# K. M. NANAVATI v. THE STATE OF BOMBAY

- **Citation:** [1961] 1 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** B. P. Sinha, J. L. KA~Ult, P. B. GAJENDltAGADKAlt, K. SuBBA RAO, Ic N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-m-nanavati-v-the-state-of-bombay-2185
- **Pages:** 68

## Headnote

Sentence, suspension of-Order by Governor during pendency of
appeal in the Supreme Cotirt-If constitutionally valid-Governor's
power of clemency-Court's power of granting bail or suspending
sentence-Harmonious exercise of two powers-The Constitution of
India, Arts. I6I, I42-Suprcme Court Rules, Order XXI, r. 5.
The petitioner was Seco.nd in Command of l. N. S. Mysore
which came.to Bombay in the beginning of March, 1959· Soon
thereafter he was arrested on a charge of murder under s. 302
of ·the Indian Peria] Code and was placed, and continued to
remain, in naval custody all along during his trial. In due
course he was placed on trial by a jury before the Sessions
Judge, Greater Bombay, in which the jury returned a verdict of
not guilty by a majority; but the Sessions Judge disagreeing
with the verdict of the jury made a reference to the High Court
which convicted the petitioner under s. 302 of the Indian Penal
Code and sentenced him to imprisonment for life.
On the same
day when the High Court pronounced its judgment the Governor o(Bombay passed an order under Art. '161 of the Constitution of India suspending the sentence passed by the High Court
of Bombay on the petitioner until the appeal intended to be
filed by him in the Supreme Court against his conviction and
sentence was disposed of and subject meanwhile to the condition
that he shall be detained in the Naval Jail custody. A warrant
for the arrest of the petitioner which was issued in pursuance of
the judgment of the High Court was returned unserved with the
report thaf it could not be served in vie1v of the order of the
Governor suspending the sentence passed upon the petitioner.
In course of the hearing of an application for leave to
appeal to the Supreme Court filed by the petitioner in the High
Court the matter of the unexecuted warrant was placed before
it and a Special Bench of'.the High Court after examining the
validity of the action taken by the Governor came to the c011clusion that the order passed by the Governor was not invalid,
that the order for detention of the petitioner in naval custody
was not unconstitutional and that the sentence passl'd on the
petitioner having been suspended the provisions of 0. XXI, r. 5,
of the Supreme Court Rules rlid not apply and it was not
n.ecessary for the petitioner to surrender to his sentence.
Thereafter· the petitioner filed an application for special
leave in the Supreme Court and also another application praying for exemption from· compliance with the aforesaid rule and
Sf!pteniber 5.
I<. M. /tw""""':ati
v.
The State of
Bombay
498
SUPHEME COURT HEPORTS
[ 1961]
for the hearing of his application {or special leave without
surrendering to his sentence. His pica at first was that as he
was not a free man it was not possible for him to comply with
the requirements of 0. XX!, r. 5, of the Supreme Court Rules;
but he subsequently amended it to the effect that the aforesaid
Rule did not apply to his case in view of the Governor's order.
On a reference of this matter by a Division Bench of this Court
to the Constitution Bench for hearing.
Held, that the Governor had no power to grant the suspension of sentence for the period during which the matter was
sub-judice in this Court. The Governor's qrder suspending the
sentence could only operate untir the matter brcame sub-ju<lice
in this Court on the filing of the petition for special leave to
appeal whereupon this Court being in seisin of the matter would
consider whether 0. XX!, r. 5 should be applied or the petitio-.
ner should be exempted from the operation thereof as prayed
for.
It would then be for tliis Court to pass such orders as it
thought fit as to whether bail should be granted to the petitioner or he should surrender to his sentence or to pass such other
order as the court deemed lit in the circumstances of the case.
On the principle of harmonious construction and to a\'oid a
possible conflict between the powers given under Art. 161 to the
Governor and under Art. 142

## Text

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1 S.C.R. SUPREME COURT REPORTS
497
K. M. NANAVATI
v.
THE STATE OF BOMBAY
(B. P. SINHA, c. J., J. L. KA~Ult, P. B. GAJENDltAGADKAlt, K. SuBBA RAO and- IC N. WANCHOO, JJ.)
Sentence, suspension of-Order by Governor during pendency of
appeal in the Supreme Cotirt-If constitutionally valid-Governor's
power of clemency-Court's power of granting bail or suspending
sentence-Harmonious exercise of two powers-The Constitution of
India, Arts. I6I, I42-Suprcme Court Rules, Order XXI, r. 5.
The petitioner was Seco.nd in Command of l. N. S. Mysore
which came.to Bombay in the beginning of March, 1959· Soon
thereafter he was arrested on a charge of murder under s. 302
of ·the Indian Peria] Code and was placed, and continued to
remain, in naval custody all along during his trial. In due
course he was placed on trial by a jury before the Sessions
Judge, Greater Bombay, in which the jury returned a verdict of
not guilty by a majority; but the Sessions Judge disagreeing
with the verdict of the jury made a reference to the High Court
which convicted the petitioner under s. 302 of the Indian Penal
Code and sentenced him to imprisonment for life.
On the same
day when the High Court pronounced its judgment the Governor o(Bombay passed an order under Art. '161 of the Constitution of India suspending the sentence passed by the High Court
of Bombay on the petitioner until the appeal intended to be
filed by him in the Supreme Court against his conviction and
sentence was disposed of and subject meanwhile to the condition
that he shall be detained in the Naval Jail custody. A warrant
for the arrest of the petitioner which was issued in pursuance of
the judgment of the High Court was returned unserved with the
report thaf it could not be served in vie1v of the order of the
Governor suspending the sentence passed upon the petitioner.
In course of the hearing of an application for leave to
appeal to the Supreme Court filed by the petitioner in the High
Court the matter of the unexecuted warrant was placed before
it and a Special Bench of'.the High Court after examining the
validity of the action taken by the Governor came to the c011clusion that the order passed by the Governor was not invalid,
that the order for detention of the petitioner in naval custody
was not unconstitutional and that the sentence passl'd on the
petitioner having been suspended the provisions of 0. XXI, r. 5,
of the Supreme Court Rules rlid not apply and it was not
n.ecessary for the petitioner to surrender to his sentence.
Thereafter· the petitioner filed an application for special
leave in the Supreme Court and also another application praying for exemption from· compliance with the aforesaid rule and
Sf!pteniber 5.
I<. M. /tw""""':ati
v.
The State of
Bombay
498
SUPHEME COURT HEPORTS
[ 1961]
for the hearing of his application {or special leave without
surrendering to his sentence. His pica at first was that as he
was not a free man it was not possible for him to comply with
the requirements of 0. XX!, r. 5, of the Supreme Court Rules;
but he subsequently amended it to the effect that the aforesaid
Rule did not apply to his case in view of the Governor's order.
On a reference of this matter by a Division Bench of this Court
to the Constitution Bench for hearing.
Held, that the Governor had no power to grant the suspension of sentence for the period during which the matter was
sub-judice in this Court. The Governor's qrder suspending the
sentence could only operate untir the matter brcame sub-ju<lice
in this Court on the filing of the petition for special leave to
appeal whereupon this Court being in seisin of the matter would
consider whether 0. XX!, r. 5 should be applied or the petitio-.
ner should be exempted from the operation thereof as prayed
for.
It would then be for tliis Court to pass such orders as it
thought fit as to whether bail should be granted to the petitioner or he should surrender to his sentence or to pass such other
order as the court deemed lit in the circumstances of the case.
On the principle of harmonious construction and to a\'oid a
possible conflict between the powers given under Art. 161 to the
Governor and under Art. 142 to the Supreme Court, both of
which are absolute and unfettered in their respective fields of
operation, it mu;t be held that Art. 161 does not deal wjth the
suspension of sentence during the time that Art. 142 is in operation and the matter is sub-judice in the Supreme Court.
Per KAPVK .J. (dissmti11g)-The language of Art. 161 is of
the widest amplitude. It is plenary and an act of grace and
clemency and may be :termed as bt·nign prerogative of mercy.
The power of pardon is absolute and exercisable at any time.
Rules framed under Art. 145 are subordinate legislation and
cannot override the provisions of Art. 161 of the Constitution
itself. While the Governor's power to grant pardon is a power
specially conferred upon him as was vested in the British
\;overnor in British days, the power given lo the Court under
Art. 142(1) is a general power exercisable for doing complete
justice in any cause or matter, and if they deal with the same
matter then Art. 161 must prevail over Art. 142(1). The two
·pOY•crs may have the same ~ffecl but they operate in distinct
fields on different principles taking wholly irreconcilable factors
into consideration.
The action taken by the executive being the exercise of
overriding power is not subject to judicial review.
It could not have been the intention of the framers of the
Constitution that the amplitude of executive power should be
restricted as to become suspended for the period of pendency of
an appeal in the SupremeCourt.
1 S.C.R. SUPREME COURT REPORTS
499
CRIMINAL APPELLATE JuRISDICT.lON: Criminal Misc.
Petn. No. 320/60.
K. M. Nanal!ati
Application for exemption from c01npliance with
v.
the requirements of Rule 5 of Order XXI, Supreme
Th• Stat• of
Court Rules, 1950 (e.s amended).
Bombay
1960. July 18, 19, 20, 21, 22.
S. N. Andley, J. B. Dadachanji, Rameshwar Nath
and P. L. Vohra, for the petitioner.
H. M . . Seervai, Advocate-General for the State of
Bombay, Atul Setalved and R. H. Dhebar, for the respondent.
[Sinha C. J.-Do you dispute the power of the
· Court to make this rule ? ]
..
H. M. Seervai :-No, My Lord. The Court imposes
a penalty in its judicial capacity; the Executive
remits the penalty in its executive capacity. There is
no clash between the two powers. The powers of the
Executive do not collide with the powers of the
judiciary. The prerogative of the King or the Pre.
sident can never be in conflict with the judiciary,
executive or legislature. Prerogatives come to aid the
process of justice. Power of pardon is plenary in
nature and unfettered. It could be exercis1Jd at any
·time after the commission of the offence, before indictment, during the trial and after the trio.I.
[Sinha C. J .. ".""'lir·not that power of pe.rdoII--exercised
before the trial ?]
·
Pe.rd.on 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 concerned take a
case like this : A man is convicted 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 convicted for an offence
punishable with death, United Statea v. Wilson, 8
L. Ed. 640 e.t 644, Ex parte W eUa, 15 L. Ed. 421, 423.
v.
Tiu State of
/Jomliay
500
SUPREJ!E COUltT REPOHTS
[l!J61]
A free and uucouditiona.I pardon has the effect of
obli•,era.ting the crime. Section 426(1) empowers the
Court to suspend the sentence or graut bail. The Executive, Judiciary and Legislature, paralysing ea.ch
other novor hi•ppens. United States v. Klein, 20 L. Ed.
519, Ex Parte Grossman, 69 L. Ed. 527.
[SuBBA RAO J .-Your argument assumes that if
the Governor's order wa.s valid
th1~11 the Supremo
Court Rule would not come in. It ma.v not be ueccssarily so because in the present case there was a. conviction and sentenco a.nd the accused has no right of
appeal. The accused invited the order of the Governor.
Entertaiument of the appeal by special lea.vo is in the
discretion of the Supreme Court.
Unless them are
adequate reasons fur the Govemor tu ma.ke this order,
why should WU use our discretion to give exemption to
the accused frotn tho rules of the Court ?]
The sentence having been suspended there is nu
sentence and therefore this Court need not insist on
his surrender.
[Sul!BA RAO J.-The provisions, of Art. 161 did
not say that the pow(·r undN it could he exercised
notwithstanding other provisions of the Constitution.
\Vas it, tberefore, not neeeHsary to hormuuioe this
power with other constitutional provi,ion8 8tH:h
aH
Art. 142 ?]
[KAPUR J.-ln India have the l'cmrtR puwt·r lo
suspend a sent-0nce?]
Yes, in a limited way as j.ll'Ovided ins. 426.
[KAPUR J.-If the sentence is suspended, there is
no sentence.]
);o, there i8 nu sentence to surrender to. The cxccu.
tiun of seutcnc(: is au executive power.
Thn function
of the Court ends with tht> j.1assing uf the sentence. Tu
carry the sentence into execution is an exPcutive ur<ler.
United States v. Benz, 75 L. Ed. 354, 358.
In India we start withs. 401 of the Code of Criminal
Procedure, 1898, and s. 2\J5 Government of India Act,
1935.
_ Pardo11 is a part of the Constitutional
~ehornc,
Balmukand v. King Emperor, L. R. 42 I. A. 133.
1 S.C.R. SUPREME COURT REPORTS
501
Exercise of prerogatives is in the jurisdiction of the
Executive and not the judiciary; Lala Jairam Das v.
King Emperor, L. R. 72 I. A. 120. The powers are in
aid of justice.
[SUBBA RAO J.-Your argument is that one acts in
the judicial fif'ld, while the other acts in the execnt.ive
field and hence there is no conflict. But whatever the
nature of the power, the Governor in exercising· that
power is encroaching on the field occupied by the
Supreme· Court. Under the Constitution the Supreme
Court 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
Governor under Art. 161 has powers to suspend the
sentence.
I am suggesting that where there is a conflict of jurisdiction between the .Judiciary and the·
Executive is it not reasonable to bring harmony between these two? What is wrong in confining the
power of the Governor to cases where there is no
appeal pending before the Supreme Court.? Can the
executive interfere -with the jndiciary in the midst of
a case.?']
Yes, in its administrative capacity it can ask the
Advocate-General to eh ter a nolle prosequi and terminate the trial. This a statutory power. Babu [,,al
Chokhani v. Emperor, [1937] 1 Cal. 464. Court 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 Court Rules
represents a well.settled practice of all courts .but it
cannot affect the power of pardon or the exercise of
prerogatives which is unfettered. The Buie postulates
that there is a sentence to.surrender to.
Under Arts.
72, 161 the President's prerogative is not made subject
to apy parliamentary legislation. There is no limit to
Art.. 72 or Art. 161 in the Constitution express or
implied, Hari Vishnu Kamath v. Syed Ahmad Ishaque,
[1955] 1 S. C. R. 1104. The powers of the Court and
the Executive are distinct and separate. The Executive comes in after the Court has-performed its fimction.
I{. M. Nana.vati
v.
The Slate of
Bonibay
502
SUPRE:ME COURT REPORTS
[1961]
[KAPUR J.-You are talking about Sllspension of
K. M. ~·••avati the imntencf' but. can the Supreme Collrt suspend the
v.
sentence? We can grant bail but can we suspend the
Th• State o/
sentence?
Bombar
Yes, the Supreme Court has the power to st.a.y the
execution of sentence.]
[KAPUR .J.-Is the condition imposed upon Commander Nana.vs.ti illegal?]
No, nobody has said so.
The Court can say judicially that justice requires
that a convicted person should remain in jail bl!t the
President can say on considerations of mercy that he
should be set at libert.y, King v. S.S. Singh, l.L.R.
32 Pat. 243. Power of preroga tivtt is far wider than
the judicial powers of the Court. The exprnssion "at
any time" in s. 401, Code of Criminal Procedure, recognises this principle.
[GAJENDRAGADKAR J.-Ca.n the naval authorities
keep the petitioner in nave.I custody?
Is it legal ?]
The naval authorities made no such request. The
Governor ordered him to be kept in 1.1a.va.l custody
and th~ no.val authorities did not object. There is
nothing illegal a.bout it.
It was perfectly lega.1. The
validity of the Governor's order has not been referred
to 'this constitutional bench of the Court. There is a.
distinction between illegal e.nd unlawful. Illege.1 is
that which the law directly forbids; unlawful is that
which the law does not recognisl'.
[SINHA C. J.-What is unlawful may become lawful by consent but wha.t is illega.1 cannot become legal
even by consent.]
The Governor's order should not be held to be
illegal without a.ny complaint to that effect from the
parties concerned aud in their absence.
When the
na.vy accepted the Governor's order it could be presumed that there was a usage, s. 3(3)(12), Navy Act.
There is no section in the Navy Act which prohibits
such custody.
[GAJENDBAGADKAR J.-Is this the position DOW
that the Provost Marsha.II is keeping the petitioner in
1 S.C.R. SUPREME COURT REPORTS
50~
his custody without any express provision of the Navy
Act?]
Section 14 of the Navy Act. There is .a i;lifference
between a private person and a baval officer being
detained in naval custody. Commander Nanavati
is still in naval service. He cannot leave the naval
service.
[SUBBA RAO J.-There are t\Vo ways of reconciling
the powers of the Governor under Art. 161 and those
of the Supreme Court under Arts. 142; 144, 145. One
way was to say that the Supreme Court had no power
when the Executive exercised its powers. The other
way was to say that while both had powers, so far as
pardon and remission were concerned the Executive
had the exclusive power, but as far a.s suspension was
concerned, when proceedings were pending in the
Supreme Court the Executive could not make an order
impinging upon the Supreme Court's power.]
But in the interest of jnstice the Supreme Court
can pass. any suitable order. The power of the Supreme Court under Art. 141 is a power generally exercisable in all cases but the Governor's'· power is a
special power. If there is a conflict between a General
power. and a special power the. special powe~7 sJ10uld
fl
p~eva1l although I don't admit that th~. !S a con.
wt.
H. N. Sanyal, Additional Solicitor.General of India,
S. M. Sikri, Advocate-General for the State of Punjab and
T. M. Sen, for the Attorney.General of India. There
is no conflict at all. The power of the Supreme Court
is a judicial power ; the power of the Governor-is an
executive power. They cannot collide at au:--The
Su~eme Court can certainly exercise its power but
let it not disregard the power of the executive. Let
both the powers be harmonised.
0. B. Agarwala (Amicus Curiae)7 The Supreme
Court is a Court of record under Art 129 and has the
constitutional privilege of prescribing its procedure
under which it will exercise its discretion ve.sted in it
under the Constitution. By Art: 145 the Supreme
65
r~6o
1<. M. N anavati
v.
Th• 51•1• of
Bombay
504
SUPHEl\lE COUHT REPORTS
[I 961]
'96°
Court has the constitutional power to lay d9wn rules
imposing conditions under which alone it would enterK. M. ;\°(1,,n;·a/1
I
v.
tain a. special eave petition.
The s:"'' of
The ma.teria.1 rule is made under the constitutional
Bombay
right given to the Supreme Court a.s a Court of Record
a.nd not under a. la.w made under Art. 245. Subordinate legislation presupposes a. rule ma.de under la.ws
enacted under Art. 245.
I ts analogy cannot be
applied to rules under Art. 145. The fa.ct tha.t the rules
ma.de by the Supreme Court under Art. 145 require
the approval of the President cannot convert the
rules into a law made under Art. 245.
The rule in question made by the Supreme Court
requires that the special leave petition is subject to
the condition tha.t the petitioner surrenders to the
authority of the Supreme Court, and by passing the
order in question the Governor has deprived the
Supreme Court of its authority over the custody of the
accused pending the special leave !Jetition. Artkle
161 read with Art. 154 shows tha.t the Governor even
while exercising his constitutional powers ca.1111ot
affect, modify or override the powers of the Supreme
Court or the procedure prescribed by it.
After a special leave petition is ma.de to it or when
the appeal is admitted, the Supreme Court ha.s ample
jurisdiction to give relief by way of suspension of
sentence under Art. I 41 a.nd the rules. Power of suspension of sentence is not exercisable by the Executive
when relief ca.n be granted by the trial Court or a.
competent Court of appeal.
The a.ppropria.t1> construction of the rule would
indicate that the Governor's powers under Art. 161
operate only up to the stage when an application for
special leave is ma.de under Art. 136 and cartnot
interfere with the authority of the Supreme Court
thereafter.
As~uruing. without admitting, that the Governor
could interfere with t.he authority and jurisdiction of
the Supreme Court ho could du so only if a valid order
wa.s made under Art. 161. The order !lllder consideration being subject to a.n illegal condiLion is an illegal
order. Even if, the condition i~ not illega.1 it has been
)
l S.C.R. SUPREME COURT REPORTS
505
operated only by the petitioner's voluntary consent
with the object of not complying with the rule of the
Supreme Court. The Supreme Court will decline to
exercise its discretion in favour of the petitioner who
by his voluntary act put himself out of its jurisdic.
tion.
Under Art. 144 the Governor's 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 Governor's order to enable him to comply
with the procedure of the Supreme Court.
[KAPUR J.-Has the Court power to suspend a
sentence ? Has any court ever done so ? Has any
court ever ordered that the sentence will take effect
.after a certain period of time ?]
The appellate Court 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) Ltd., [1953] S.C.R. 1069.
[SINHA C. J.-The argument of the petitioner is
that there is no sentence in operation and therefore
there is nothing to surrender to.]
There is apparently a conflict. The Court says the
petitioner must surrender to his sentence. The Executive says that he need not surrender and will remairi
in some other custody. The Governor has extended
the period of suspension till the decision of the petitioner's appeal in this Court. There is clash with the
rule of this Court.
[SINHA C. J.-If the Supreme Court refused bail
""
can the cxecuti ve suspend the sentence ?]
No, it.cannot, 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 tho
sentence is inflicted.
H. ilJ.. Seervai in reply. Nothing in Arts. 142, 145
and ss. 411, 426, Code of Criminal Procedure, will
K. M. Nanavati
v.
The Stat~ of
Bonibay
506
SUPTIE'.IIE cor.;JtT REPORTS
[1961]
19 "'
supersede the powers of the Go\·e1·nor to grant reprieve, etc. The Code pf Criminal Procedure gives
I<. ·'1· ~\'"""'·a1i tbe pown of suspension, of bail, etc.
The State nj
[KAPUR J.-Did the Federal Court have power lo
suspend a. sentence.]
YeR, it had t.he power to grant bail or slay execution of sentence. The power of the Cu11rt to suspend
is not a.bsolute.
[Sr:>HA C. J .-The Executive is bound to eXLCUte
t.he orders of the Court.]
Y1•s, but if the Government, after the paRsing of
the Court's order, itHelf in i:s own jurisdiction passes
an order suspending the sentence the Executive in
that case has no authorit.y to execute the order of the
Court, United Stales v. Benz, i5 L. Ed. 354, Ila.Jes
Plea.s of the "Crnwn,-lfoprieves bt>fore or after the
judgment, p. 412, Ror;ers \'. Peck, 50 L. Ed. 256Reprieve being granted when a mutter wa.s before the
Court.
1960. September 5. The Judgment of Sinha, C .• J.,
Ga.jendraga.clka.r, Subba. Hao a.nd Wa.nehoo, ,J,J., was
delivered by Sinha. C. J.
Kapur, ,J., delivered a
separate ,Judgment.
Srnh• c. }.
SINHA C. ,J.-This mattt•r has uec·11 pla.ce<l before•
the Constitution Bench in rather extrnordinary circumsta.ncPs, a.8 will prc"eut.ly :ippear.
It involve8 the
question as to what is tho content of the power conferred on the Gornrnor of a. State under Art. 161 of
the Constitution; and whet.her the order of the
Governor of llombn.y da.tPd :\'larch 11, 1960, impinges
on thti judicial powPrs of this Court., with pn,rticiilar
mforence to its powerH uudt•r Art. 142 of the Constitution.
•
For the determina.tiou of tho constitutional issue
raised in this case, it i• 110t necessary to go into the
merits of the case against the petitioner. 1 t is only
necessary to state tho following facts in order to
appreciate the factual backgrouud of the ordi<r of the
GovenH,r of Bombay aforesaid impugned in this co.se.
The petitioner was Second in Comma.nd of I. N. S.
Mysore, whioh ca.me lo Bombay in the beginning of
l S.C.R. SUPREME COURT REPORTS
507
March 1959. On April 27, 1959, the petitioner was
arrested in connection vith a charge of murder under
s. 302 of the Indian Penll.l Code.
He was produced
before the Addit,ional Chief Presidency Magistrate,
Greater Bombay, in connection with that charge. on
April 28, 1959.
The Magistrate remanded him to
police custody on that day. On the following day
(April 29, 1959) the Magistrate received a letter from
the Flag Officer, Bombay, to the effect that he was
ready and willing to take the accused in naval custody
as defined in s. 3(12) of the Navy Act, 1957, in which
custody he would continue to be detained ·under the
orders of the Na val Provost Marshall in exercise of
his authority under s. 89(2) and (3) of the Navy .Act.
Thereupon the Magistrate made the order directing
that the accused should be detained in the Nav·al Jail
and Detention Quarters in Born bay. The Magislmte
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 b<·fore
the Sessions Judge, Greater Bombay. The trial was
by a jury. The jury returned a verdict of 'not guilty'
by a majority of eight to one. The learned Sessions
Judge ma.de a reference to the High Court uHder
s. 307 of the Criminal Procedure Code, disagreeing
with the verdict of the jury; The reference, bdng
Cr. Ref. No. 159 of 1959, was heard by a Division
. Bench of the Bombay High· Court. The High Court
accepted the reference and convicted the petitioner
under s. 302 of the Indian Penal Code and sentenced
him to imprisonment for life, by its judgment and
order dated March 11, 1960. On the same dav, the
Governor of Bombay passed the following order":-
" In exercise of the powers conferred on me by
Article 161 of the Constitution of India, I, Shri Pra.
kasa, Governor of Bombay, am pleased hereby to
suspend the sentence passed by the High Court of
Bombay on Commander K. M. Nanavati in Sessions
Case No. 22 of IV th Sessions of 1.959 un ti! the appeal
intended to be filed by him in the Supreme Court
against his conviction anct'Sentence is disposed of and
K. jYf, 1'la11avati
v.
The State of
Bombay
Sinha C. J.
ry6r,
,.,
508
SCPRE:\IE COCRT REPORTS
[1961)
subj<'ct m<;a.nwhile to the conditions that he shall
Lo detained in the Naval Jail Custody in I. N. S.
Kunjali ".
In pur8uance of the judgment of the High Court, a
writ iS!!ued to the Sessions Judge, Groater Bombay,
communicating the order of the High Court convicting and sentencing the petitioner as aforesaid.
The
Sessions Judge issued a. warrant for t.he arrPst of tho
accused and sent it to th<> police officer in charge of
the Citv Sessions Court for Greater Bombay for execution.· :rhe warrant was returned unse~ved with
the report that the warrant could not be served in
view oft he order set out above passed by the Governor
of Bombay suspending the seutnnce up·Jn the petitioner.
The Sessions Judge then returned the writ togethor with the uuexecuted warrant l'l the High
Court.
In the meantime an application for leave to appeal
to the Supreme Court was made soon after the judgm(•.nt was pronounced by •the High Court a.nd the
matter was fixed for hearing on :11arch 14, 1960.
On
that day the matter of the unexecutrcl warrant was
pla,ced before the Division Bench_ which directed that,
in view of the unusual and u.nprecodented situation
ariaing out of the order of the Governor the matter
should be reforred to a. Jargor Bench. Notice 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
premitted two Advocates, Mr. Kotwa.l a.nd Mr. Pra.njpe, to appear on behalf of the Western India. Advoca.teo' Association. Similarly, Mr. Peerbhoy was also
permitted to appear along with Mr. Latifi on behalf
of the Bombay Bar Association. They were heard as
amfru.s cu.riae in view of the fact tha,t the Advocate
General for the State of Bombay and the counsel for
accused wore both sailing in the same boat, tha.L is to
88.)', both of them were appearing to support the order
made by the Governor. In view of tho great importance of the issues involved, the Court allowed those
Advocates to represent the other ·view point. The
Ad'.:ocale General of Bombay as also counsel for the
1 S.C.R. SUPREME COUR.T REPORTS
509
accused made objections to the Court hearing the
Advocates aforesaid on the ground that they had no
locus standi. The Advocate General of Bombay also
Taised a preliminary objection to the hearing of the
matter by the Special Bench on the ground that it
had no jurisdiction . to examine the validity of the
action taken by the Governor, because there was
no judicial proceeding then pending. The criminal
reference aforesaid, to which the State and the accused were parties, had already been disposed of and
none of those parties had raised any grievance or
objection to the order of the Governor impugned before
the Court. The Court overruled that objection in view
of the fact that the writ issued by the Court had been
returned unexecuted on grounds which could be examined-by the Court as to the validity of the reasons
for the return of the warrant unexecuted. The High
Court then examined the validity of the action taken
by the Governor and came to the conclusion that it
had the power to examine the extent of the Governor's
power under Art, 161 of the Constitution 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 conclusion
that the order passed by the Governor was not invalid. It also held that the condition of the suspension of the order that the petitioner .be detained in
naval custody was also not unconstitutional, oven
though the accused could not have been detained in
Naval Jail under the provisions of the Navy Act,
after he had been convicted by the High Court. The
Court also held negativing the contention raised on
behalf of the Advocates appearing as amicus curiae,
that the order of the Governor did not affect the
power of the Supreme Court with particular reference
to r. 5 of 0. XXI of the Rules of the Supreme Court,
which will be set out in full hereinafter. The reason
for this conclusion, in the words of the High Court,
is:-
" As the sentence passed upon the accused has
been suspended, it is not necessary for the accused to
surrender to his sentence. Order XXI, r. 5, of the
z960
J(. }/f! lVa.navati
v.
The State of
Bon1b<!Y
Sinha C. ].
/(. ,\f_ ,VaJ1avati
v.
5111/i(l c. J.
510
SUPRE'.lfE COCRT HEPORTS
[19Gl]
Supreme Court Rules will not, therefore, ltpply in this
case."
The High Court also overruled the plea of mala fides.
In lhe result, tho High Court held that e.s the order
roe.de 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 ha.cl been disposed of, unless the
order ma.de by the Govnnor stands cancelled or withdrawn before that event.
The petitioner filed his petition for specie.I leave in
this Court on April 20, 1960, and also mu.de e.n application on April 21, 1960, under 0. XLV, rr. 2 and 5 of the
Supreme Court Rules for exemption from compliance
with 0. XXI, r. 5, of those Rules. It was stated in the
petition that, soon after his arrest, the peritioner
throughout the trial before the Sessions Court and the .
hearing of the reference in the High Court, had been
in naval custody and continued to be in that custody,
that he had been throughout of good behaviour and
was ready and willing to obey any order of this Court.,
but that the petitioner " not being a free man it was
not possible for him to comply with the requirements
of r. 5 of 0. XXI of the Supreme Court Rules ...... ".
He, therefore, prayed that he may be exempted from
compliance with the aforesaid rule and that his pet.ition for specie.I leave tu appeal be posted for hearing
without his surrendering to his sentence. On April 25,
1960, the special leave petition e.hlllg with the application for exemption aforesaid was placed before a
Division Bench which pe.l!Sed the following order :-
""This is a petition for special leave against the
order passed by the Bombay High Court on reforencP,
convicting the petitioner under s. 302 of the Indian
Penal Code and sentencing him to imprisonment for
life.
Afoug with hiR petition for special leave a.n
application has been filed by the pet,itioner praying
that he may be exempted from surrendering under 0.
XXI, r. 5, of the Rules of this Court.
His contention
in this e.ppliration 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 Governor of Bombay
1 S.C.R. SUPREME COURT REPORTS
511
1960
under Art. 161 of the Constitution he is not 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 complying with the relevant rule of
this Court. This plea immediately raises an important
constitutional question about the scope and extent of
the powers conferred on the Governor under Art. 161
of the Constitution and that is a constitutional matter
which has to be heard by a Constitution Bench of this
Court. We would accordingly direct that notice 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 course, in
consultation with. the parties concerned, when this
applic~tion should be placed for hearing before the
Constitution. Bench ".
K. A-1. Nanavati
v.
After the aforesaid order of this Court, 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 bad been indicated in the judgment of
the Special Bench of the Bombay High Court to the
effect that r .. 5 of 0. XXI of the Rules would not
apply to his case in view of the Governor's order
aforesaid and that, therefore, his special leave petition
be directed to be listed for admission. It is apparent
that this change in the petitioner's position as regards
the necessity for surrender is clearly an a1'terthought._
Certainly, it came after the Division Bench had directed the constitutional matter to be heard as a preliminary question.
That is how the matter has come 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 Governor's order in order to present himself in this
66
The State of
Bombay
Sinha C. ].
1y6v
/(, lv/. ,\'<111atati
v.
The State of
11aii;ba ;·
Si11'1a C. ].
512
fllJPREJ\IE COURT REPORTS
[1961]
Court so that t.he hearing of his special leave petition
might proceed in the ordinary course,. but ho was not
in a position to make a categorical answer and preferred to have the constitutional question determined on
its merits.
We had the assistance of l\fr. C. B. Aggarwaln, who very properly volunteered his services as
amicus curiae to rnpresent the other ·view point. In
this Court also the sit'uation was the same as iu the
High Court, uamely, that unless there was an amicus
curiae to represent the opposite view point, the parties
represented before u~ were not contesting the validity
of the Governbr's order.
Both here and in the High
Court, it was at the instance of the Court itself that
the matter has been placed for hearing on the preliminary question before dealing witb the meritR of the
petitioner's ci;,se.
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 unfettt>red; that it is to be
exercised not as a matter of course, but in special circumstances requiring the interventio11 of the Head of
the Executive; that tho pow!'r could be exercised at
any time aftrr the commission of an offence; that .. tLis
power being in tho nature of exercise of sovert>ign
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 exercis!'d uncouditionally or
subject to certain conditions to be imposed by tho
authority exerciRing the power; that such conditions
should not b•3 iHegal or impossible of performance or
against public policy.
1t was further argu!'d that the
power of pardon is vested in the Head of tho State as
an index of sovereign authority irrespective of the
form of Govemment. Thus the President of the United States of America and Governors of States, besides,
in some cases Committees, ho.vo been vested with thoso
powers, which cannot be derogated from h)' a Legislature. So far as India is concerned, before the Constitution ca.me into effect such powers have been regulated by statu!A', of course, subject to the power of the
l S.C.R. SUPREME COURT REPORTS
513
Crown itself. After the Constitution, the power is
contained in Art. 72 in respect 0of the President, and
Art. 161 in respect of the Governor of a State. Articles 72 and 161 are without any words of limitation,
unlike the power of the Slipreme Court contained in
Arts. 136, 142, 145 and other Articles of the Constitution. Hence, what was. once a prerogative of the·
Crown has now crystallized into the common law of
England and statute in India, for example, s. 401.· of
the Code of Criminal Procedure, or Arts. 72 and 161 of
the Constitution. He particularly emphasised tba,t
the two powers, namely, the power of the Executive j,o
grant pardon, iri its comprehensive sense, and of the
Judiciary are completely apart and separate and there
cannot be any question of a conflict between th<'m;
because they are essentially different, the one from :,h.,
other. The power of pardon is essentially an executiva
action. It is exercised in aid of justice and not in defi.
ance of it. With reference to the particular question,
now before us, namely, how far the exercise of the execulive power of pardon contained in those two Articles
of the. Constitution can be said to impinge on the
judicial functions of this Court, it was argued that
r. 5 of 0. XX! of the Rules of this Cour.t postulates
the existence of a sentence of imprisonment and, as in
. this case, as a result of the Governor's order, there is
no such selltence r.unning there could not be any question· of the one trespassing into the field of the . other.
Rule 5 aforesaid.· of.•. this Court represents the · well.
settled practice of this Court, as ()f other Courts, that
.a person convicted and sentenced tq .. a term of im prisonment should uot be permitted· to be fo: cqntempt of
the order of this Court, tha\ is to say, shoold:··not be
permitted to move the appellate court without":SUr,
!endering to the sentence.
But the petitioner i~ nbt
m such contempt, because r. 5 did not apply to him.
The order of sentence ag~in,,t him having been suspu1.ded, he is not disobeying any rule or process of
th is Court or of the High Court. The power of the
Supreme Court to make rulec :s subject to two limita-
. tions, namely, (I) to any law made by Parliament_ and
(2) t.hu approval of the President. On the other hand,
z960
K. M. Nanavali
v.
The Stal• of
Bombay
Sinha C, j.
1960
K. M. /\1anauati
v.
TM State of
Rombaj•
Sinha C. ] .
514
SUPltE:ME COURT REPORTS
[1961]
Arts. 72 a.nd 161 enshrine tho plena.ry powers of the
sovereign State to gra.nt pa.rdon etc., a.nd are not subject to any limitations. There could, therefore, be no
conflict between these two, and if there were any conflict a.t a.II, the limited powers of the Court must yield
to the unlimited powers of the Executive. As regards
the condition imposed by the Governor, subject. to
which the sentence pa.ssed against the petitioner ha.d
been suspended, the condition was not illegal, because
it did not offend against any peremptory or mandatory
provisions of law. It is not the same thing to say
that the condition was not authorised by law as to
say that the condition was illegal, in the sense that
it did what was forbidden by law.
We were referred
to the various prnvisions of the Indian Navy Act (Act
LXII of 1957) to show that there were no provisions
which could be said to have been contravened by the
condition attached to the order of suspension by the
Governor. Furthermore, the naval custody in which
the petitioner continues ha.d been submitted to by tho
petitioner and what has been consented to cannot be
illegal, though it may not have been authorised by
law.
Lastly, it was contended that the observation
of the High Court in the last paragraph of its judgment was entirely uncalled for, because once it is held,
· as wa.s held by tho High Court, that the Governor's
order wa.s not unconstitutional, it was not open to the
High Court to ma.ke observations which would suggest
that the Governor had exercised his power improperly. If the exercise of the power by the Governor
is not subject to any conditions, and is not justiciable,
it wa.s not within tho power of the High Court even
to suggest that the Governor should not have passed
the order in queBtion.
The lea.med Additional Solicitor General adopted the able arguments of the Ad vocate General and added that, in terms, there was no
conflict between Arts. 142 and 161 of the Constitution.
Mr. C. B. Aggarwala, to whom the Court is obliged
for his able asAistancc to tho Court, argued that the
exercise of the rule ma.king power by the Supreme
Court is not a mere statutory power, but is a constitutional privilege; that the Supreme Court alone could
"' '
~:
l S.C.R.