LexK. M. NANAVATI versus THE STATE OF BOMBAY
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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. GAJENDltA-
GADKAlt, 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 Gover-
nor o(Bombay passed an order under Art. '161 of the Constitu-
tion 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 c011-
clusion 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 pray-
ing 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 suspen-
sion 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 petitio-
ner 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 opera-
tion and the mattExcerpt shown. Read the full judgment & AI analysis in Lexace.