Thaivalappil Kunjuvaru Vareed vs State Of Travancore-cochin

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1955 Supreme(SC) 111

SUPREME COURT OF INDIA
1st December, 1955
S.R. DAS, ACTG. C.J.I., BOSE, BHAGWATI, JAGANNADHA DAS AND SINHA, JJ.
Thaivalappil Kunjuvara Varied, Appellant
Versus
State of Travancore - Cochin, Respondent.
Criminal Appeal No. 90 of 1955.
Advocates appeared
Mr. B. R. L. Iyenger, Advocate, for Appellant; Mr. Sardar Bahadur, Advocate, for Respondent.

Advocates:
B.R.L.Iyengar, SARDAR BAHADUR SAHARYA

Headnote:Articles 72, 161, 238, 362 and 372 (1)-Prerogative of Maharaja of Cochin relating to execution of death sentences-If inconsistent with the Constitution and stands repealed-Criminal Procedure Code, 1908, Ss. 401, 402, and 402-A.
       Held: In pursuance of Article X(4) of the covenant the legislative assembly of the State of Travancore-Cochin resolved that the Constitution framed by the Constituent Assembly be adopted by the State. In consequence thereof the Rajpramukh of Travancore – Cochin issued a proclamation dated the 24th November, 1949, which inter alia provided:
       "I now hereby declare and direct-
       That the Constitution of India shortly to be adopted by the Constitution Assembly of India shall he the Constitution for the United State of Travancore and Cochin as for the other parts of India and shall be enforced as such in accordance with the tenure of its provisions :
       That the provisions of the said Constitution shall as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State."
       On the coming into force of the Constitution of India on the 26th January 1950, the State of Travancore-Cochin became a part of the Union of India and was one of the Part B States as provided under Article I Clause (2) taken with Part B of the First Schedule. The Constitution specifically provided for the prerogative of mercy in respect of sentences of death in Articles 72, 161 and 238. Article 72 provides for the power of the President, Article 161 for the power of the Governor in a Part A State, and Article 238 (I) taken with Article 161 for the power of the Raj Pramukh of Part B State. In the light of these provisions the continuance of the prerogative of the Maharaja of Cochin relating to the execution of the death sentences with reference to the ex-State of Cochin would be inconsistent with the new Constitution.
       1. Article 71 (1) of the Constitution reads:
       "All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final" Such power, therefore, must be taken to have be-en superseded and abrogated. It would follow that Article XXI of the Covenant of May, 1949, no longer survives.
       (2) The Code of Criminal Procedure and along with it sections 401,402 and 402-A thereof, relating to commutation of sentences, having been made specifically applicable to all Part B States by Central Act I of 1951, the prerogative under the old Cochin law must be deemed to have been repealed or abrogated by competent legislative authority after the coming into force of the Constitution.
       (3) Article 362 of the Constitution has no bearing. It refers only to personal rights, privileges and dignities of the Rulers of Indian States. - Sections 401, 402, 402A, as applicable to Part B States Prerogative of Maharaja of Cochin relating to execution of death sentences If Inconsistent with the Constitution and stands repealed.

Judgement

JAGANNADHADAS, J. : This is an appeal by special leave and arises under somewhat unusual circumstances. The appellant was convicted of murder in Session Judge of Trichur now in the State of Travancore-Cochin and sentenced to death. The sentence was in due course confirmed by the High Court and an application for leave to appeal against it to this Court was rejected.

The appellant filed mercy petitions to the Raj Pramukh to Travancore - Cochin and to the President of India and both of them were rejected. After all these attempts had failed, the Sessions Judge issued a warrant on the 29th March, 1955, fixing 6th April, 1955, for the execution of the prisoner. Meanwhile, the Superintendent, Central Jail, Viyyur, where the condemned prisoner was lodged, informed the Sessions Judge by his letter dated the 1st April, 1955, that the prisoner had sent a mercy petition to the Maharaja of Cochin and requested for directions, since no orders had been received in respect of that petition.

It may be mentioned that the Sessions Division of Trichur is admittedly in the former State of Cochin. It does not appear from the record whether this mercy petition to the Maharaja of Cochin was sent before or after the mercy petitions of the Raj Pramukh of Travancore-cochin and to the President were disposed of.

On receipt of the letter dated the 1st April, 1955, from the Superintendent, Central Jail, the Sessions Judge passed an order that the circumstances of the case demanded that the execution of the sentence should not take place on the date already fixed. He accordingly issued an order staying execution of the sentence previously ordered by his warrant dated the 29th March, 1955.

At this stage, the Public Prosecutor filed an application in the Sessions Judge on the 30th May, 1955, praying that the stay may be vacated and that fresh directions to execute the warrant may be issued. On that application, the Public Prosecutor raised the question that a mercy petition to the Maharaja of Cochin, who as such, has lost sovereignty over the territory forming part of the previous Cochin State, and hence also lost his prerogative of pardon, was incompetent and could not stand in the way of the warrant being executed.

The learned Sessions Judge dealt with this question and agreed with the contention of the Public Prosecutor. Accordingly he vacated the stay and issued a fresh warrant for execution of the prisoners giving a week s time to the prisoner to take the matter on appeal to the High Court, if so advised.

The prisoner filed an appeal to the High Court and the learned Judges of the High Court after consideration of the arguments on both sides agreed with the view taken by the learned Sessions Judge, and dismissed the appeal by its Judgment dated the 17th June, 1955. The present appeal is against this order of the High Court.

2. For the hearing of this appeal counsel was assigned to the appellant amicus curiae and all the relevant constitutional provisions have been fully and fairly placed before us. Learned counsel appearing for the State has also been heard. We are satisfied that the question that has been raised does not admit of substantial argument and that the view taken by both the Courts below is correct.

3. The entire basis for any argument on behalf of the appellant is the pre-existing undoubted power of the Maharaja of Cochin to exercise the prerogative of pardon in respect of a sentence of death passed by the Courts within his state. That prerogative right has been affirmed in Article XXI of the Covenant dated the 29th May, 1949, entered into between the Rulers of Travancore and Cochin for the formation of the United States of Travancore and Cochin. The Article is in the following terms :

"Notwithstanding anything contained in the preceding provisions of this Covenant the Rulers of Travancore and Cochin shall continue to have, and exercise, their present power of suspension, remission or commutation of death sentences in respect of any pers

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