on trial by a jury before the Sessions Judge, Greater Bombay, in which the jury returned a verdict of not guilty by a majority; but the Sessions judge disagreeing with the verdict of the jury made a reference to the High Court which convicted the petitioner under s. 302 of the Indian Penal Code and sentenced him to imprisonment for life. On the same day when the High Court pronounced its judgment the Governor of Bombay passed an order under Art. 161 of the Constitution of India suspending the sentence passed by the High Court of Bombay on the petitioner until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence was disposed of and subject meanwhile to the condition that he shall be detained in the Naval Jail custody. A warrant for the arrest of the petitioner which was issued in pursuance of the judgment of the High Court was returned unserved with the report that it could not be served in view of the order of the Governor suspending the sentence passed upon the petitioner.
In course of the hearing of an application for leave to appeal to the Supreme Court filed by the petitioner in the High Court the matter of the unexecuted warrant was placed before it and a Special Bench of the High Court after examining the validity of the action taken by the Governor came to the conclusion that the order passed by the Governor was not invalid, that the order for detention of the petitioner in naval custody was not unconstitutional and that the sentence passed on the petitioner having been suspended, the provisions of 0rder XXI, Rule 5, of the Supreme Court Rules did not apply and it was not necessary for the petitioner to surrender to his sentence. Thereafter the petitioner filed an application for special leave in the Supreme Court and also another application praying for exemption from compliance with the aforesaid rule and for the hearing of his application for special leave without surrendering to his sentence.
ISSUE: –
What is the scope and ambit of the power conferred upon the Governor under Article 161 of the Indian Constitution?
JUDGMENT: –
Power under Article 161 is exercised by the executive while the power under Art. 142 is that of the judiciary; but merely because one power is executive and the other is judicial, it does not follow that they can never be exercised in the same field. The field in which the power is exercised does not depend upon the authority exercising the power but upon the subject-matter. 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 Article 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. 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 both, the principle of harmonious construction will have to be adopted in order to avoid conflict between the two powers. 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 Article 142 is in operation and the matter is sub-judice in this Court.
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 seizing 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 functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution.
Keeping in mind the abovementioned considerations, conclusion is inevitable 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 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.
HELD: –
The order of the Governor granting suspension of the sentence could only operate until the matter became sub judice and as soon as it becomes sub-judice, the powers of judiciary comes into picture.
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