1. Conviction for murder — Life imprisonment — Governor's order suspending sentence under Article 161 — Application for exemption from surrendering to sentence before hearing special leave petition. (Para 1 , 2 , 3 , 4 , 5 )
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1960 Supreme(SC) 200
SUPREME COURT OF INDIA
5th September, 1960.
B.P. SINHA, C.J.I., J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA RAO AND K.N. WANCHOO, JJ.
K. M. Nanavati, Petitioner
Versus
The State of Bombay (now Maharashtra), Respondent.
Criminal Misc. Petn. No. 320 of 1960.
Advocates Appeared
M/s. S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co., for Petitioner; Mr. H. N. Sanyal, Addl. Solicitor-General of India and Mr. S. M. Sikri, Advocate-General for the State of Punjab (Mr. T. M. Sen, Advocate, with them), for Attorney-General for India; Mr. H. M. Seervia, Advocate-General for the State of Bombay (now Maharashtra), (M/s. Atul Setalvad and R. H. Dhebar, Advocates, with him), for Respondent, Mr. C. B. Aggarwala, Senior Advocate (amicus curiae).
Advocates:
Atul Chitale, C.B.AGARWAL, H.M.SIRVAI, H.N.SANYAL, J.B.DADACHAN, P.L.VOHRA, R.H.Dhebar, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.M.Sikri, S.N.ANDLEY, T.M.SEN
Atul Chitale, C.B.AGARWAL, H.M.SIRVAI, H.N.SANYAL, J.B.DADACHAN, P.L.VOHRA, R.H.Dhebar, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.M.Sikri, S.N.ANDLEY, T.M.SEN
The Governor's power to suspend a sentence under Article 161 cannot be exercised while the matter is sub judice before the Supreme Court, as the Court's judicial power under Article 142 prevails through the principle of harmonious construction to avoid jurisdictional conflict.
Headnote:(A) Constitution - Articles 142, 145, and 161 - Code of Criminal Procedure - Sections 401 and 426 - Power of the Governor to suspend sentence vs. Judicial power of the Supreme Court - Harmonious construction - Rule of surrender before hearing of special leave petition.
(B) The power of the Governor to suspend a sentence under Article 161 and the power of the Supreme Court to pass orders for complete justice under Article 142 must be harmonized. When a matter is sub judice before the Supreme Court, the judicial power under Article 142 prevails over the executive power under Article 161 regarding the suspension of sentence. (Paras 18, 19, 21)
(C) Section 426 of the Code of Criminal Procedure deals with a special case where an appeal is pending, whereas Section 401 deals with the general power of the executive. These must be harmonized such that the appellate court's power governs the period of pending appeal. (Paras 16, 17)
(D) Rules framed under Article 145 requiring a convicted person to surrender before a petition for special leave is heard are in aid of the Court's power under Article 142. Such rules are not subordinate to the Governor's power under Article 161 when the matter is sub judice. (Paras 14, 22)
Facts of the case:
A petitioner convicted of murder and sentenced to life imprisonment by a High Court had his sentence suspended by the Governor under Article 161 until the disposal of an intended appeal to the Supreme Court. The petitioner sought exemption from the requirement of surrendering to the sentence, as mandated by the Supreme Court Rules, arguing that the Governor's order made surrender unnecessary.
Findings of Court:
The Governor's power to suspend a sentence under Article 161 cannot operate during the period the matter is sub judice before the Supreme Court. Once a petition for special leave is filed, the Court is seized of the case, and any decision regarding suspension or bail falls within the judicial domain under Article 142.
Issues: Whether the Governor's power to suspend a sentence under Article 161 impinges upon the judicial powers of the Supreme Court under Article 142, and whether such an order exempts a petitioner from the requirement of surrendering to the sentence under the Court's rules.
Ratio Decidendi: To avoid conflict between the executive power and judicial power, the principle of harmonious construction is applied. While the Governor's power is wide, it does not include the power to suspend a sentence while the matter is sub judice in the Supreme Court. The Court's power to ensure complete justice and regulate its own procedure takes precedence during the pendency of the proceedings.
Result: Petition dismissed.
Legal Category Hierarchy
- constitutional law
- crime and sentencing
- practice and procedure
Table of Contents
2. Plenary nature of Governor's power under Article 161 versus the Supreme Court's rule-making power under Article 145 and jurisdiction under Article 142. (Para 8 , 9 , 22 )
3. Need for harmonious construction between Article 161 and Article 142 to prevent executive interference with judicial functions when a matter is sub judice. (Para 14 , 16 , 17 , 18 , 19 , 21 , 23 , 24 )
4. The Governor's power to suspend sentences under Article 161 does not operate during the period a matter is sub judice before the Supreme Court under Article 142. (Para 18 , 19 , 21 , 25 )
5. Application for exemption from surrendering to the sentence is dismissed. (Para 27 , 82 )
6. Does the Governor's power to suspend a sentence under Article 161 override the Supreme Court's jurisdiction under Article 142?
No. To avoid conflict and preserve the rule of law, the court applied harmonious construction, holding that Article 161 does not deal with the suspension of sentences while the matter is sub judice in the Supreme Court and Article 142 is in operation. (Para 18 , 19 , 21 , 23 )
7. What is the scope of the Governor's power under Article 161 of the Constitution?
The Governor has plenary power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence against any law relating to a matter to which the executive power of the State extends. (Para 8 , 12 , 13 )
8. Is a convicted person required to surrender to their sentence before a special leave petition is heard by the Supreme Court?
Yes, under Order XXI, Rule 5 of the Supreme Court Rules, a petitioner sentenced to imprisonment must generally surrender to the sentence before the petition is posted for hearing, unless the Court orders otherwise. (Para 14 , 22 )
9. Why is the principle of harmonious construction applied to Articles 161 and 142?
Because both articles are unfettered and wide in amplitude. To prevent the Executive from effectively overriding judicial orders in pending cases, the court held that the narrower judicial power under Article 142 prevails when the matter is sub judice. (Para 18 , 19 , 21 , 23 )
Judgment
SINHA, C.J.I. : This matter has been placed before the Constitution Bench in rather 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 Art. 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 Art. 142 of the Constitution.
2. 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 I.N.S. Mysore which came to Bombay in the beginning of March 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 majority of eight to one. The learned Sessions Judge made a reference to the High Court under S. 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 S. 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, I, 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 No. 22 of IVth Sessions of 1959 until the appeal intended to be filed by him in the SC against his conviction and sentence is disposed of and subject meanwhile to the conditions that he shall be detained in the Naval Jail Custody in I.N.S. Kunjali .
3. 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 unserved 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 together with the unexecuted warrant to the High Court.
4. In the meantime an application for leave to appeal to the SC 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 matt
