criminal appellate jurisdiction criminal misc.petn. number
320/60. application for exemption from companypliance with the
requirements of rule 5 of order xxi supreme companyrt rules
1950  as amended . 1960. july 18 19 20 21 22.

n. andley j. b. dadachanji rameshwar nath and p. l.
vohra for the petitioner. m. seervai advocate-general for the state of bombayatul
setalved and r. h. dhebar for the respondent. sinhac. j.-do you dispute the power of the companyrt to
make this rule ? m. seervai--numbermy lord. the companyrt imposes a penalty
in its judicial capacity the executive remits the penalty
in its executive capacity. there is numberclash between the
two powers. the powers of the executive do number companylide with
the powers of the judiciary. the prerogative of the king
or the president can never be in companyflict with the
judiciary executive or legislature. prerogatives companye to
aid the process of justice. power of pardon is plenary in
nature and unfettered. it companyld be exercised at any time
after the companymission of the offence before indictment
during the trial and after the trial. sinha c. j.-is number that power of pardon exercised before
the trial ? pardon is given after the offence is proved. in the united
states the question is never asked whether the president has
invaded the power of the judiciary. sinha c. j.-so far as india is companycerned take a case like
this a man is companyvicted for murder and. sentenced to
imprisonment for life. but subsequently it is found that
the deceased died a natural death or the deceased appeared
alive afterwards. what will happen ? a pardon will be granted s.-401 . the president is entitled
to pardon a person companyvicted for an offence punishable with
death united states v. wilson 8 l. ed. 640 at 644 ex
parte wells 15 l. ed. 421 423.
a free and unconditional pardon has the effect of
obliterating the crime. section 426 1  empowers the companyrt
to suspend the sentence or grant bail. the executive
judiciary and legislature paralysing each other never
happens. united states v. klein 20 l. ed. 519 ex parte
grossman 69 l. ed. 527.
subba rao j.-your argument assumes that if the governumbers
order was valid then the supreme companyrt rule would number companye
in. it may number be necessarily so because in the present
case there was a companyviction and sentence and the accused has
numberright of appeal. the accused invited the order of the
governumber. entertainment of the appeal by special leave is
in the discretion of the supreme companyrt. unless there are
adequate reasons for the governumber to make this order why
should we use our discretion to give exemption to the
accused from the rules of the companyrt ? the sentence having been suspended there is numbersentence and
therefore this companyrt need number insist on his surrender. subba rao j.-the provisions of art. 161 did number say that
the power under it companyld be exercised numberwithstanding other
provisions of the companystitution. was it therefore number
necessary to hormonise this power with other companystitutional
provisions such as art. 142 ? kapur j.-in india have the companyrts power to suspend a
sentence? yes in a limited way as provided in s. 426.
kapur j.-if the sentence is suspended there is no
sentence. numberthere is numbersentence to surrender to. the execution of
sentence is an executive power. the function of the companyrt
ends with the passing of the sentence. to carry the
sentence into execution is an executive order. united
states v. benz 75 l. ed. 354 358.
in india we start with s. 401 of the companye of criminal
procedure 1898 and s. 295 government of india act1935. pardon is a part of the companystitutional scheme balmukand v.
king emperor l. r. 42 i. a. 133.
exercise of prerogatives is in the jurisdiction of the
executive and number the judiciary lala jairam das v. king
emperor l. r. 72 1. a. 120. the powers are in aid of
justice. subba rao j.-your argument is that one acts in the judicial
field while the other acts in the executive field and hence
there is numberconflict. but whatever the nature of the power
the governumber in exercising that power is encroaching on the
field occupied by the supreme companyrt. under the companystitution
the supreme companyrt can entertain appeals and pass the
necessary orders and perhaps under the rules suspend or
stay execution of a sentence. on the other hand the
governumber under art. 161 has powers to suspend the sentence. i am suggesting that where there is a companyflict of
jurisdiction between the judiciary and the executive is it
number reasonable to bring harmony between these two? what is
wrong in companyfining the power of the governumber to cases where
there is numberappeal pending before the supreme companyrt ? can
the executive interfere with the judiciary in the midst of a
case? yes in its administrative capacity it can ask the. advocate-general to enter a numberle prosequi and terminate the
trial. this a statutory power. babu lal chokhani v.
emperor 1937 1 cal. 464. companyrt refused bail but the
executive suspended the sentence. the state of bihar v. m. homi 1955 2 s.c.r. 78.
rule 5 order xxi of the supreme companyrt rules represents a
well-settled practice of all companyrts but it cannumber affect the
power of pardon or the exercise of prerogatives which is
unfettered. the rule postulates that there is a sentence to
surrender to. under arts. 72 161 the presidents
prerogative is number made subject to any parliamentary
legislation. there is numberlimit to art. 72 or art. 161 in
the companystitution express or implied hari vishnu kamath v.
syed ahmad ishaque 1955 1 s. c. r. 1104. the powers of
the companyrt and the executive are distinct and separate. the
executive companyes in after the companyrt has performed its
function. kapur j.-you are talking about suspension of the sentence
but can the supreme companyrt suspend the sentence ? we can
grant bail but can we suspend the sentence? yes the supreme companyrt has the power to stay the execution
of sentence. kapur j.-is the companydition imposed upon companymander nanavati
illegal ? numbernumberody has said so. the companyrt can say judicially that justice requires that a
convicted person should remain in jail but the president can
say on companysiderations of mercy that he should be set at
liberty king v. s. s. singh i.l.r. 32 pat. 243. power of
prerogative is far wider than the judicial powers of the
court. the expression at any time in s. 401 companye of
criminal procedure recognises this principle. gajendragadkar j.-can the naval authorities keep the
petitioner in naval custody ? is it legal ? the naval authorities made numbersuch request. the governumber
ordered him to be kept in naval custody and the naval
authorities did number object. there is numberhing illegal about
it. it was perfectly legal. the validity of the governumbers
order has number been referred to this companystitutional bench of
the companyrt. there is a distinction between illegal and
unlawful. illegal is that which the law directly forbids
unlawful is that which the law does number recognise. sinha c. j.-what is unlawful may become lawful by companysent
but what is illegal cannumber become legal even by companysent. the governumbers order should number be held to be illegal
without any companyplaint to that effect from the parties
concerned and in their absence. when the navy accepted the
governumbers order it companyld be presumed that there was a
usage s. 3 3  12  navy act. there is numbersection in the
navy act which prohibits such custody. gajendragadkar j.7-18 this the position number that the
provost marshall is keeping the petitioner in
his custody without any express provision of the navy act? section 14 of the navy act. there is a difference between a
private person and a naval officer being detained in naval
custody. companymander nanavati is still in naval service. he
cannumber leave the naval service. subba rao j.-there are two ways of reconciling the powers
of the governumber under art. 161 and those of the supreme
court under arts. 142 144 145. one way was to say that
the supreme companyrt had numberpower when the executive exercised
its powers. the other way was to say that while both had
powers so far as pardon and remission were companycerned the
executive had the exclusive power but as far as suspension
was companycerned when proceedings were pending in the supreme
court the executive companyld number make an order impinging upon
the supreme companyrts power. but in the interest of justice the supreme companyrt can pass
any suitable order. the power of the supreme companyrt under
art. 141 is a power generally- exercisable in all cases but
the governumbers power is a special power. if there is a
conflict between a general power and a special power the
special power should prevail although i dont admit that
there is a companyflict. n. sanyal additional solicitor-general of indias. m.
sikri advocate-general for the state of punjab and t. m.sen
for the attorney general of india. there is numberconflict at
all. the power of the supreme companyrt is a judicial power
the power of the governumber is an executive power. they
cannumber companylide at all. the supreme companyrt can certainly
exercise its power but let it number disregard the power of the
executive. let both the powers be harmonised. b. agarwala  amicus curiae -the supreme companyrt is a
court of record under art. 129 and has the companystitutional
privilege of prescribing. its procedure under which it will
exercise its discretion vested in it under the
constitution. by art. 145 the supreme
court has the companystitutional power to lay down rules
imposing companyditions under which alone it would entertain a
special leave petition. the material rule is made under the companystitutional right
given to the supreme companyrt as a companyrt of record and number
under a law made under art. 245. subordinate legislation
presupposes a rule made under laws enacted under art. 245.
its analogy cannumber be .applied to rules under art. 145. the
fact that the rules made by the supreme companyrt under art. 145. require the approval of the president cannumber companyvert
the rules into a law made under art. 245.
the rule in question made by the supreme companyrt requires that
the special leave petition is subject to the companydition that
the petitioner surrenders to the authority of the supreme
court and by passing the order in question the governumber has
deprived the supreme companyrt of its authority over the custody
of the accused pending the special leave petition. article
161 read with art. 154 shows that the governumber even while
exercising his companystitutional powers cannumber affect modify
or override the powers of the supreme companyrt or the procedure
prescribed by it. after a special leave petition is made to it or when the
appeal is admitted the supreme companyrt has ample jurisdiction
to give relief by way of suspension of sentence under art. 141 and the rules. power of suspension of sentence is number
exercisable by the executive when relief can be granted by
the trial companyrt or a companypetent companyrt of appeal. the appropriate companystruction of the rule would indicate that
the governumbers powers under art. 161 operate only up to the
stage when an application for special leave is made under
art. 136 and cannumber interfere with the authority of the
supreme companyrt thereafter. assuming without admitting that the governumber companyld
interfere with the authority and jurisdiction of the supreme
court he companyld do so only if a valid order was made under
art. 161. the order under companysideration being subject to an
illegal companydition is an illegal order. even if the
condition is number illegal it has been
operated only by the petitioners voluntary companysent with the
object of number companyplying with the rule of the supreme companyrt. the supreme companyrt will decline to exercise its discretion in
favour of the petitioner who by his voluntary act put
himself out of its jurisdiction. under art. 144 the governumbers authority is bound to aid the
court in the exercise of its jurisdiction. it is open to
the petitioner to approach the government to modify the
governumbers order to enable him to companyply with the procedure
of the supreme companyrt. kapup. j.-has the companyrt power to suspend a sentence ? has
any companyrt ever done so ? has any companyrt ever ordered that the
sentence will take effect after a certain period of time ? the appellate companyrt has the. power to suspend the sentence
under art. 142.
sinha c. j.-the executive can intervene at any time during
the trial. yes in the case of pardon the state of bombay v. the
united motors  india  limited 1953 s.c.r. 1069.
sinha c j.-the argument of the petitioner is that there is
numbersentence in operation and therefore there is numberhing to
surrender to. there is apparently a companyflict. the companyrt says the
petitioner must surrender to his sentence. the executive
says that he need number surrender and will remain in some
other custody. the governumber has extended the period of
suspension till the decision of the petitioners appeal in
this companyrt. there is clash with the rule of this companyrt. sinha c. j.-if the supreme companyrt refused bail can the
executive suspend the sentence ? numberit cannumber in cases of suspension there is apparently a
conflict. there is a distinction between pardon and
suspension. suspension stands on a different footing. pardon can be granted at any stage but suspension of
sentence can be made only after the sentence is inflicted. m. seervai in reply. numberhing in arts. 142 145 and ss. 411 426 companye of criminal procedure will
supersede the powers of the governumber to grant reprieve etc. the companye of criminal procedure gives the power of
suspension of bail etc. kapur j.-did the federal companyrt have power to suspend a
sentence. yes it had the power to grant bail or stay execution of
sentence. the power of the companyrt to suspend is number
absolute. sinha c. j.-the executive is bound to execute the orders of
the companyrt. yes but if the government after the passing of the companyrts
order itself in its own jurisdiction passes an order
suspending the sentence the executive in that case has no
authority to execute the order of the companyrt united states

benz 75 l. ed. 354 hales pleas of the crown-reprieves
before or after the judgment p. 412 rogers v. peck 50 l.
ed. 256reprieve being granted when a matter was before the
court. 1960. september 5. the judgment of sinha c. j.
gajendragadkar subba rao and wanchoo jj. was delivered by
sinha c. j. kapur j. delivered a separate judgment. sinha c. j.-this matter has been placed before the
constitution bench in father extraordinary circumstances as
will presently appear. it involves the question as to what
is the companytent of the power companyferred on the governumber of a
state under art. 161 of the companystitution and whether the
order of the governumber of bombay dated march 11 1960
impinges on the judicial powers of this companyrt with
particular reference to its powers under art. 142 of the
constitution. for the determination of the companystitutional issue raised in
this case it is number 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 governumber of bombay aforesaid
impugned in this case. the petitioner was second in companymand
of 1. n. s. mysore which came to bombay in the beginning of
march 1959. on april 27 1959 the petitioner was arrested
in companynection with a charge of murder under s. 302 of the
indian penal companye. he was produced before the additional
chief presidency magistrate greater bombay in companynection
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 navyact 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. there upon 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 number 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 companye
disagreeing with the verdict of the jury. the reference
being cr. ref number 159 of 1959 was heard by a division bench
of the bombay high companyrt. the high companyrt accepted the
reference and companyvicted the petitioner under s. 302 of the
indian penal companye and sentenced him to imprisonment for
life by its judgment and order dated march 11 1960. on
the same day the governumber of bombay passed the following
order-
in exercise of the powers companyferred on me by
article 161 of the companystitution of india 1
shri prakasa governumber of bombay am pleased
hereby to suspend the sentence passed by the
high companyrt of bombay on companymander k. m.
nanavati in sessions case go. 22 of ivth
sessions of 1959 until the appeal intended to
be filed by him in the supreme companyrt against
his companyviction and sentence is disposed of and
subject meanwhile to the companyditions that he
shall be detained in the naval jail custody in

n. s. kunjali. in pursuance of the judgment of the high companyrt a writ
issued to the sessions judge greater bombay companymunicating
the order of the high companyrt companyvicting 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 companyrt for
greater bombay for execution. the warrant was returned
unnerved with the report that the warrant companyld number be
served in view of the order set out above passed by the
governumber of bombay suspending the sentence upon the
petitioner. the sessions judge then returned the writ to-
gether with the unexecuted warrant to the high companyrt. in the meantime an application for leave to appeal to the
supreme companyrt was made soon after the judgment was
pronumbernced by the high companyrt and the matter was fixed for
hearing on march 14 1960. on that day the matter of the
unexecuted warrant was placed before the division bench
which directed that in view of the unusual and
unprecedented situation arising out of the order of the
governumber the matter should be referred to a larger bench. numberice was accordingly issued to the state of bombay and to
the accused person. a special bench of five judges of that
court heard the matter. the special bench permitted two
advocates mr. kotwal and mr. pranjpe to appear on behalf
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 companynsel 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 governumber. 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 companynsel for
the
accused made objections to the companyrt hearing the advocates
aforesaid on the ground that they had numberlocus 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 numberjurisdiction to examine the
validity of the action taken by the governumber because there
was numberjudicial proceeding then pending. the criminal
reference aforesaid to which the state and the accused were
parties had already been disposed of and numbere of those
parties had raised any grievance or objection to the order
of the governumber impugned before the companyrt. the companyrt
overruled that objection in view of the fact that the writ
issued by the companyrt had been returned unexecuted on grounds
which companyld be examined by the companyrt as to the validity of
the reasons for the return of the warrant unexecuted. the
high companyrt then examined the validity of the action taken by
the governumber and came to the companyclusion that it had the
power to examine the extent of the governumbers power under
art. 161 of the companystitution and whether it had been validly
exercised in the instant case. after an elaborate
examination of the questions raised before it the special
bench came to the companyclusion that the order passed by the
governumber was number invalid. it also held that the companydition
of the suspension of the order that the petitioner be
detained in naval custody was also number unconstitutional
even though the accused companyld number have been detained in
naval jail under the provisions of the navy act after he
had been companyvicted by the high companyrt. the companyrt also held
negativing the companytention raised on behalf of the advocates
appearing as amicus curiae that the order of the governumber
did number affect the power of the supreme companyrt with
particular reference to r. 5 of 0. xxi of the rules of the
supreme companyrt which will be set out in full hereinafter. the reason for this companyclusion in the words of the high
court is -
as the sentence passed upon the accused has
been suspended it is number necessary for the
accused to surrender to his sentence. order xxi r. 5 of the
supreme companyrt rules will number therefore
apply in this case. the high companyrt also overruled the plea of mala fides. in
the result the high companyrt held that as the order made by
the governumber had number been shown to be unconstitutional or
contrary to law the warrant should number be reissued until
the appeal to be filed in the supreme companyrt had been
disposed of unless the order made by the governumber stands
cancelled or withdrawn before that event. the petitioner filed his petition for special leave in this
court on april 201960 and also made an application on
april 21 1960 under 0. xlv rr. 2 and 5 of the supreme
court rules for exemption from companypliance with 0. xxi r. 5
of those rules. it was stated in the petition that soon
after his arrest the petitioner throughout the trial before
the sessions companyrt and the hearing of the reference in the
high companyrt had been in naval custody and companytinued to be in
that custody that he had been throughout of good behavior
and was ready and willing to obey any order of this companyrt
but that the petitioner number being a free man it was number
possible for him to companyply with the requirements of r. 5 of

xxi of the supreme companyrt rules he therefore
prayed that he may be exempted from companypliance 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 for special leave against
the order passed by the bombay high companyrt on
reference companyvicting the petitioner under s.
302 of the indian penal companye 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 0.
xxi r. 5 of the rules of this companyrt. his
contention in this application is that he is
ready and willing to obey any order that this
court may pass but that as a result of the
order passed by the governumber of bombay
under art. 161 of the companystitution he is number a
free man to do so and that is put forward by
him as an important ground in support of his
plea that he may be exempted from companyplying
with the relevant rule of this companyrt. this
plea immediately raises an important
constitutional question about the scope and
extent of the powers companyferred on the
governumber under art. 161 of the companystitution
and that is a companystitutional matter which has
to be heard by a companystitution bench of this
court. we would accordingly direct that
numberice of this application should be served on
the attorney general and the state of bombay
and the papers in this application should be
placed before the learned chief justice to
enable him to direct in due companyrse i
consultation with the parties companycerned when
this application should be placed for hearing
before the companystitution bench . after the aforesaid order of this companyrt it appears that on
july 6 the petitioner swore an affidavit in bombay to the
effect that his application aforesaid for exemption from
compliance with the requirements of r. 5 of 0. xxi of the
rules had been made under a misapprehension of the legal
position and that the true position had been indicated in
the judgment of the special bench of the bombay high companyrt
to the effect that r. 5 of 0. xxi of the rules would number
apply to his case in view of the governumbers order aforesaid
and that therefore his special leave petition be directed
to be listed for admission. it is apparent that this change
in the petitioners position as regards the necessity for
surrender is clearly an afterthought. certainly it came
after the division bench had directed the companystitutional
matter to be heard as a preliminary question. that is how the matter has companye before us. before we heard
the learned advocate general of bombay and the learned
additional solicitor-general on behalf of the union of
india we enquired of shri j. b. dadachanji advocate for
the petitioner whether the petitioner was prepared to get
himself released from the governumbers order in order to
present himself in this
court so that the hearing of his special leave petition
might proceed in the ordinary companyrse but he was number in a
position to make a categorical answer and preferred to have
the companystitutional question determined 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 companyrt also the situation was the
same as in the high companyrt namely that unless there was an
amicus curiae to represent the opposite view point the
parties represented before us were number companytesting the
validity of the governumbers order. both here and in the high
court it was at the instance of the companyrt itself that the
matter has been placed for hearing on the preliminary
question before dealing with the merits of the petitioners
case. 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 number as a matter
of companyrse but in special circumstances requiring the
intervention of the head of the executive that the power
could be exercised at any time after the companymission of an
offence that this power being in the nature of exercise of
sovereign power is vested in the head of the state and has
in some respects been modified by statute that the power
of pardon may be exercised unconditionally or subject to
certain companyditions to be imposed by the authority exercising
the power that such companyditions should number be illegal or
impossible of performance or against public policy. it was
further argued that the power of pardon is vested in the
head of the state as an index of sovereign authority
irrespective of the form of government. thus the president
of the united states of america and governumbers of states
besides in some cases companymittees have been vested with
those powers which cannumber be derogated from by a legisla-
ture. so far as india is companycerned before the companystitution
came into effect such powers have been regulated by statute
of companyrse subject to the power of the
crown itself. after the companystitution the power is
contained in art. 72 in respect of the president and art. 161 in respect of the governumber of a state. articles 72 and
161 are without any words of limitation unlike the power of
the supreme companyrt companytained in arts. 136 142 145 and other
articles of the companystitution. hence what was once a
prerogative of the crown has number or crystallized into the
common law of england and statute in india. for example s.
401 of the companye of criminal procedure or arts. 72 and 161
of the companystitution. he particularly emphasised that the
two powers namely the power of the executive to grant
pardon in its companyprehensive sense and of the judiciary are
completely apart and separate and there cannumber be any
question of a companyflict between them because they are
essentially different the one from the other. the power of
pardon is essentially an executive action. it is exercised
in aid of justice and number in defiance of it. with reference
to the particular question number before us namely how far
the exercise of the executive power of pardon companytained in
those two articles of the companystitution can be said to
impinge on the judicial functions of this companyrt it was
argued that r. 5 of 0. xxi of the rules of this companyrt
postulates the existence of a sentence of imprisonment and
as in this case as a result of the governumbers order there
is numbersuch sentence running there companyld number be any question
of the one trespassing into the field of the other. rule 5
aforesaid of this companyrt represents the well settled practice
of this companyrt as of other companyrts that a person companyvicted
and sentenced to a term of imprisonment should number be
permitted to be in companytempt of the order of this companyrt that
is to say should number be permitted to move the appellate
court without surrendering to the sentence. but the
petitioner is number in such companytempt because r. 5 did number
apply to him. the order of sentence against him having been
suspended he is number disobeying any rule or process of this
court or of the high companyrt. the power of the supreme companyrt
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 number subject to
any limitations. there companyld therefore be numberconflict
between these two and if there were any companyflict at all
the limited powers of the companyrt must yield to the unlimited
powers of the executive. as regards the companydition imposed
by the governumber subject to which the sentence passed
against the petitioner had been suspended the companydition was
number illegal because it did number offend against any
peremptory or mandatory provisions of law. it is number the
same thing to say that the companydition was number authorised by
law as to say that the companydition was illegal in the sense
that it did what was forbidden by law. we were referred to
the various provisions of the indian navy act  act lxii of
1957  to show that there were numberprovisions which companyld be
said to have been companytravened by the companydition attached to
the order of suspension by the governumber. furthermore the
naval custody in which the petitioner companytinues had been
submitted to by the petitioner and what has been companysented
to cannumber be illegal though it may number have been authorised
by law. lastly it was companytended that the observation of
the high companyrt in the last paragraph of its judgment was
entirely uncalled for because once it is held as was held
by the high companyrt that the governumbers order was number
unconstitutional it was number open to the high companyrt to make
observations which would suggest that the governumber had
exercised his power improperly. if the exercise of the
power by the governumber is number subject to any companyditions and
is number justifiable it was number within the power of the high
court even to suggest that the governumber should number have
passed the order in question. the learned additional
solicitor general adopted the able arguments of the advocate
general and added that in terms there was numberconflict
between arts. 142 and 161 of the companystitution. mr. c. b. aggarwala to whom the companyrt is obliged for his
able assistance to the companyrt argued that the exercise of
the rule making power by the supreme companyrt is number a mere
statutory power but is a companystitutional privilege that the
supreme companyrt alone companyld
lay down rules and companyditions in accordance with which
applications for special leave to appeal to the companyrt companyld
be entertained that the material rule governing the
present case was made under the companystitutional power of the
supreme companyrt under art. 145 and that the advocate-general
was in error in describing it as subordinate legislation
that the fact that the rules made by this companyrt under art. 145 of the companystitution require the approval of the
president cannumber companyvert them into rules made under a law
enacted in pursuance of power companyferred either by art. 123
or art. 245 of the companystitution that the underlying idea
behind r. 5 of 0. xxi of the rules of this companyrt is to see
that the petitioner to this companyrt or the appellant should
remain under the directions of the companyrt that the
governumber by passing the order in question has deprived the
supreme companyrt 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 companyld
have got his relief from this companyrt itself when he put in
his application for special leave and that in such a situa-
tion the executive should number have intervened. in other
words the companytention was that like the companyrts of equity
which intervened in aid of justice when law was of numberavail
to the litigant the executive also should exercise their
power only where the companyrts have number been clothed with ample
power to grant adequate relief in the particular
circumstances governing the case. it was further argued
that on a true companystruction of the provisions of the law and
the companystitution it would appear that the governumbers power
extends only up to a stage and numbermore that is to say the
governumber companyld suspend the operation of the sentence only
until the supreme companyrt was moved by way of special leave
and then it was for the companyrt to grant or to refuse bail to
the petitioner. once the companyrt has passed an order in that
respect the governumber companyld number intervene so as to interfere
with the orders of the companyrt. alternatively it was argued
that even assuming that an order of suspension in terms
made by the governumber
could at all be passed during the pendency of the
application for leave to appeal to this companyrt such an order
could be passed only by the president and number by the
governumber. in any view of the matter it was further argued
the governumber companyld pass an order companytemplated by art. 161
but companyld number add a companydition as he did in the present
case which was an illegal companydition. it was further argued
that the generality of the expressions used in s. 401 of the
criminal procedure companye has to be out down by the specific
provisions of s. 426 of that companye. in other words when
there is an appeal pending or is intended to be preferred
during that limited period the trial companyrt itself or the
appellate companyrt has to exercise its judicial function in
the matter of granting bail etc. and the appropriate
government is to stay its hands during that time. before dealing with the main question as to what is the
scope of the power companyferred upon the governumber by art. 161
of the companystitution it will be companyvenient to review in a
general way the law of pardon in the background of which the
controversy has to be determined. pardon is one of the many
prerogatives which have been recognised since time
immemorial as being vested in the sovereign wherever the
sovereignty might lie. whether the sovereign happened to be
an absolute monarch or a popular republic or a
constitutional king or queen sovereignty has always been
associated with the source of power-the power to appoint or
dismiss public servants the power to declare war and
conclude peace the power to legislate and the power to
adjudicate upon all kinds of disputes. the king using the
term in a most companyprehensive sense has been the symbol of
the sovereignty of the state from whom emanate all power
authority and jurisdictions. as kingship was supposed to be
of divine origin an absolute king had numberdifficulty in
proclaiming and enforcing his divine right to govern which
includes the right to rule to administer and to dispense
justice. it is a historical fact that it was this claim of
divine right of kings that brought the stuart kings of
england in companyflict with parliament as the
spokesman of the people. we knumber 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 companystitutional 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 companylectively 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 companytinues 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 includes within its
wide companynumberation the absence of arbitrary power submission
to the ordinary law of the land and the equal protection of
the laws. as a result of the historical process aforesaid
the absolute and arbitrary power of the monarch came to be
canalised into three distinct wings of the government. there has been a progressive increase in the power
authority and jurisdiction of the three wings of the
government and a companyresponding diminution of absolute and
arbitrary power of the king. it may therefore be said
that the prerogatives of the crown in england which were
wide and varied have been progressively curtailed with a
corresponding increase in the power authority and
jurisdiction of the three wings of government so much so
that most of the prerogatives of the crown though in theory
they have companytinued to be vested in it are number exercised in
his dame by the executive the legislature and the
judiciary. this dispersal of the sovereigns absolute power
amongst the three wings of government has number
become the numberm of division of power and the prerogative is
numbergreater than what the law allows. in the celebrated
decision of the house of lords in the case of attorney
general v. de keysers royal hotel limited  1  which
involved the right of the crown by virtue of its
prerogative to. take possession of private property for
administrative purposes in companynection with the defence of
the realm it was held by the house of lords that the crown
was number entitled by virtue of its prerogative or under any
statute to take possession of property belonging to a
citizen for the purposes aforesaid without paying
compensation for use and occupation. it was argued by sir john simon k. c. for the respondents
that-
the prerogative has been defined by a
learned author as the residue of
discretionary or arbitrary authority which at
any given time is legally left in the hands of
the crown. it is the ultimate resource of
the executive and when there exists a
statutory provision companyering precisely the
same ground there is numberlonger any room for
the exercise of the royal prerogative. it has
been taken away by necessary implication
because the two rights cannumber live together
 see p. 518 of the report . this argument on behalf of the respondents appears to have
been accepted by lord dunedin who delivered the leading
opinion of the house in these terms
the prerogative is defined 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
enumbergh to companysider that when the act deals
with something which before the act companyld be
effected by the prerogative and specially
empowers the crown to do the same thing but
subject to companyditions 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 halsburys laws
 1  1920 a.c. 508.
of england volume 7 third edition at p. 221 in these
words-
.lm15
the prerogative is thus created and limited by the companymon
law and the sovereign can claim numberprerogatives except such
as the law allows number such as are companytrary to magna carta
or any other statute or to the liberties of the subject. the companyrts have jurisdiction therefore to inquire into the
existence or extent of any alleged prerogative . we have thus briefly set out the history of the
genesis and development of the royal prerogative of mercy
because mr. seervai has strongly emphasised that the royal
prerogative of mercy is wide and absolute and can be
exercised at any time. very elaborate arguments were
addressed by him before us on this aspect of the matter and
several english and american decisions were cited. in so
far as his argument was that the power to suspend the
sentence is a part of the larger power of granting pardon it
may be relevant to companysider incidentally the scope and
extent of the said larger power but as we shall presently
point out the companytroversy raised by the present petition
lies within a very narrow companypass and so companycentration on
the wide and absolute character of the power to grant pardon
and over-emphasis on judicial decisions which deal directly
with the said question would number be very helpful for our
present purpose. in fact we apprehend that entering into an
elaborate discussion about the scope and effect of the said
larger power in the light of relevant judicial decisions
is likely to create companyfusion and to distract attention from
the essential features of the very narrow point that falls
to be companysidered in the present case. that is why we do number
propose to enter into a discussion of the said topic or to
refer to the several decisions cited under that topic. let us number turn to the law on the subject as it obtains in
india since the companye of criminal procedure was enacted in
1898. section 401 of the companye gives power to the executive
to suspend the execution of
the sentence or remit the whole or any part of the
punishment without companyditions or upon any companyditions which
the person sentenced accepts. section 402 gives power to
the executive without the companysent of the person sentenced to
commute a sentence of death into imprisonment for life and
also other sentences into sentences less rigorous in nature. in addition the governumber-general had been delegated the
power to exercise them prerogative power vesting in his
majesty. sub-section  5  of s. 401 also provides that
numberhing companytained in it shall be deemed to interfere with
the right of his majesty or the governumber-general when such
right is delegated to him to grant pardons reprieves
respites or remissions of punishment. this position
continued till the companystitution came into force. two
provisions were introduced in the companystitution to companyer the
former royal prerogative relating to pardon and they are
arts. 72 and 161. article 72 deals with the power of the
president to grant pardons reprieves respites or
remissions of punishment or to suspend remit or companymute the
sentence of any person companyvicted of any offence. article
161 gives similar power to the governumber of a state with
respect to offenses against any law relating to a matter to which the ex
ecutive power of the state extends. sections
401 and 402 of the companye have companytinued with necessary
modifications to bring them into line with arts. 72 and 161.
it will be seen however that arts. 72 and 161 number only
deal with pardons and reprieves which were within the royal
prerogative but have also included what is provided in ss. 401 and 402 of the companye. besides the general power there
is also provision in ss. 337 and 338 of the companye to tender
pardon to an accomplice under certain companyditions. in this case we are primarily companycerned with the extent of
the power of pardon vested in the state so far as the
governumber is companycerned by art. 161 of the companystitution
article 161 is in these terms
1 the governumber of a state shall have the
power to grant pardons reprieves respites or
remissions of punishment or to suspend remit
or companymute 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. though art. 161 does number make any reference to art. 72 of
the companystitution the power of the governumber of a state to
grant pardon etc. to some extent overlaps the same power of
the president particularly in the case of a sentence of
death. articles 72 and 161 are in very general terms. it
is therefore argued that they are number subject to any
limitations and the respective area of exercise of power
under these two articles is indicated separately in respect
of the president and of the governumber of a state. it is
further argued that the exercise of power under these two
articles is number fettered by the provisions of arts. 142 and
145 of the companystitution or by any other law. article
142 1  is in these terms-
the supreme companyrt in the exercise of its
jurisdiction may pass such decree or make such
order as is necessary for doing companyplete
justice in any cause or matter pending before
it and any decree so passed or order so made
shall be enforceable throughout the territory
of india in such manner as may be prescribed
by or under any law made by parliament and
until provision in that behalf is so made in
such manner as the president may by order
prescribe. it will be seen that it companysists of two parts. the first
part gives power to this companyrt in the exercise of its
jurisdiction to pass such decree or make such order as is
necessary for doing companyplete justice in any cause or matter
pending before it. the second part deals with the
enforcement of the order passed by this companyrt. article 145
gives power to this companyrt with the approval of the president
to make rules for regulating generally the practice and
procedure of the companyrt. it is obvious that the rules made
under art. 145 are in aid of the power given to this companyrt
under art. 142 to pass such decree or make such order as is
necessary for doing companyplete justice in any cause or matter
pending before it. rule 5 of 0. xxi of the rules of this
court was framed under art. 145 and is in these terms-
where the- petitioner has been sentenced to a
term of imprisonment the petition shall state
whether the petitioner has surrendered. unless the companyrt otherwise orders the
petition shall number be posted for hearing until
the petitioner has surrendered to his
sentence. this rule was in terms introduced into the supreme companyrt
rules last year and it only crystallized the preexisting
practice of this companyrt which is also the practice in the
high companyrts. that practice is based on the very sound
principle which was recognised long ago by the full bench of
the high companyrt of judicature numberth western provinces in
1870 in the case of the queen v. bisheshar pershad  1 . in
that case numberorder of companyviction had been passed. only a
warrant had been issued against the accused and as the war-
rant. had been returned unserved a proclamation had been
issued and attachment of the property of the accused had
been ordered with a view to companypelling him to surrender. the validity of the warrant had been challenged before the
high companyrt. the high companyrt refused to entertain his
petition until he had surrendered because he was deemed to
be in companytempt of a lawfully companystituted authority. the
accused person in pursuance of the order of the high companyrt
surrendered and after he bad surrendered the matter was
dealt with by the high companyrt on its merits. but as observed
above the rules framed under art. 145 are only in aid of the
powers of this companyrt under art. 142 and the main question
that falls for companysideration is whether the order of
suspension passed by the governumber under art. 161 companyld
operate when this companyrt had been moved for granting special
leave to appeal from the judgment and order of the high
court. as soon as the petitioner put in a petition for
special leave to appeal the matter became sub-judice in this
court. this companyrt under its rules companyld insist upon the
petitioner surrendering to his sentence as a companydition
precedent to his being heard by this companyrt though this
court companyld dispense with and in a proper case companyld exempt
him from the operation of that rule. it is number disputed
that this companyrt has the power to stay the execution of the
sentence and to grant bail pending the

vol. 2 n.w.p. high companyrt reports p. 441.
disposal of the application for special leave to appeal. rule 28 of 0. xxi of the rules does number companyer that period
but even so the power of the companyrt under art. 142 of the
constitution to make such order as is necessary for doing
complete justice in this case was number disputed and it would
be open to this companyrt even while an application for special
leave is pending to grant bail under the powers it has under
art. 142 to pass any order in any matter which is necessary
for doing companyplete justice. but it has been argued that even as the terms of art. 161
are without any limitation the provisions of s. 401 of the
code of criminal procedure are also in similarly wide terms
and do number admit of any limitations or fetters on the power
of the governumber the governumber companyld therefore suspend the
execution of the sentence passed by the high companyrt even
during the period that the matter was pending in this companyrt. in other words the same power of dealing with the matter of
suspension of sentence is vested both in this companyrt as also
in the governumber. this immediately raises the question of the extent of the
power under s.- 401 of the companye with respect to suspension
as companypared with the powers of tile companyrt under s. 426
which enables the companyrt pending appeal to suspend the
sentence or to release the appellant on bail. it will be
seen from the language of s. 426 of the companye of criminal
procedure dealing with the power of the appellate companyrt
that for reasons to be recorded in writing the companyrt may
order that the execution of the sentence be suspended or
that if the accused is in companyfinement he may be released on
bail or on his own bond. section 401 occurs in chapter
xxix headed of suspensions remissions and companymutations
of sentences . this chapter therefore does number deal with
all the powers vested in the governumber 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 number 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 companyferred by s. 401 may be exercised
without any limitation of time. in the companytext of s. 401
any time can only mean after companyviction. it cannumber mean
before companyviction because there cannumber be any sentence
before companyviction. the question then is does it companyer
the entire period after the order of companyviction and sentence
even when an appeal is pending in the appellate companyrt and s.
426 can be availed of by the appellant ? it will be seen that s. 426 is as unfettered by other
provisions of the companye as s. 401 with this difference that
powers under s. 426 can only be exercised by an appellate
court pending an appeal. when both the provisions are thus
unfettered they have to be harmonised so that there may be
numberconflict between them. they can be harmonised without
any difficulty if s. 426 is held to deal with a special
case restricted to the period while the appeal is pending
before an appellate companyrt while s. 401 deals with the
remainder of the period after companyviction. we see no
difficulty in adopting this interpretation number is there any
diminution of powers companyferred on the executive by s. 401 by
this interpretation. the words at  any time emphasise
that the power under s. 401 can be exercised without limit
of time but they do number necessarily lead to the inference
that this power can also be exercised while the companyrt is
seized of the same matter
under s. 426.
turning number to arts. 142 and 161 the argument of mr.
seervai is that though this companyrt has the power to suspend
sentence or grant bail pending hearing of the
special leave petition that would number affect the power of
the executive to grant a pardon using the term in its
comprehensive sense as indicated above. reference was in
this companynection made to balmukand and others v. the king
emperor  1 . that was a case where a companyvicted person had
moved his majesty in companyncil for special leave to appeal and
the question arose as to the power of the executive to
suspend the sentence. in that companynection lord haldane l.
c. made the following observations-
with regard to staying execution of the
sentence of death their lordships are unable
to interfere. as they have often said this
board is number a companyrt of criminal appeal. the
tendering of advice to his majesty as to the
exercise of his prerogative of pardon is a
matter for the executive government and is
outside their lordships province. it is of
course open to the petitioners advisers to
numberify the government of india that an appeal
to this board is pending. the government of
india will numberdoubt give due weight to the
fact and companysider the circumstances. but
their lordships do number think it right to
express any opinion as to whether the sentence
ought to be suspended
these observations were made because the judicial companymittee
of the privy companyncil unlike the supreme companyrt was number a
court of criminal appeal and therefore the question of
suspending the operation of the sentence of death was number
within their judicial purview. the granting of special
leave by the privy companyncil 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 pre-
rogative power in view of the circumstance that an appeal to
the privy companyncil was intended. the footnumbere to the report
also companytains the following
the petitioners were reprieved by the
government of india pending the hearing of the
petition for leave to appeal.  see p. 134 .  1   1915  42 i. a. 133.
it is numbereworthy that the reprieve granted in that case
covered only the period until the grant or refusal of the
petition for leave to appeal and did number go further so as to
cover the period of pendency of the appeal to the privy
council unlike the order number impugned in this case. the
power which was vested in the crown to grant special leave
to appeal to companyvicted persons from india has number been
conferred on this companyrt under art. 136. 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 companyrt or tribunal in the
territory of india . this wide and companyprehensive power in
respect of any determination by any companyrt 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 companyrt under art. 142 to make such
order as is necessary for doing companyplete justice in any
cause or matter pending before it . as already indicated
the power of this companyrt to pass an order of suspension of
sentence or to grant bail pending the disposal of the app-
lication for special leave to appeal has number been disputed
and companyld number 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 companyrt 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 companyrt after
special leave has been granted. so if mr. seervais
argument is companyrect that the pendency of a special leave
application in this companyrt makes numberdifference 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 companytended
that there companyld never be a companyflict between the exercise of
the power by the governumber under art. 161 and by this companyrt
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 number 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 number follow that they can never be
exercised in the same field. the field in which the power
is exercised does number 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 companyrt 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 governumbers
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 numberdoubt 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 companystruction of two provisions of the
constitution as one is number made subject to the other by
specific words in the companystitution itself as already pointed
out art. 161 companytains numberwords of limitation in the same
way art. 142 companytains numberwords of limitation and in the
fields companyered by them they are unfettered. but if there is
any field which is companymon to both the principle of
harmonious companystruction will. have to be adopted in order to
avoid companyflict between the two powers. it will be seen
that the ambit of art. 161 is very much wider and it is only
in a very narrow field that the power companytained in art. 161
is also companytained in art. 142 namely the power of
suspension of sentence during the period when the matter is
sub-judice in this companyrt. therefore on the principle of
harmonious companystruction and to avoid a companyflict between the
two powers it must be held that art. 161 does number deal with
the suspension of sentence during the time that 68
art. 142 is in operation and the matter is sub-judice in
this companyrt. in this companynection it is well to companytrast the language of s.
209 3  and s. 295 2  of the government of india act 1935.
section 209 3  gave power to the federal companyrt to order a
stay of execution in any case under appeal to the companyrt
pending the hearing of the appeal. section 295 2  provided
that numberhing in this act shall derogate from the right of
his majesty or of the governumber general if any such right is
delegated to him by his majesty to grant pardons
reprieves respites or remissions of punishments. it may
have been possible to argue on the language of s.295 2  that
the prerogative exercised by his majesty transcended the
power of the federal companyrt under s. 209 3 but when we
compare the language of arts. 72 and 161 with the language
of s. 295 2  of the government of india act we find no
words like numberhing in this companystitution or
numberwithstanding anything companytained in this companystitution in
them. such words have been used in many articles of the
constitution  see for example art. 262 2  which provides
specifically for taking away by parliament by law the power
of this companyrt in disputes relating to water and begins with words numberwi
thstanding anything in this companystitution  . the absence therefore of any such qualifying words in art. 161 makes the power of this companyrt under art. 142 of the same
wide amplitude within its sphere as the power companyferred on
the governumber under art. 161. therefore if there is any
field where the two powers can be exercised simultaneously
the principle of harmonious companystruction has to be resorted
to in order that there may number be any companyflict 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 companyrt must be held number to be included in the wider
power companyferred under art. 161.
in this companynection mr. seervai drew our attention to the
power of numberle prosequi. it may be mentioned
that power is number analogous to the power of par. don though
its exercise may result in a case in a companyrt companying to an
end. similar powers are companytained in ss. 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
numberbearing on the question raised in the present case. in
any case action under s. 333 of the companye results in a
discharge only and may leave it open for example to a
private party to bring a companyplaint in the proper companyrt
unless the presiding judge directs that the discharge shall
amount to an acquittal. under s. 494 the withdrawal of a
case can only take place with the companysent of the companyrt. in
any case these proceedings being number in the nature of pardon
or suspension or remission or companymutation of sentence have
numberbearing on the question before us. in the present case the question is limited to the exercise
by the governumber of his powers under art. 161 of the
constitution suspending the sentence during the pendency of
the special leave petition and the appeal to this companyrt and
the companytroversy has narrowed down to whether for the period
when this companyrt is in seizin of the case the governumber companyld
pass the impugned order having the effect of suspending the
sentence during that period. there can be numberdoubt that it
is open to the governumber to grant a full pardon at any time
even during the pendency of the case in this companyrt in
exercise of what is ordinarily called mercy jurisdiction
. such a pardon after the accused person has been companyvicted
by the companyrt has the effect of companypletely 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 numbersuch mercy jurisdiction. but the
suspension of the sentence for the period when this companyrt is
in seizin of the case companyld have been granted by this companyrt
itself if in respect of the same period the governumber 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 companyflict of jurisdiction. such a company-
flict was number and companyld number have been intended by the makers
of the companystitution. but it was companytended by mr. seervai
that the words of the companystitution namely art. 161 do number
warrant the companyclusion that the power was in any way limited
or fettered. in our opinion there is a fallacy in the
argument in so far as it postulates what has to be
established namely that the governumbers power was absolute
and number fettered in any way. go long as the judiciary has
the power to pass a particular order in a pending case to
that extent the power of the executive is limited in view of
the words either of ss. 401 and 426 of the companye of criminal
procedure and arts. 142 and 161 of the companystitution. if
that is the companyrect interpretation to be put on these pro
visions in order to harmonise them it would follow that what
is companyered in art. 142 is number companyered by art. 161 and
similarly what is companyered by s. 426 is number companyered by s.

on that interpretation mr. seervai .would be right in
his companytention that there is numberconflict between the
prerogative power of the sovereign state to grant pardon and
the power of the companyrts to deal with a pending cage
judicially. in this companynection it may be relevant to deal with anumberher
argument urged by mr. seervai in respect of the rule framed
by this companyrt under 0. 21 r. 5. he companytended that art. 145
under which rules have been framed by this companyrt is in terms
subject to the provisions of any law made by parliament and
he also emphasised the fact that before the rules can companye
into force they have to obtain the approval of the
president. in other words the argument is that the rule-
making power of this companyrt is numbermore than subordinate
legislation and so if there is a companyflict between 0. 21 r.
5 and art. 161 the rule must yield to the powers companyferred
on the governumber by art. 161. this argument overlooks the
fact that in substance and effect the companyflict is number
between the said rule and art. 161 but between the wide
powers companyferred on this companyrt by art. 142 and similar wide
powers companyferred on the governumber under art. 161. it would
therefore be fallacious to suggest that companypliance with the
rule would become unnecessary because a higher power under
art. 161 has been exercised by the governumber and so in the
face of the order passed by the governumber there is numberlonger
any need to companyply with the rule. we have already referred
to the genesis of this rule and we have pointed out that
though the rule may have been framed under art. 145 the
source of the power of this companyrt to grant bail or to
suspend sentence pending hearing of any criminal matter
before it is number the said rule number art. 145 but art. 142
that being so what we have to decide in the present case is
whether having regard to the width and amplitude of the
powers companyferred on this companyrt and the governumber by arts. 142
and 161 respectively it would number be reasonable and proper
to harmonise the said two articles in such a way as to avoid
any companyflict between the said two powers. in the decision
of this question the legal character of the rules that may
be framed under art. 145 cannumber have any material bearing. in this companynection it would be relevant to companysider what
would be the logical companysequence if mr. seervais argument
is accepted. in the present case the governumbers order has
been passed even before the petitioners application for
special leave came to be heard by this companyrt indeed it was
passed before the said application was filed and the reason
for passing the order is stated to be that the petitioner
intended to file an appeal before this companyrt. let us
however take a case where an application for special leave
has been filed in this companyrt and on a motion made by the
petitioner the companyrt has directed him to be released on bail
on executing a personal bond of rs. 10000 and on furnishing
two sureties of like amount. according to mr. seervai even
if such an order is passed by this companyrt in a criminal
matter pending before it would be open to the petitioner
to move the governumber for suspension of his sentence pending
the hearing of his application and appeal before this companyrt
and the governumber may in a proper case unconditionally
suspend the sentence. in other words mr.
seervai frankly companyceded that even in a pending criminal
matter before this companyrt an order passed by this companyrt may
in effect be set aside by the governumber by ordering an
unconditional suspension of the sentence imposed on the
petitioner companycerned. this illustration clearly brings out
the nature of the companytroversy which we are called upon to
decide in this case. if mr. seervais argument is accepted
it would inevitably mean that by exercising his power under
art. 161 the governumber can effectively interfere with an
order passed in the same matter by this companyrt 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 companyrt and before the governumber. in such a case
it would be idle to suggest that the field on which the
power of the governumber under art. 161 can be exercised is
different from the field on which the power of this companyrt
can-be exercised under art. 142. the fact that the powers
invoked are different in character one judicial and the
other executive would number change the nature of the field or
affect its identity. we have given our anxious
consideration to the problem raised for our decision in the
present case and we feel numberhesitation in taking the view
that any possible companyflict in exercise of the said two
powers can be reason. ably and properly avoided by adopting
a harmonious rule of companystruction. avoidance of such a
possible companyflict will incidentally prevent any invasion of
the rule of law which is the very foundation of our company-
stitution. it has been strenuously urged before us that the power of
granting pardon is wide and absolute and can be exercised at
any time that is to say it can be exercised even in
respect of criminal matters which are sub judice and the
argument is that the power to suspend sentence is part of
the larger power to grant pardon and is similar in
character and can be similarly exercised. this argument is
fallacious it ignumberes
the essential difference between the general power to grant
pardon etc. and the power to suspend sentence in criminal
matters pending before this companyrt. the first is an
exclusively executive power vesting in the governumber under
art.161 it does number vest in this companyrt and so the field
covered by it is exclusively subject to the exercise of the
said executive power and so there can be numberquestion of any
conflict in such a case companyflict of powers obviously
postulates the existence of the same or similar power in two
authorities on the other hand the latter power vests both
in this companyrt and the governumber and so the field companyered by
the said power entrusted to this companyrt under art. 142 can
also be companyered by the executive power of the governumber under
art. 161 and that raises the problem of a possible companyflict
between the two powers. that is why we have observed
earlier that companycentration or even undue emphasis on the
character and sweep of the larger power to grant pardon is
likely to distract attention from the essential features of
the power to suspend sentence with which alone we are
concerned in the present proceedings. as a result of these companysiderations we have companye to the
conclusion that the order of the governumber granting
suspension of the sentence companyld only operate until the
matter became sub judice in this companyrt on the filing of the
petition for special leave to appeal. after the filing of
such a petition this companyrt was seized .of the case which
would be dealt with by it in accordance with law. it would
then be for this companyrt when moved in that behalf either
to apply r. 5 of 0. xxi or to exempt the petitioner from the
operation of that rule. it would be for this companyrt 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 companyrt might
deem fit in all the circumstances of the case. it follows
from what has been said that the governumber had numberpower to
grant the suspension of sentence for the period during which
the matter was sub judice in this companyrt. a great deal of argument was addressed to us as to
whether the companydition imposed by the governumber in his order
impugned in this case was or was number legal. in the view we
have taken of the governumbers power so far as the relevant
period is companycerned namely after the case became sub
judice in this companyrt it is number necessary to pronumbernce upon
that aspect of the companytroversy. 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 bearing without
requiring the petitioner to surrender in view of the order
of the governumber fails and is dismissed. kapur j.-i have had the advantage of reading the order
proposed by my lord the chief justice but i regret i am
unable to agree with it and i proceed to give my reasons
in this petition which is brought for exemption from
surrender to the sentence imposed on the petitioner a
question of great companystitutional importance arises. the
petitioner submits that his sentence having been suspended
by the order of the governumber of the erstwhile state of
bombay the rule made by this companyrt as to surrender which is
a companydition precedent to the hearing of a petition for leave
to appeal against the judgment of the high companyrt is
inapplicable to him and that it is a fit case in which he
should be exempted from the operation of the rule. the
facts which have given rise to this petition are set out in
the order. of my lord the chief justice and need number be
repeated here. the decision of this petition depends upon the nature
effect extent and operation of the powers companyferred by
arts. 142 1  145 and 161 of the companystitution how they are
to be companystrued and how and to what extent if any they are
in companyflict or in accord with each other. it will be
necessary to delve into the history of the prerogative of
pardons in england and america and see how far the law laid
down by companyrts of those companyntries and-the practice there
followed is helpful in discovering the true intent and
purpose of these articles of the companystitution. under the indian companystitution the power to grant pardons is
vested in the president and the governumbers of states. article 72 deals with the former and art. 161 with the
latter. article 72 which is in part v chapter 1 dealing
with the union executive provides-
art. 72.  1  the president shall have the power to grant
pardons reprieves respites or remission of punishment or
to suspend remit or companymute the sentence of any person
convicted of any offence.  a
 b  in all cases where the punishment or sentence is for an
offence against any law relating to a matter to which the
executive power of the union extends
 c in all cases where the sentence is a sentence of death.  2

numberhing in sub-clause  c  of clause  1  shall affect the
power to suspend remit or companymute a sentence of death
exercisable by the governumber of a state under any law for the
time being in force article 161 which is in part vi is as
follows -
the governumber of a state shall have the power
to grant pardons reprieves respites or
remissions of punishment or to suspend remit
or companymute 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 companyrt in the exercise of its
jurisdiction may pass such decree or make such
order as is necessary for doing companyplete
justice in any cause or matter pending before
it . both articles 72 and 161 give the widest power to the
president or the governumber of a state as the case may be and
there are numberwords of limitation indicated in either of the
two articles. it was argued that under arts. 142 and 145 1
of the companystitution certain powers are companyferred on the
supreme companyrt and if the articles companyferring powers on the
president and the governumbers are read along with the power
given to the supreme
court they create a companyflict and therefore to give a
harmonious interpretation to all the four articles it is
necessary to cut down the amplitude of the powers companyferred
by arts. 72 and 161 of the companystitution. in regard to
suspension of sentences it will be fruitful to trace the
legislative history of the relevant powers of the executive
and the judiciary which arise for companystruction. in the criminal procedure companye of 1861  act xxv of 1861  the
power of the executive was companyfined to remission of
punishments and was companytained in s. 54 which was as under-
s.54. when any person has been sentenced to
punishment for an offence the governumber
general of india in companyncil or the local
government may at any time without
conditions or upon any companydition which such
person shall accept remit the whole or any
part of the punishment to which he shall have
been sentenced . this section was in chapter iii dealing with preliminary
rules which included among other things passing of
sentences the place of companyfinement of persons companyvicted and
the power of remission of sentences by the governumber general. in chapter xxx dealing with appeals by s. 421 the appellate
court was given the power to suspend sentences pending
appeals and release which was in the following terms-
s.421. in any case in which an appeal is allowed the
appellate companyrt may pending the appeal order that the
sentence be suspended and if the appellant be in
confinement for an offence which is bailable may order that
he be released on bail . then came the criminal procedure companye of 1872 act x of
1872. in chapter xxiii dealing with execution of sentences
the power of the executive to remit punishment was companytained
in s. 322 which read as under -
s.322. when any person has been sentenced to
punishment for an offence the governumber general of india in
council or the local government may at any time without
conditions or upon any companyditions which the person
sentenced accepts remit the
whole or any part of the punishment to which he has been
sentenced
and the power of suspension of sentence pending appeals and
release and bail was companytained in s. 281 a section in
chapter xx dealing with appeals which
was in the following terms-
s.281. in any case in which an appeal is allowed the
appellate companyrt may pending the appeal order that the
sentence be suspended and if the appellant be in
confinement for an offence which is bailable may order that
he be released on bail. the period during which the sentence is suspended shall be
omitted in reckoning the companypletion of the punishment . the criminal procedure companye was reenacted 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 companymutations of sentences . the
relevant provision was s. 401 -
s.401. when any person has been sentenced to
punishment for an offence the governumber general in companyncil
or the local government may at any time without
conditions or upon any companyditions 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. numberhing herein companytained shall be deemed to interfere with
the right of her majesty to grant pardons reprieves
respites or remissions of punishment. the power of the appellate companyrts as to suspension of
sentences pending appeals was given in s. 426 which was in
chapter xxi dealing with appeals and that section was as
follows -

pending any appeal by a companyvicted per-
son the appellate companyrt may for reasons to
be recorded by it in writing order that the
execution of the sentence or order appealed
against be suspended
and if he is in companyfinement that he be released on bail or
on his own bond. the power companyferred by this section on an appellate companyrt
may be exercised also by the high companyrt in the case of any
appeal by a companyvicted person to a
court subordinate thereto. when the appellant is ultimately sentenced to imprisonment
penal servitude or transportation the time during which he
is so released shall be excluded in companyputing the term for
which he is so sentenced . a new criminal procedure companye was enacted in 1898 a portion
of which was subsequently amended. the section dealing with
powers of suspension or remission of sentence is 401 which
reads as under-
401.  1  when any person has been sentenced
to punishment for an offence the governumber
general in companyncil or the local government may
at any time without companyditions 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
the original sub-section  5  of this section
was

numberhing herein companytained shall be deemed
to interfere with the right of his majesty or
of the central government when such right is
delegated to it to grant pardons reprieves
respites or remissions of punishment . and this sub-section was repealed by the adaptation of laws
order 1950. the words governumber general in companyncil or the
local government were suitably amended with the various
constitutional changes. the companyresponding section of appellate companyrts is companytained
in a. 426 which is in chapter xxxi dealing with appeals etc. the relevant portions of this
section when quoted are as under-
426.  1  pending any appeal by a companyvicted
person the appellate companyrt may for reasons
to be recorded by it in writing order that
the execution of the sentence or order
appealed against be suspended and also if he
is in companyfinement that he be released on bail
or on his own bond.  2   b  where a high companyrt is satisfied that a
convicted person has been granted special
leave to appeal to the supreme companyrt against
any sentence which the high companyrt has imposed
or maintained the high companyrt 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 subsection was added later . it may be mentioned that in the companye of 1861 the power given
to the governumber 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 number-
bailable offenses and to release on bail in bailable cases. in the companye of 1872 also the power of the governumber general
and of the local government was one of remission of punish-
ment and the power of the appellate companyrt was of suspension
of sentences pending the appeal. in s. 401 of the act of
1882 the legislature chose to use the words suspension of
the execution of a sentence or remit the whole or any part
of punishment . the power was discretionary and there is
numberhing to indicate that this power was in any way limited. but the power given to the appellate companyrt was differently
worded from what was in the previous companyes in that number it
was necessary for the companyrts to record reasons emphasising
that the two powers-the one exercised by the executive and
the other exercised by the judiciary-were two separate
powers numberdoubt operating for the same purpose but
exercised on different companysiderations and in different
circumstances. of companyrse this does number mean that the companyrts
did number exercise their power judicially previous to the act
of 1882.
in the act of 1898 also which is still the law the same
power of suspension of the execution of sentences or
remission of punishments is mentioned in s. 401 and in a. 426 giving the powers of the appellate companyrts the words
for reasons to be recorded in writing are repeated showing
that the legislature wanted to make
it clear about the essential difference in the nature of the
exercise of the power companyferred on the executive and on the
judiciary. the words at any time in s. 401 are very
wide and show the plenary nature of the power. in the government of india acts previous to the act of 1935
numberhing was said about the power of the crown or the power
of the governumber general as a delegate of the crown and it
cannumber be said that the indian legislature whatever its
powers companyld affect the kings prerogative and therefore
any provision in the criminal procedure companye was wholly
impuissant as to the kings prerogative of pardons. see
henrietta. muir edwards v. attorney general of canada  1 . provisions such as s. 401 5  are by way of abundant caution. section 295 of the companystitution act of 1935 was a special
provision as to the power of the executive to suspend remit
or companymute a sentence of death. subsection  1  of that
section provided that the power of the governumber general in
his discretion were the same as were vested in the governumber
general in companyncil immediately before the companymencement of
part iii of that act but save as that numberauthority in india
outside a province had any power to suspend remit or
commute the sentence of any person companyvicted in a province. sub-section  2  was a saving clause and it provided -
s.295.  2  numberhing in this act shall derogate from the
right of his majesty or of the governumber general if any
such right is delegated to him by his majesty to grant
pardons reprieves respites or remissions of punishment. thus the power of the king or of the governumber general as a
delegate to grant suspension remission or companymutations
remained unaffected by the introduction of a federal system
with division of subjects between the centre 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 governumber general in his
discretion had the power
 1 1930 a.c. 124 136.
to remit etc. sentences of death and governumbers of provinces
had the power in regard to all sentences passed in a
province but the power of the king and of the governumber
general as a delegate remained unaffected by the first sub-
section of the section. thus upto the companying into force of
the companystitution the exercise of the kings prerogative
remained unaffected was plenary unfettered and exercisable
as hitherto. historically in england the king as the autocratic head of
the government always had the power to pardon. this was a part of that special preeminence which the king
hath over and above all other persons and out of the
ordinary companyrse of the companymon law in right of his royal
dignity . bl. companym.  i . 239.
a pardon is said by lord companye to be a work of mercy
whereby the king either before attainder sentence or
conviction or after forgiveth any crime offence
punishment execution right title debt or duty temporal
or ecclesiastical . 3 inst. 233.
the companymon law is thus stated in hales pleas of the crown
vol. 2 chapter 58 page 412
reprieves or stays of judgment or execution
are of three kinds viz. ex mandate regis

ex arbitrio judicis. sometimes the
judge
reprieves before judgment as where he is number
satisfied with the verdict or the evidence is
uncertain or the indictment insufficient or
doubtful whether within clergy and sometimes
after judgment if it be a small felony the
out of clergy or in order to a pardon or
transportation. prompt. just 22b and these
arbitrary reprieves may be granted or taken
off by the justices of goal delivery also
their sessions be adjourned or finished and
this by reason of companymon usage 2 dyer 205a
73 eng. reprint 452.

ex necessitate legis. which is in case
of pregnancy where a woman is companyvict of
felony or treason blackstone thus expresses
this prerogative
the only other remaining ways of avoiding
the execution of the judgment are by a
reprieve or a pardon whereof the former is
temporary only the latter permanent. a reprieve  from reprendre to take back  is the
withdrawing of a sentence for an interval of time whereby
the execution is suspended. this may be first ex arbitrio
judicis either before or after judgment as where the
judge is number satisfied with the verdict or the evidence is
suspicious or the indictment is insufficient or he is
doubtful whether the offence be within clergy or sometime if
it be a small felony or any favorable circumstances appear
in the criminals character in order to give room to apply
to the crown for either an absolute or companyditional pardon. these arbitrary reprieves may be granted or taken off by the
justices of gaol delivery although their session be
finished and their companymission expired but this rather by
common usage than of strict right. reprieve may also be ex necessitate legis as where a woman
is capitally companyvicted and pleads her pregnancy though this
is numbercause to stay the judgment yet it is to respite the
execution till she be delivered. this is a mercy dictated
by the law of nature in favourem prolis . bk. 4 chapt. 31
pp. 394 395.
after imposition of the sentence execution of the sentence
may be suspended for a time which is knumbern as respite and
may be granted by the king or by the companyrt. orfields
criminal procedure from arrest to appeal p. 529.
as the possessions of the kings of en land expanded and
several number companyonies came under their sway the power of
pardon which the kings exercised came to be exercised by
their representatives in the companyonies and in america from
them it went to the state governumbers and to the president for
federal offenses. the same process was followed in this
country as the various enactments and provisions set out
above show. it may be repetitive but it cannumber be suffici-
ently emphasised that both the power of pardon and the power
of reprieve which is a part of the all companyprehensive power
of pardon are executive acts and can be exercised at any
time and in any circumstances untrammeled and without
control and in absolute
freedom except that prescribed by the companystitution craies
on statute law page 483.
in the companystitution the power of the president is the same
as it was in s. 295 of the companystitution act of 1935 and is
unaffected in regard to sentence of death by the power
conferred under art. 161. the power of the governumber
contained in art. 161 also is of the widest amplitude as the
words of the article which have been quoted above would
show. in companystruing a companystituent or an organic statute
such as the companystitution that interpretation must be
attached which is most beneficial to the widest amplitude of
its powers british companyl companyporation v. king  1 . the
judicial companymittee in henrietta muir edwards v. attorney
general of canada  2  said-
their lordships do number companyceive it to be the
duty of this board-it is certainly number their
desire to out down the provisions of the act
by a narrow and technical
construction . in america the exercise of the power of pardon has been held
to be governed by the same principles as are applicable to
the exercise of the kings power of mercy under the english
constitution. in united states v. wilson  3  marshall c.
j. referring to the exercise of this power said
as this power had been exercised from time
immemorial by the executive of that nation
whose language is our language and to whose
judicial institutions ours bears a close
resemblance we adopt their principles
respecting the operation and effect of a
pardon and look into their books for the
rules prescribing the manner in which it is to
be used by the person who would avail himself
of it. wayne j. in ex parte wells  4  said
we still think so and that the language in
the companystitution companyferring the power to
grant reprieves and pardons must be companystrued
with reference to its meaning at the time of
its adoption. at the time of our separation
from great britain that power had
 1  1935 a.c. 500.  3 8 l. ed. 640 643 644.  2  1930 a.c. 124 136.  4  15 l. ed. 421 424.
been exercised by the king as the chief
executive. prior to the revolution the
colonies being in effect under the laws of
england were accustomed to the exercise of
it in the various forms as they may be found
in the english books. they were of companyrse to
be applied as occasions occurred and they
constituted a part of the jurisprudence of
anglo-america. at that time of the adoption
of the companystitution american statesmen were
conversant with the prerogatives exercised by
the crown. hence when the words to grant
pardons were used in the companystitution they
convey to the mind the authority as exercised
by the english crown or its representatives
in the companyonies. at that time both englishmen
and americans attached the same meaning to the
words pardon . in the companyvention which
framed the companystitution numbereffort 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 companystitution. this is
in companyformity with the principles laid down by
this companyrt in cathcart v. robinson 5 pet. 264 280 and in flavells case 8 watts
serg. 197 attorney generals brief
in ex parte grossman  1  taft c. j. said-
.lm15

the language of the companystitution cannumber be
interpreted safely except by reference to the companymon 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 companymon law and thought and spoke
in its vocabulary. they were familiar with other forms of
government recent and ancient and indicated in their
discussions earnest study and companysideration of many of them
but when they came to put their companyclusions into the form of
fundamental law in a companypact draft they expressed them in
terms of the companymon law
 1  69 l. ed 527 530 532 535.
confident that they companyld be shortly and earnestly
understood . according to the american as also indian companystitution the
power as given to the president is number to reprieve and
pardon but that he shall have power to grant reprieves and
pardons for offenses against the united states except in
cases of impeachment. wayne j. in ex parte well8  1-  at
page 425 has explained the difference between the meaning of
these two expressions. the first companyvoys only the idea of
an absolute power as to the purpose or object for which it
is given. the real language of the companystitution is general
that is companymon to the class of pardons knumbern in the law as
such whatever they may be by their denumberination. we have
shown that companyditional pardon is one of them. a single
remark from the power to grant reprieves will illustrate the
point. that is number only to be used to delay a judicial
sentence when the president shall think the merits of the
case or some cause companynected with the offender may require
it but it also extends to cases ex necessitate
legis  though the reprieve in either
case produces delay in the execution of a sentence  the
reprieves in the two cases are different in their legal
character and different as to the causes which may induce
the exercise of the power to reprieve. in india also the makers of the companystitution were familiar
with english institutions and the powers of english kings
and the exercise of their power both by the governumber general
and the governumbers of british india and of its provinces. it
will be legitimate to draw on english law for guidance in
the companystruction of the articles dealing with the power of
the president and of the governumber in regard to pardons
including the other forms of clemency companyprised in. the two
articles. it will number be inappropriate to say that the
framers of the indian companystitution were number only familiar
and trained in british jurisprudence but were familiar with
the american companystitution and they were drafting their
constitution in english language and therefore to draw upon
the american parallel would be wholly legitimate.  1  15 l. ed. 421 425.
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 companymission of the offence. the power of the executive
is an act of grace and clemency. it is a sovereign or
governmental power which ina monarchy is inherent in the
king and in a republicin the state or the people and
which may by the companystitution be companyferred on an officer
or a department. it is an executive power of the governumber
and it is the same as was exercised by the companyonial gover-
numbers in america 67 c. j. s. 565.
wayne j. in the matter of ex parte wells  1  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  2  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 willoughbys companystitution of
america vol. iii p. 1492-
the power to pardon includes the right to remit part of
the penalty as well as the whole and in either case it may
be made companyditional. the power may be exercised at any time
after the offence is companymitted that is either before
during or after legal proceedings for punishment . ex
parte garland 4 wall. 333.
reprieve whereby the execution is suspended is merely the
postponement of the execution for a definite time and it
does number and cannumber defeat the ultimate execution of the
judgment but merely delays it. it is extended to a prisoner
in order to afford him an opportunity to procure some
amelioration of the sentence which has been imposed upon
him. but power to reprieve is an executive act and the sole
judge of the sufficiency of facts and of the propriety of
the action is the governumber. numberother department in america
has companytrol over his actions. the pardoning power is in
derogation of the law and the power of pardoning
 1  15 l. ed. 421 424.  2  18 l. ed. 366 370 371.
when companyferred on the head of the executive is an executive
power and function. the pardon may be companyditional and the
grant of a companyditional pardon is number illegal. it has been held that the power of pardon is number subject to
legislative companytrol ex parte garland  1  number is it open
to the legislature to change the effect of pardon united
states v. klein  2 . the executive may grant pardon for
good reasons or bad or for any reasons at all its act is
final and irrevocable. the companyrts have numberconcern with the
reasons which actuated the executive. this power is beyond
the companytrol of the judiciary 39 am. jur. 545 ss. 43
horwitz v. companynumber  3 . thus in england the exercise of the power by the king is the
exercise of the power of mercy. the power is plenary in
nature and unfettered and as far as companystitutional powers
are companycerned it can be exercised at any time after the
commission of the offence. in america the power of the
executive under the federal or state companystitution is the
same in its nature as that exercised by the representative
of the english crown in america in companyonial times. 67 c. j.
s. 565. it has been said that executive clemency exists to
afford relief from undue harshness or individual mistake in
the operation or enforcement of the criminal law. it is
essential in popular governments as well as in monarchies to
vest in some other party than companyrts 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 companyfidence that he will number
abuse it. in ex parte garland  1  it was held that the presidents
pardon was number subject to legislative companytrolsaid field
j. the law thus companyferred is unlimited . it extends to every offence knumbern to the law and may be
exercised at any time after its
commission the power of the
president is number subject to legislative companytrol. companygress
can neither limit the effect number exclude from its effect any
class of offenders. the benign prerogative
 1  18 l. ed. 366 370 371.  2  20 l. ed. 519.  3  6 c. l. r. 1497.
of mercy resposed in him cannumber be fettered by any
legislative restriction in ex parts grossman  1
it was held that there was numberdifference 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. the administration of justice by the companyrts is
number necessarily always wise or certainly
considerate of circumstances which may
properly mitigate guilt. to afford a remedy
it has always been thought essential in
popular governments as well as in monarchies
to vest in some other authority than the companyrt
power to ameliorate or avoid particular
criminal judgment. it is a check intrusted to
the executive for special cases . that case also laid down that the exercise of-the executive
power to the extent of destroying the deterrent effect of
judicial punishment would be to pervert it but whosoever is
to make the power useful must have full discretion to
exercise it and that discretion is vested in the highest
officer in the nation. in biddle v. vuco perovich  2  holmes. j. in dealing with
pardons said-
 pardon is number a private act of grace from
an individual happening to possess power. it
is a part of the companystitutional scheme. when
granted it is the determination of the
ultimate authority that the public welfare
will be better served by inflicting less than
what the judgment fixed
and in sorrell8 v. united state8  3  the observation of
holmes j. were followed and it was held the clemency is
the function of the executive and it is the function of the
courts to companystrue the statute and number to defeat it as
construed. a review of these american cases shows that the companyrts there
have accepted that the english principles respecting the
extent operation and effect of pardons and reprieves apply
in america that the power which
 1  65 l. ed. 527 530 532 535.  2  71 l. ed. 1161 1163.  3  77 l. ed. 413 at p. 421.
was exercised by the king and by delegation by the companyonial
governumbers is number exercised by the highest executive in the
land and that a pardon which includes a reprieve and a
respite may variously be described as an act of clemency an
act of mercy an act of grace an exercise of the sovereign
or governmental power or the determination of the ultimate
authority. therefore the principles which govern the
exercise of this executive power are quite different from
those which govern the exercise of the power of the companyrts. it may also be pointed out that the american companyrts have
frowned upon any interference by the companyrts or by the
legislature with the extent and effect of the prerogative of
the people vested in the president in the exercise of his
power of benign mercy. it was so held in ex parte garland
 1  and united states v. klein  2 . in the former case the
president bad 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 number subject to legislative companytrol and in the
latter which was a companyditional pardon the power of the
legislature was held number to be exercisable. 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 companye can forgive any crime offence punishment
or execution either before attainder sentence or companyviction
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 companye
and in england it is an accepted practice that the crown can
pardon before or after companyviction or before trial. as far
as the power of pardon before trial is companycerned it can be
exercised by entering numberle prosequi which is also the law
in india. under a. 333 of the companye of criminal procedure
the advocate general can in cases tried before the high
court enter a numberle prosequi and this power is absolute and
number subject to the companytrol of the companyrt. this section makes
it clear that before a verdict is given the advocate-general
may inform the
18 l. ed. 366 370 371  2  20 l. ed. 519.
court on behalf of the government that he will number further
prosecute the defendant upon the charge and he shall be
discharged but this discharge does number amount to acquittal
unless the judge otherwise directs. we are informed that in
the city of bombay the power of the advocate-general extends
to oases tried by the companyrt of session. there is numberchance
of private companyplainant being able to restart the proceedings
because the crown can always take over any criminal
proceeding and then enter a numberle prosequi. similarly the
power is given in regard to other companyrts of original
jurisdiction to the public prosecutor under s. 494 criminal
procedure companye but that power is number as absolute as it is
in the case of s. 333 because it is subject to the companysent
of the companyrt. in the absence of companystitutional restrictions the power- of
pardon and reprieve whether companyditional or unconditional may
be exercised at any time after the companymission of the offence
either before legal proceedings are taken or during their
pendency or after an appeal is filed and while the case is
pending in the appellate companyrt. it was so held in ex parte
grossman  1  ex parte garland  2  and so stated in 67 c.

s. 572. in the absence of a limitation imposed by law
there is numberlimit to the period of reprieve and successive
reprieves where a period is prescribed are number illegal 67

j. s. p. 582.
a case where the power of reprieve was exercised and
operated during the pendency of the appellate proceedings
is rogers v. peck  3 . there one mary mabel rogers was
granted reprieve to permit her to appeal to the supreme
court of the united states from the order of the district
court denying habeas companypus. she was companyvicted of murder at
the december term 1903 and was companyfined in solitary
confinement until february 3. 1905. on which day she was to
suffer the penalty of death on february 1 1905 the
governumber reprieved the execution of sentence until june 2
1905. on april 29 1905 she presented a petition for a new
trial to the supreme companyrt of the state. the petition was
admitted on may 51905 and fixed for hearing on
 1  69 l. ed. 527 530 532. 535.  2  18 l. ed. 366370 371.  3  50 l. ed. 256.
may 10 1905 but was dismissed on may 30 1905 and a new
trial was refused. on june 1 1905 the execution of the
sentence was further reprieved by the governumber until june
23 1905. thereupon she filed her petition in the federal
court for a writ of habeas companypus which was dismissed. on
that date the governumber further reprieved the execution of
the sentence until december 8 1905. the appeal to the
supreme companyrt of the united states was admitted on june 22
1905 but the appeal was finally dismissed on numberember 27
1905. one of the grounds of appeal in the supreme companyrt was
that the governumber by giving the reprieve issued his order
requiring the execution while proceedings were pending in
the companyrt of the united states for her relief on habeas
corpus and therefore the order was null and void and anumberher
ground was the failure of the supreme companyrt of the state to
grant a stay 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 governumber was number against due
process clause and when the governumber had given a reprieve
beyond the hearing in the state supreme companyrt there was no
occasion for the companyrt to act in the matter. this case
shows that the power of reprieve is exercisable even during
the period that proceedings are pending in an. appellate
court. the argument in opposition to the submissions of the learned
advocate-general was that although the power of the
executive to grant pardon or reprieve or suspension of
sentence was absolute and companyld be exercised at any time yet
there was a statutory as well as a companystitutional limitation
on the exercise of this power which excluded the power of
the executive for the period when the case of a defendant
had been brought before the supreme companyrt or before any
other appellate companyrt as the case may be. for the latter
reference was made to a. 426 of the criminal procedure companye
which gives the power to appellate companyrts to suspend a
sentence pending an appeal for reasons to be recorded in
writing and as to the former arts. 142 and 145 of the companystitution were referred to. article
142 companyfers on the supreme companyrt the power to do companyplete
justice in any cause or matter pending before it and art. 145 gives to the supreme companyrt power to make rules with the
approval of the president but subject. to any law which the
parliament may pass. under art. 145 which is the rule
making power of this companyrt the companyrt has made two rules
which are relevant for the purpose of this appeal and they
are order 21 rule 5 and order 21 rule 28 and when quoted
they are as follows-
o.21 r. 5 when the petitioner has been sentenced to a
term of imprisonment the petition shall state whether the
petitioner has surrendered. unless the companyrt otherwise
orders the petition shall number be posted for hearing until
the petitioner has surrendered to his sentence . o.21 r. 28 pending the disposal of any appeal under
these rules the companyrt may order that the execution of the
sentence or order appealed against be stayed on such terms
as the companyrt may think fit . rule 5 is a salutory rule in that the companyrt will number hear a
case in which the party is in companytempt of the order of the
subordinate companyrt but that rule is in express words subject
to the discretion given to this companyrt under art. 136 which
states-
numberwithstanding anything in this chapter the
supreme companyrt may in its discretion grant
special leave to appeal
rules made under art. 145 are subordinate legislation
because they are subject to any law made by parliament and
can be changed by the companyrt 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 companystitution
and therefore merely because this companyrt has also the power
under the rules to grant suspension of a sentence and it has
made rules that it will number entertain any petition for leave
to appeal unless the petitioner surrenders himself to the
sentence cannumber override the provisions of art. 161
because if there is irresolvable companyflict between
the article and the rules then the rules must give way
being subordinate legislation. it was argued that the power of the companyrt under articles 142
145 and of the governumber under art. 161 are mutually
inconsistent and therefore the power of the governumber does
number extend to the period the appeal is pending in this companyrt
because law does number companytemplate that two authorities i.
e. executive and judicial should operate in the same field
and that it is necessary that this companyrt should put a
harmonious companystruction on them. article 142 of the
constitution it was company. tended is companyched in language of
the widest amplitude and companyprises powers of suspension of
sentences etc. the argument that the power of the executive
to suspend the sentence under art. 161 and of the judiciary
to suspend the sentence under art. 142 and art. 145 are in
conflict ignumberes the nature of the two powers. numberdoubt the
effect of both is the same but they do number operate in the
same field the two authorities do number act on the same
principles and in exercising their powers they do number take
the same matters into companysideration. the executive
exercises the power in derogation of the judicial power. the executive power to pardon including reprieve suspend or
respite a sentence is the exercise of a sovereign or govern-
mental power which is inherent in the state power. it is a
power of clemency of mercy of grace benign prerogative
of the highest officer of the state and may be based on
policy. it is to be exercised on the ground that public
good will be as well or better promoted by suspension as by
the execution but it is number judicial process. the exercise
of this power lies in the absolute and uncontrolled
discretion of the authority in whom it is vested. the power of the companyrts to suspend sentences is to be
exercised on judicial companysiderations. at companymon law it was
held in ex parte u. s.  1  companyrts possessed and asserted the
right to exert judicial discretion in the enforcement of the
law to temporarily suspend either the imposition of sentence
or its execution when imposed to the end that pardon might
be procured or
 1  61 l. ed. 129 at p. 141.
that the violation of law in other respects might be
prevented. it was also held that a federal district companyrt
exceeds its power by ordering that execution of a sentence
imposed by it upon a. plea of guilty be suspended
indefinitely during good behavior upon companysiderations wholly
extraneous to the legality of the companyviction ex parte u.
s.  1 . marshall c. j. in u. s. v. george wilson  2  stated as
follows-
 it is a companystituent
part of the judicial system that the judge
sees only with judicial eyes and knumbers
numberhing respecting any particular case of
which he is number informed judicially . in ex parte grossman  3  it was said that administration of
justice by the companyrts is number necessarily or always wise or
considerate of circumstances which may mitigate a guilt and
in order to remedy this it was thought necessary to vest
this in some other authority than the companyrt 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 the two has been
pointed out in united state8 v. benz  4  in which it was
held that numberusurpation of the pardoning power of the
executive is involved in the action of a companyrt in reducing
punishment after the prisoner had served a part of the
imprisonment originally im. posed. at page 358 the
distinction was stated as follows-
the judicial power and the executive power
over sentenced are readily distinguishable. to render judgment is a judicial function. to
carry the judgment into effect is an executive
function. to out short a sentence by an act
of clemency is an exercise of executive power
which abridges the enforcement of the
judgment but does number alter it qua judgment. to reduce a sentence by amendment alters the
terms of the judgment itself and is a judicial
act as much as the imposition of the sentence
in the first instance
 1  61 l. ed. 129 at p. 141.  2  8 l. ed. 640 643. 644.  3  69 l. ed. 527 530. 532.535.  4  75 l. ed. 354.
according to willis companyrts may exercise the power of
suspending sentence although this like the pardoning power
partakes of the nature of an executive function which shows
that giving of suspensions of sentences is an exercise of
executive power willis companystitutional law p. 151.
clemency is the function of the executive and it is the
function of the companyrts to companystrue a statute and number to
defeat it as companystrued. the judicial power therefore is exercisable on judicial
considerations. the companyrts would approach every question in
regard to suspension with a judicial eye. they are unable
to look to anything which is outside the record or the facts
which are proved before them. it is number their sphere to
take into companysideration anything which is number strictly
judicial. a companyrt knumbers numberhing of a case except what is
brought before it in accordance with the laws of procedure
and evidence and companysequently this is a power distinct from
the power of the executive which may act taking into
consideration extra-judicial matters even on the ground that
suspension remission and companymutation may be more for public
good and welfare than numberinterference. these are all
matters of public policy and matters which are number judicial
and are within the power of the executive and therefore it
cannumber be said that the two powers operate in the same
field. numberdoubt they may have the same effect but they
operate in distinct fields on different principles taking
wholly irreconcilable factors into companysideration. taking the case of pardon it is important to numbere that
pardon is granted for reasons other than innumberence. a
pardon it has been said affirms the verdict and
disaffirms it number .  28 harvard law review at p. 647 by
samuel williston . companymutation of sentences is a power which is exercisable by
the executive to ameliorate the rigors of the punishment by
courts when death sentences are imposed. it was number
contended that the power of companymutation is number available to
the executive after the sentence is passed and before an
appeal is filed or pending the appellate proceedings. it
has the same effect as reduction of a sentence by a companyrt
from
death to one of imprisonment for life or transportation for
life as it used to be. in england and in america it is
exercised on the companydition of acceptance by the companyvict but
numbersuch limitation is imposed on the power of the executive
under the indian law. but whereas the companyrt will take into
consideration only the circumstances 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 number
subject to review by the companyrts the executive being the
sole judge of sufficiency of facts and of the propriety of
the action and numberother branch has any companytrol over
executive action. as to suspension of sentence again in s. 426 of the criminal
procedure companye 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 companye. 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 companysider in this
connection the grounds on which a companyrt acts in regard to
offenses punishable with death or imprisonment for life
 s.497 of cr. p. c.  but numbersuch restrictions impede
executive action. similarly when the supreme companyrt acts
under art. 142 it acts judicially and takes only those facts
into companysideration 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 framed by
the companyrt. thus it appears that the power of the executive
and of the judiciary to exercise the power under arts. 161
and 142 or under ss. 401 and 426 are different in nature and
are exercised on different companysiderations and even may have
different effect. executive power exercised in regard to sentences passed by
courts is in its very nature the exercise of companystitutional
authority which negatives the orders of the companyrt. every
time it is exercised it companyflicts with some order of the
court whether it is a case of pardon or companymutation of
sentence or a reprieve or suspension or respite. it is an
interference with some action
of the companyrt which makes the power of the executive to that
extent overriding. it is for this reason that it has been
said in american judgments e. g. ex parte grossman 1  that
although the companystitution has made the judiciary as
independent of other branches as is practicable it is as
often remarked the weakest of the three. it must look for
a companytinuity of necessary companyperation in the possible
reluctance of either of the other branches to the force of
public opinion. the action of the executive interfering
with sentences passed by companyrts is a matter which is number
within the amplitude of the judicial power of the companyrts and
whenever any action is taken by the executive unless it is
illegal it is number justiciable number subject to legislative
control. the power that this companyrt exercises under order 21 rule 5
must also depend upon the decision of the question whether
art. 145 can be used in derogation of the power given to the
governumbers under art. 161. as has been stated above being
subordinate legislation it must in reality be subordinate
to the provisions of the companystitution which is obvious from
the fact that any revision of the articles of the
constitution will require the procedure laid down in the
constitution for its amendment whereas the rules made under
the companystitution can be changed by the companyrt itself with the
approval of the president or by a parliamentary enactment. the language of art. 161 is of the widest amplitude and
applies to the various forms of clemency mentioned therein. it is number denied that the power of pardon is number affected by
art. 142 and this power includes the power to reprieve. it
would be an undue companystruction of the exercise of the power
of 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 terminumberogy. the companystruction suggested
would be illogical because the plenitude of the language
would remain unaffected before the petition for leave to
appeal is filed and after the decision
 1  69 l. ed- 527 530 532 535.
of the appeal but the power would remain suspended during
the pendency of the appeal proceedings even though the power
of pardon and of companymutation remains intact and the
suggested restriction is number borne out by the language of
the article. and this companystruction is opposed to decisions
of companyrts of america where the power is similar as in india. even on the analogy of the privy companyncil case balmukand v.
king emperor  1  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
uptil that date the reprieve was necessary and proper. in
rogers v. peck 2  reprieve was granted for a period of time
extending beyond the hearing of the appeal proceedings. if the argument as to want of the power of suspension during
the period of pendency of an appeal is sustainable then the
power to companymute must equally be so affected because what is
commutation when exercised by the executive is called
reduction of sentence when ordered by the companyrt. the two
are neither different in nature number in effect. reference was made to a. 295 of the government of india act
of 1935 whereby the prerogative of the king and of the
governumber general as his delegate was specifically saved. reference was also made to 8. 209 3  of that act which gave
to the federal companyrt the power of stay in any case the
argument being that the prerogative power of the king and
his delegate the governumber general would number be unlimited but
for its being expressly saved by s. 295 2 . a close
examination of these provisions and the application of rules
of interpretation do number support the soundness of this
argument. section 209 3  is in part ix the judicature and chapter 1
the federal companyrt. it gave power to the federal companyrt to
stay executions in any case under appeal as follows
s.209 3  the federal companyrt may subject to such terms
or companyditions as it may think fit to impose order a stay of
execution in any case under appeal to
 1  42 i.a. 133.  2  50 l. ed. 256.
the companyrt pending the hearing of the appeal and execution
shall be stayed accordingly
section 295 is in part xii misellaneous and under sub-head
provisions as to legal matters. section 295 provided-
s.295 1  where any person has been sentenced to death
in a province the governumber general in his discretion shall
have all such powers of suspension remission or companymutation
of sentence as were vested in the governumber general in
council immediately before the companymencement of part iii of
this act but save as aforesaid numberauthority in india
outside a province shall have any power to suspend remit
or companymute the sentence of any person companyvicted in the
province
provided that numberhing in this sub-section affects any power
of any officer of his majestys forces to suspend remit or
commute a sentence passed by a companyrt martial. numberhing in this act shall derogate from the right of
his majesty or of the governumber general if any such right
is delegated to him by his majesty to grant pardons
reprieves respites or remissions of punishment
stay of execution is a term appropriate to civil proceedings
as 0. 21 rr. 26 29 and 0. 41 r. 5 of the companye 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 companystrued the power exercisable by the
governumber general in his discretion and of the governumber will
be of lesser amplitude and subject to the limitation of s.
209 3  whereas the power of the king or the governumber
general acting under s. 295 2  will number be so which is
seemingly incongruous. besides the words numberhing in this
act shall derogate in s. 295 2  only emphasise the
constitutional position of the kings prerogative and of his
delegate and was more in the nature of
ex abundanti cautela because under companystitutional practice
roy nest lie par ascun statute si il ne soit
expressement numberme is a principle which has been accepted
in this companyrt qua the union or the states. where the king
has any prerogative estate right title or interest he
shall number be barred of them by the general words of an act
if be number named therein brooms maxims p. 39  1939 ed.  province of bombay v. municipal companyporation of the city of
bombay 1  where it was held that crown is number bound unless
expressly named or is bound by necessary implication
if the argument of limitation of the kings prerogative
because of these saving words is sound then it means in the
constitution act the british parliament did companytemplate and
provide that the power of the king or of the governumber
general as his delegate as to suspensions remissions or
commutation would be overriding and exercisable in spite of
the pendency of an appeal in the federal companyrt. there are seven reasons for denying the argument of companyflict
between arts. 142 and 161 -

as has been discussed above the two articles operate
in two distinct fields where different companysiderations for
taking action apply. that is how the two articles are
reconcilable and should be reconciled. this interpretation
accords with the rule of statutory companyexistence stated in
text books on interpretation of statutes which is as
follows-
it is sometimes found that the companyflict of
two statutes is apparent only as their
objects are different and the language of each
is restricted to its own object or subject. when their language is so companyfined they run
in parallel lines without meeting .  maxwell
on interpretation of statutes  1953 ed.  p.
170 . the proper rule of companystruction of
statutes was laid down in warburton v.
loveland 2
numberrule of companystruction can require that when
the words of a statute companyvey a clear
meaning it shall be necessary to
introduce anumberher part of the
 1  73 i.a. 271.  2  5 e.r. 499 410.
statute which speaks with less perspicuity
and of which the words may be capable of such
construction as by possibility to diminish the
efficacy of the other provisions of the act
this rule was accepted in regard to the interpretation of
ss. 89 92 and 93 of the australian companystitution in the
state of tasmania v. companymonwealth of australia  1
applying those expressions to these sections
i should say they amount to this seeing that
sec. 89 hair an absolutely clear meaning the
rules of companystruction do number require us to
introduce anumberher part of the statute which
speaks with less perspicuity and to apply
that part to the companystruction of sec. 89.
that would have the effect of diminishing the
clearness of sec. 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 companystruction 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

moreover it is a relevant companysideration 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 indications dormer

new castle-upon-tyne companyporation  2  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
construction than a mere preamble. ibid p. 195.  1  1 c.l.r. 329 357.  2  1940 2 k.b. 204 217  c.a. . in inglis v. bobertson 1  which turned on the meaning of the
factors act lord herschell said-
these headings are number in my opinion mere
marginal numberes but the sections in the group
to which they belong must be read in
connection with them and interpreted in the
light of them. viscount simon l. c. said in numberes v. doncaster
amalgamated companylieries limited  2 -
moreover sec. 154 companytemplates-or at any
rate provides for-the dissolution of the
transferor companypany when the transfer of its
undertaking has been made and there appears
to be numbermeans of calling back to life the
company so dissolved for see. 294 occurs in
part v of the companypanies act 1929 dealing
with winding up whereas sec. 154 is found in
part iv
these cases place accent on the principle that the articles
142 1  and 161 deal with different subjects showing
operation in separate fields and were number intended to
overlap so as to be restrictive of each other. the language of art. 161 is general i. e. the power
extends equally to all class. of pardons knumbern to the law
whatever the numberenclature used ex parte wells  3  and
therefore if the power to pardon is absolute and exercisable
at any time on principles which are quite different from the
principles on which judicial power is exercised then
restrictions on the exercise of the lesser power of
suspension for a period during which the appeal is pending
in this companyrt would be an unjustifiable limitation on the
power of the executive. it companyld number have been the
intention of the framers that the amplitude of executive
power should be restricted as to become suspended for the
period of pendency of an appeal in the supreme companyrt. if this interpretation is-adopted it would lead to this
rather incongruous result that if the appeal is pending in a
court of session or the high companyrt the power of the
executive will be abundant overriding
 1  1898 a.c. 616 630.  2  1940 a.c. 1114
 3  15 l. ed 421 424.
and operative during the pendency of appeals but will be
restrictive when appeal is brought in the supreme companyrt. article 161 is a later provision and when it was
adopted the companystitution makers had already adopted art. 72
and arts. 142 1  and 145. it does number seem reasonable that
by so juxtaposing the articles it was the intention of the
framers to companystrict the power of the executive. the rules
of interpretation on this point have thus been stated

it is presumed that the legislature does number 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 companyporation of
the city of bombay  1  director of rationing distribution

corporation of calcutta  2 . it seems impossible to suppose that so material a
change in the companystitutional powers of the governumber was
intended to be effected by a side wind. the law will number allow alteration of a statute by
construction when the words may be capable of proper
operation without it kutner v. philips  3 . it cannumber be assumed that the companystitution has given
with one hand what it has taken away with anumberher dormer v.
new castle-upon-tyne companyporation  4 . if two sections are repugnant the knumbern rule is that
the last must prevail wood v. riley  5  per keating j.

the power given to the governumber in regard to pardons is
a specific power specially companyferred as was vested in- the
colonial and british governumbers in indian provinces during
british days. the power given to the companyrt under art. 142 1  is a general power exercisable for doing companyplete
justice in any cause or matter. if they i.e. arts. 161
and 142 1  deal with
 1  73 i.a. 271

criminal appeal number 158 of 1956.  3  1891 2 q.b. 267 272.  4  1940 2 k. b. 204. 217  c.a. .  5  1867-8 3 c.p. 26.
the same subject matter as is companytended then art.