The power of the executive to consider and allow representation for parole is eclipsed when the Supreme Court is seized of an appeal filed by the convict.

SIDDHARTH MRIDUL, J.

1. The present petition under Article 226 of the Constitution of India assails the order dated 15th January, 2016 rejecting the petitioner’s representation for grant of parole and seeks a direction in the nature of mandamus to the competent authority to release him on parole.

2. Mr. Rajesh Mahajan, learned Additional Standing Counsel (Crl.) appearing on behalf of the official respondent has raised a preliminary objection with regard to the maintainability of the present petition predicated on the ratio of a judgment rendered by a Constitution Bench of the Supreme Court of India in K.M. Nanavati vs. State of Bombay (now Maharashtra) reported as AIR 1961 SC 112. In paras 18, 19, 21, 23 and 25 of the said report, the Supreme Court observed as follows:-

“18. …The power under Art. 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 Art. 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 application for special leave to appeal has not been disputed and could not have been disputed keeping in view the very wide terms in which Art. 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 Art. 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 Art. 161 and by this Court under Art. 142 because the power under Art. 161 is executive power and the power under Art. 142 is judicial power 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 Art. 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. 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 limitation; in the same way, Art. 142 contains no word