# [1955] 2 S.C.R. 1022

- **Citation:** [1955] 2 S.C.R. 1022
- **Court:** Supreme Court of India
- **Decided:** 1955-06-17
- **Case number:** Criminal Appeal No. 90 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-2-s-c-r-1022-1228
- **Pages:** 8

## Headnote

Dec1mh1r 1.
1022
SUPREME COURT REPORTS
[1955]
THAIVALAPPIL KUNJUVARU VAREED
fl.
THE STATE OF TRAVANCORE-COCHIN.
l S. R. DAs, AcTING C. J., VIVIAN BosE, BHAGWATI,
JAGANNADHADAS and B. P. SINHA JJ.]
Constitution of India, Arts. 72, 161 and 238-Prerogative right
of pardon vested in the Mahara7a of Cochin and affirmed by Art. XX!
of Covenant dated 29th May 1949 entered into between the Rulers of
Travancore and Cochin~Whet!1er superseded and abrogated in view
of thr:
acccJ·sion
and integration of United State of Travancore·
Cochin with Dominion of India and the Union of India-Whether
itJ r:ontinuence consistent U'ith ~4rts. 62, 161 and 238 of the Constitutioa.
A sentence of death passed on the appellant by the Sessions
Judge of Trichur
(now siturrted in the United State of TravancoreCochin and previously in the former State of Cochin) was confirmed
by the High Court. Mercy petitions presented to the Raj Pramukh
of Travancore-Cochin and to the President of
India were rejected.
The
question for
determination was
v;hether the appellant could
rely on the pre-existing power of the Maharaja of Cochin to exercise
the po,ver of pardon in respect of a sentence of death passed by the
courts in his
State,
the prerogative right having been affirmed by
Art. XX! of the Covenant dated the 29th May
1949, entered into
between the Rulers of T ra vancore and Cochin.
Held that the
pre-existing
prerogative right of pardon vested
in the Maharaja of Cochin must be taken to have been superseded
and abrogated having regard to the event.s which culminated in the
accession and integration of the State of Travancore+Cochin with
the Dominion of India and thereafter its absorption into the Union
of India when the Constitution of India came into force on the 26th
January 1950, the continuance of such prerogative being inconsistent
\Vith Arts. 72, 161 and 238 of the Constitution.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 90 of 1955.
On appeal by special leave from the Judgment
and order dated the 17th June 1955 of the Travancore-Cochin High Court at Ernakulam in Criminal
Miscellaneous Petition
No. 113
of 1955 (R.T. No. 4
of 1954 and Criminal Appeal No. 136 of 1954).
B. R. L. Iyengar, for the appellant.
Sardar Bahadur, for the respondent.
2S.C.R.
SUPREME COURT REPORTS
1023
1955. December 1. The Judgment of the Court
was delivered by
JAGANNADHADAS J.-This is
an appeal
by special
leave
and
arises
under somewhat
unusual
circumstances. The appellant was convicted of murder in
Sessions Case No. lO of 1954 by the Sessions Judge of
Trichur now in the
State of Travancore-Cochin and
sentenced to death. The sentence was in due course
confirmed by the High Court and an application for
leave to appeal against it to this
Court was rejected.
The appellant filed
mercy
petitions
to
the RajPramukh of Travancore-Cochin and to the President
of India and both of them were rejected.
After all
these attempts had failed, the Sessions Judge issued
a warrant on the 29th March, 1955, fixing 6th April,
1955,
for the
execution of the
prisoner.
Meanwhile,
the
Superintendent, Central
Jail,
Viyyur,
where the
condemned prisoner was lodged, informed the Sessions'
Judge by his letter dated the 1st April, 1955, that the
prisoner had sent a mercy petition to the Maharaja
of Cochin and requested for directions, since no orders
had
been
received
in
respect of
that petition.
It
may
be
mentioned
that
the
Sessions
Division
of
Trichur is admittedly in the former State of Cochin.
It does not appear from the record whether this mercy
petition to the Maharaja of Cochin was sent before
or after the mercy petitions to the Raj-Pramukh of
Travancore-Cochin and to the President were disposed
of. On receipt of the letter dated the 1st April, 1955,
from the
Superintendent,
Central
Jail,
the
Sessions
Judge passed an order that the circumstances of the
case demanded that the execution of the sentence
should not take place on the date already fixed.
He
accordingly issued an order staying execution of the
s

## Text

Dec1mh1r 1.
1022
SUPREME COURT REPORTS
[1955]
THAIVALAPPIL KUNJUVARU VAREED
fl.
THE STATE OF TRAVANCORE-COCHIN.
l S. R. DAs, AcTING C. J., VIVIAN BosE, BHAGWATI,
JAGANNADHADAS and B. P. SINHA JJ.]
Constitution of India, Arts. 72, 161 and 238-Prerogative right
of pardon vested in the Mahara7a of Cochin and affirmed by Art. XX!
of Covenant dated 29th May 1949 entered into between the Rulers of
Travancore and Cochin~Whet!1er superseded and abrogated in view
of thr:
acccJ·sion
and integration of United State of Travancore·
Cochin with Dominion of India and the Union of India-Whether
itJ r:ontinuence consistent U'ith ~4rts. 62, 161 and 238 of the Constitutioa.
A sentence of death passed on the appellant by the Sessions
Judge of Trichur
(now siturrted in the United State of TravancoreCochin and previously in the former State of Cochin) was confirmed
by the High Court. Mercy petitions presented to the Raj Pramukh
of Travancore-Cochin and to the President of
India were rejected.
The
question for
determination was
v;hether the appellant could
rely on the pre-existing power of the Maharaja of Cochin to exercise
the po,ver of pardon in respect of a sentence of death passed by the
courts in his
State,
the prerogative right having been affirmed by
Art. XX! of the Covenant dated the 29th May
1949, entered into
between the Rulers of T ra vancore and Cochin.
Held that the
pre-existing
prerogative right of pardon vested
in the Maharaja of Cochin must be taken to have been superseded
and abrogated having regard to the event.s which culminated in the
accession and integration of the State of Travancore+Cochin with
the Dominion of India and thereafter its absorption into the Union
of India when the Constitution of India came into force on the 26th
January 1950, the continuance of such prerogative being inconsistent
\Vith Arts. 72, 161 and 238 of the Constitution.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 90 of 1955.
On appeal by special leave from the Judgment
and order dated the 17th June 1955 of the Travancore-Cochin High Court at Ernakulam in Criminal
Miscellaneous Petition
No. 113
of 1955 (R.T. No. 4
of 1954 and Criminal Appeal No. 136 of 1954).
B. R. L. Iyengar, for the appellant.
Sardar Bahadur, for the respondent.
2S.C.R.
SUPREME COURT REPORTS
1023
1955. December 1. The Judgment of the Court
was delivered by
JAGANNADHADAS J.-This is
an appeal
by special
leave
and
arises
under somewhat
unusual
circumstances. The appellant was convicted of murder in
Sessions Case No. lO of 1954 by the Sessions Judge of
Trichur now in the
State of Travancore-Cochin and
sentenced to death. The sentence was in due course
confirmed by the High Court and an application for
leave to appeal against it to this
Court was rejected.
The appellant filed
mercy
petitions
to
the RajPramukh of Travancore-Cochin and to the President
of India and both of them were rejected.
After all
these attempts had failed, the Sessions Judge issued
a warrant on the 29th March, 1955, fixing 6th April,
1955,
for the
execution of the
prisoner.
Meanwhile,
the
Superintendent, Central
Jail,
Viyyur,
where the
condemned prisoner was lodged, informed the Sessions'
Judge by his letter dated the 1st April, 1955, that the
prisoner had sent a mercy petition to the Maharaja
of Cochin and requested for directions, since no orders
had
been
received
in
respect of
that petition.
It
may
be
mentioned
that
the
Sessions
Division
of
Trichur is admittedly in the former State of Cochin.
It does not appear from the record whether this mercy
petition to the Maharaja of Cochin was sent before
or after the mercy petitions to the Raj-Pramukh of
Travancore-Cochin and to the President were disposed
of. On receipt of the letter dated the 1st April, 1955,
from the
Superintendent,
Central
Jail,
the
Sessions
Judge passed an order that the circumstances of the
case demanded that the execution of the sentence
should not take place on the date already fixed.
He
accordingly issued an order staying execution of the
sentence,
previously
ordered
by
his
warrant dated
the 29th March, 1955.
At this stage, the Public Prosecutor filed an application to
the Sessions Judge on
the 30th May, 1955, praying that the stay may be
vacated
and
that fresh
directions
to execute
the
warrant may be issued.
On that application,
the
Public Prosecutor raised the question that a mercy
1955
Tliaivalappil
Irunjuvaru Var11d
Y.
The Stall of
T ravancor1-Cochin
1955
TloaioalaHil
KwijutJMU fl' amd
v.
Tiu S1a11 of
T rauancor4-Cochin
]agartnadhadas ].
1024
SUPREME COURT REPORTS
[1955]
pet1t1on to the Maharaja of Cochin, who as such, has
lost sovereignty over the territory forming part of
the previous Cochin State, and hence also lost his
prerogative of pardon, was incompetent and
could
not stand in the way of the warrant being executed.
The learned Sessions Judge dealt with this question
and agreed with the contention
of: the Public Prosecutor. Accordingly, he vacated
the
stay and issued a
fresh warrant for execution of the prisoner giving a
week's time to the prisoner to take the matter on appeal to the High Court, if so advised.
The prisoner
filed an appeal to the High Court and the learned
Judges of the High Court after consideration of the
arguments on both sides agreed with the view taken
by the learned Sessions Judge, and dismissed the
appeal by its judgment dated the 17th June, 1955.
The present appeal is against this order of the High
Court.
For the hearing of this appeal counsel was assigned
to the appellant
amicus curiae and
all
the relevant
constitutional provisions have
been fully
and fairly
placed before us. Learned counsel appearing for the
State has also been heard.
We are satisfied that the
question that has been raised does not admit of substantial argument and that the
view taken by both
the Courts below is correct.
The entire basis for any argument on behalf of the
appellant is the pre-existing undoubted
power of the
Maharaja of Cochin to exercise the
prerogative of
pardon in respect of a sentence of death passed by
the courts within his State. That prerogative right
has been affirmed in Article XXI of the Covenant
dated the 29th
May, 1949, entered into between the
Rulers of Travancorc and Cochin for the formation of
the United State of Travancore and Cochin. The
article is in the following terms :
"Notwithstanding
anything
contained
in
the
preceding provisions of this Covenant, the Rulers of
Travancore and Cochin shall continue to have, and
exercise, their present powers of suspension, remission
or commutation of death sentences in respect of any
person who may have been, or is hereafter, sentenced
I
f
'
2S.C.R.
SUPREME COTJRT REPORTS
1025
to death for capital offence committed within the
territories of Travancore or Cochin as the case may
be".
It is only on the assumption that the power thus recognised in this article of the Covenant still survives
in the Maharaja of Cochin, notwithstanding that he
had lost his sovereignty over the territories which
constituted the State of Cochin that the appellant
has any statable case. -But this assumption is clearly
unfounded having regard to the events which culminated in the accession and integration of the State of
Travancore-Cochin with the Dominion of India and
thereafter its absorption into the Union of India,
when the Constitution of India came into operation
on
the 26th January, 1950. The relevant historical
events may briefly be stated.
In August, 1947, the Rulers of the States of Travancore and Cochin executed separate instruments of
accession to the Dominion of India on the same lines
as most other Indian States did, at the time. In
May, 1949, the two States formed into a United State
under a Covenant signed by each of the Maharajas,
the provisions of which were guaranteed by the Government of India. It is Article XXI of this Covenant
which has already been referred to and which provides
for the continuance of the prerogative of the Maharaja of Cochin for commutation of death sentences
within his State. Under this Covenant it was also
. provided that the then Ruler of Travancore should be
the first Raj Pramukh of the United State of Travancore-Cochin.
It was specifically
provided
by
Article
IX thereof as follows :
"The Raj Pramukh shall,
within a fortnight
of
the appointed day, execute on behalf of the United
State an Instrument of Accession in accordance with
the provisions of section 6 of the Government of
India Act, 1935, and in place of the Instruments of
Accession of the Covenanting States".
By Article X(4) of the Covenant it was provided
that
"The
Legislature of the United State shall, subject to the provisions of this Covenant, have full power
191)1)
Thaivalappil
KUl!furaru Yatud
v.
Tm Stat, of
T ra111111COr,..Co&/iitt
Jag1JMadliar/a1 J.
1955
T haivalappil
Kunjuvaru V arttd
v.
The State of
Travantore-Cochin
:Jagannadhadas].
1026
SUPREME COURT REPORTS
[1955]
to make
laws for the United State, including provisions as to the Constitution of the United State, within the framework of this Covenant and the Constitution of India".
In pursuance
of article
IX,
the
Raj
Pramukh of
Travancore-Cochin executed an Instrument of Acce<-
>ion dated the 14th July,
1949,
which was accepted
bv the Governor-General of India on the 15th August,
1949. By article I of this Instrument it was declared
that the United State acceded to the Dominion of
India. In pursuance of Article X(4) the legislative
assembly
of the
State of Travancore-Cochin resol"ed
that the
Constitution
framed
by the
Constituent
Assembly be adopted by
the State. In cons•:quence
thereof the Raj Pramukh of Travancore-Cochin issued
a proclamation dated the 24th November, 1949, which
runs as follows :
"Whereas with the inauguration of the new Constitution for the
whole of India now being framed
by
the Constituent Assembly of India, the Government
of India Act, 1935, which now governs the constitutional relationship between this State and the Dominion of India. will stand repealed ;
!
and whereas, in the best interests of the United
State of Travancore and
Cochin, which
is
closely
linked with the rest of India by a community of interests in the economic, political and other fields, it
is desirable that the constitutional relationship established between this State and the Dominion of India,
should not only be continued as between this State
and the contemplated Union of India further strengthened, and the Constitution of India as drafted by the
Constituent Assembly
of India, which includes duly
appointed
representatives of this State,
provides a
suitable basis for doing so ;
And whereas by virtue of the power vesting in it
under
the
Covenant
establishing
this
State,
the
Legislative Assembly of the State
has resolved that
the
Constitution framed by the Constituent Assembly
of India be adopted by this State ;
I now hereby declare and direct-
2 S.C.R.
SUPREME COURT REPORTS
1027
That
the
Constitution
of India shortly to be
adopted by the Constituent Assembly of India shal.l
be the Constitution for the United State of Travancore and Cochin as for the other parts of India and
shall be enforced as such in accordance with the tenor
of its provisions :
That the provisions of the said Constitution shall
as from the date of its commencement, supersede
and abrogate
all
other constitutional
provisions
inconsistent therewith which are at present in force in
this State".
For our present purposes, the last paragraph in this
Proclamation is
important. On the coming into force
of the Constitution of India on the 26th
January,
1950,
the
State of Travancore-Cochin became a part
of the Union of India and was one of the Part B
States as provided under article 1 clause
(2) taken
with Part B of the First Schedule. The Constitution
specifically provided for the prerogative
of mercy in
respect of sentences of death in articles 72, 161
and
238. Article 72 provides for the power of the President, article
161 for the power of the Governor in a
Part A State,
and article 238(1)
taken with article
161 for the power of the Raj Pramukh of a Part B
State. In the light of these provisions the continuance
of the
prerogative of the Maharaja of Cochin
relating to the execution of the death sentences with
reference to the ex-State of Cochin would be inconsistent with the new Constitution. Such power, therefore, must be taken to have 'been superseded and abrogated as stated in the last para of
the Proclamation
above mentioned.
It would follow
that article XXI
of the Covenant of May, 1949, no longer survives.
Article 372 ( 1) of the Constitution has also been relied upon on behalf of the
appellant. This runs
as
follows:
"Notwithstanding
the repeal
by
this Constitution of the enactments referred to in article 395 but
subject to the other provisions of this Constitution,
all the law in force in the territory of India immediately before the commencement of this Constitution
shall continue in force
therein until altered or re1955
Thaioalappil
K utifuoaru Varud
v.
Tiu State of
T ravancore-Cochin
Jagannadhadat ].
1955
Tbai«llaHiJ
,. .. ,;..- v.,...i
v.
Tile Slllt• qf
T fDDont;orf.Cochin
1028
SUPREME COURT REPORTS
[1955)
pealed or amended
by a competent Legislature
or
other competent authority".
The
argument based
on this article is that the
criminal law of the ex-Cochin State continued to be
in force in spite of the new Constitution having come
into force and that the exercise of the prerogative by
the Maharaja of Cochin in respect of the ex-State of
Cochin was an integral part of that law. Apart from
the question
whether such prerogative which was incidental to his sovereignty, could survive after he lost
his sovereignty
over
the
territory, the difficulty in
the way of this argument is two-fold. (1) The continuance is
subject to the other provisions of the
Constitution ; and (2) The continuance is only until
altered or repealed or amended by a competent Legislature.
As already
pointed out,
the
continuance of
the prerogative of the Maharaja of Cochin would be
inconsistent with articles 72, 161 and 238 of the Constitution. Further it is
to he
noticed
that by the
Code of Criminal Procedure (Amendment) Act, 1951,
(Central Act I of 1951), passed by the Union Legislature, the Code of Criminal Procedure, 1898, has been
made applicable to the whole of India by amending
section 1 of the Code and by substitution therein for
the words "whole of India except Part B States'', the
words "whole of India except the States of Jari:tmu
and Kashmir and Manipur". The Code of Criminal
Procedure and along with it sections 401, 402, and
402-A thereof,
relating to commutation of sentences
having thus been made specifically applicable to all
Part B States by Central Act I of 1951, the . prerogative under the old Cochin law must in any case be
deemed to have been repealed or abrogated by competent
legislative
authority
after the
coming
into
force of the Constitution. It was suggested in the
Courts below that in so far as the Maharaja's prerogative was concerned the Legislature was incompetent
to abrogate . it in view of article 362 of the Constitution. But that article has no bearing. It refers only
to personal rights, privileges and dignities of the
Rulers of Indian States. It is obvious even from the
Covenant, in which article XXI appears, that the
...
2S.C.R.
SUPREME COURT REPORTS
1029
power of pardon thereunder is different from "personal rights, privileges and dignities" which have been
dealt with under articles XVI and XVII in the following terms.
"XVI. The Ruler of each
Covenanting State,
as also the members of his family, shall be entitled
to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day
of August, 1947.
XVII. ( 1) The succession, according to law and
custom to the gaddi of each Covenanting State and
to the personal rights, privileges, dignities and titles
of the Ruler thereof is hereby guaranteed".
There is thus no substance in any of the arguments
on which the ca~ for the appellant can possibly be
presented.
This appeal is accordingly dismissed.
THAKUR PRAT AP SINGH
f).
SHRI KRISHNA GUPTA AND OTHERS.
[S. R. DAs, ACTING C. J., V1v1AN BosE. BHAGWATI,
fAGANNADHADAS and B. P. SINHA JJ.]
Jilt!ction Dispute-Rule requiring candidate to state occupati-:m
in nomination paper-If mandatory in character-Duty of CourtCentral Provinces and Berar Municipalities Act (II) of 1952, ss. 9(1)
(iii) (c), 23.
The appellant was a candidate for the office of President of the
Municipal
Committee, Damoh. The nomination was made in an
o\d form under the old rules which required a candidate to enter his
caste.
Under the new rules this was changed and occupation had
to be stated instead, which none except the respondent No. I had
done. Objection to the validity of the appellant's nomination paper
was overruled by the Supervising Officer. The appellant secured the
highest number of votes and was declared elected. The respondent
No. 1, thereupon, filed the election petition. He failed in the Election Tribunal which held that the defect was not substantial and
was curable. The High Court, however,
reversed this decision in
revision, holding that failure to comply with any of the provisions
set out in the rules was fatal and in such cases the nomination papct
should be rejected.
1955
ThaiaalaOllU
EwfirwotM V amd
v.
Th• SIDie of
T rav1111&0t1-Cochin
]opullldhad1J1 J.
1955
Decem6'r 2.