K.M. NANAVATI V. STATE OF BOMBAY
(1961) 1 SCR 497: AIR 1961 SC 112
FACTS
The Petitioner was Second in Command of 1. N.S. Mysore, which came to Bombay in the beginning of March 1959. On April 27, 1959, the Petitioner was arrested in connection with a charge of murder under Section 302 of the Indian Penal Code and was therefore produced before the Additional Chief Presidency Magistrate, Greater Bombay. The magistrate remanded him to police custody but later, on receiving a letter, the magistrate directed the accused to be kept in Naval Custody in jail and detention headquarters in Bombay. The trial took place in front of a jury wherein they returned the verdict of “Not Guilty”. The sessions judge made a reference to the High Court under Section 307 of the Criminal Procedure Code, disagreeing with the verdict of the jury. The High Court accepted the reference and convicted the Petitioner under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. On the same day, the Governor of Bombay passed an order suspending the sentence passed by the learned High court via an order, until the appeal is filed in the Supreme Court against his convictions.
ISSUE
The impending question addressed in the current scenario deals with whether the order of the Governor of Bombay dated March 11, 1960 passed exercising powers conferred to him as per article 161 of the Constitution impinges the judicial powers of the court conferred upon it through article 142 of the Indian Constitution.
DECISION OF THE HIGH COURT
The High Court examined the validity of the action taken by the Governor and the special bench came to the conclusion that the order passed by the Governor was not invalid, the suspension of the order directing the Petitioner to be detained in naval custody was also not unConstitutional. Further the order of the Governor did not affect the power of the Supreme Court with particular reference to Rule 5 of Order 21 of the Rules of the Supreme Court. Hence, the High Court held that as the order made by the Governor had not been shown to be unConstitutional or contrary to law, the warrant should not be reissued until the appeal to be filed in the Supreme Court had been disposed of, unless the order made by the Governor stands cancelled or withdrawn before that event.
RULES
Section 401 of the Code of Criminal Procedure gives power to the executive to suspend the execution of the sentence or remit the whole or any part of the punishment without conditions or according to conditions which the person sentenced accepts. Section 402 of the Code of Criminal Procedure gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature.
Article 72 of the Indian Constitution deals with the power of the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 of the Indian Constitution gives power to the Governor of a State with respect to offences against any law relating to a matter to which the executive power of the State extends. Article 145 of the Indian Constitution gives power to this court with the approval of the President to make Rules for regulating generally the practice and procedure of the court.
JUDGEMENT AND ANALYSIS
- It was observed by this Hon'ble court that Sections 401 and 402 of the Code have continued with necessary modifications to bring them into line with Articles 72 and 161. It was also observed that Articles 72 and 161 not only dealt with pardons and reprieves which were within the royal prerogative but also included what was provided in Sections 401 and 402 of the Code. Further, it was also examined that the power of the Governor of the State overlaps with that of the President (Article 162) to some extent. These articles are not subject to limitations and the exercise of their powers are not fettered by that of the Articles 142 and 145 of the Constitution or by any other law. As the
- As the article 161 is without any limitation or fetters from Section 401 of the Code of Criminal Procedure, the Governor could suspend the execution of the sentence passed by the High Court even during the period that the matter was pending in this court. In other words, the same power of dealing with the matter of suspension of sentence is vested both with this court as also with the Governor. This further raised the question of the extent of power under Section 401 of the code with respect to suspension, as compared to the powers under Section 426 of the code, that enables the court pending appeal to suspend the sentence or to release the Appellant on bail. It was therefore examined that Section 401 occurs, deals with a situation in which pendency of an appeal is not envisaged and Section 426 deals with a situation in which pendency of an appeal is postulated. Since both the provisions were unfettered it was imperative that such provisions were harmonised. It was observed that both such provisions can be harmonised if Section 426 is held to deal with a special case restricted to the period while the appeal is pending before an appellate court while Section 401 deals with the remainder of the period after conviction. The words “at any time” emphasise that the power under Section 401 can be exercised without limit of time, but they do not necessarily lead to the inference that this power can also be exercised while the court is seized of the same matter under Section 426.
- It was further observed by this Hon'ble court that since one power was executive in nature (Article 161) and the other judicial (Article 142), doesn't mean that they can never be exercised in the same field. The field in which the power is exercised does not depend upon the authority exercising the power but upon the subject-matter. Harmonious construction of the two provisions became a necessity so that they can exist simultaneously and any conflict between them be avoided. It was already pointed out that article 161 and article 142 contained no words of limitation and were unfettered. The ambit of article 161 was wide and the power coinciding between the two articles existed as a very small component under article 161. Therefore, it was held that article 161 does not deal with the suspension of sentence during the time that Article 142 is in operation and the matter is sub judice in this court.
- In the present case, it was observed that the governor has authority to grant a full pardon called “mercy jurisdiction” at any time even during the pendency of the case in this court. Such a pardon after the accused person has been convicted by the court has the effect of completely absolving him from all punishment or disqualification attached to a conviction for a criminal offence. Such a power was vested in the executive because the judiciary has no authority of “mercy jurisdiction”. However, if the suspension of the sentence for the period when this court is in seizin, it paramounts to a fact that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. The court further observed that as 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 Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution. Therefore, it was held that the Governor granting suspension of the sentence could only operate until the matter became sub judice in this court on the filing of the petition for special leave to appeal. The Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this court.
- In the dissenting judgement, Justice Kapur J.observed that the two articles 142 and 161 operate in two distinct fields where different conditions apply. The two articles are reconcilable and should be reconciled. He further said that no rule of construction can require that when the words of a statue convey a clear meaning, it shall be necessary to introduce another part of the
RELEVANT THEORY
The basis of the principle of harmonious construction is that the legislature never intends to contradict itself by providing two repugnant provisions in the same statute. The Act has to be read as a whole and its provisions have to be harmonised giving effect to all of them. The rule of harmonious construction says that when two or more provisions of the same statute are repugnant, the Court tries to construe these provisions in such a manner, as to give effect to both by harmonising them with each other. The court may do so either by holding two or more apparently conflicting provisions as dealing with separate situations or by holding that one provision merely provides for an exception of the general rule contained therein. The court had an endeavour to always adopt the harmonious construction. It was examined that the entire statute must be first read as a whole, then Section by Section, clause by clause, phrase by phrase and word by word, and the relevant provisions must be read harmoniously.
Harmonious construction should be applied to statutory rules and courts should avoid absurd or unintended results. It should be resorted to making the provision meani