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1955 DIGILAW 79 (KER)

Variath v. State

1955-06-17

KOSHI, KUMARA PILLAI

body1955
Judgment :- 1. This purports to be an appeal against an order of the learned Additional Sessions Judge, Trichur, holding that the powers of suspension, remission or commutation of death sentence in respect of any person who may have been or is thereafter sentenced to death for capital offence committed within the territory of Cochin reserved in the Maharaja of Cochin under Art.21 of the Covenant entered into by the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin (hereinafter referred to as the Covenant) did not outlive the passing of the Constitution of India. In the order impugned before us the learned judge sets out the circumstances under which he happened to make that order as follows: "This Court convicted the accused in S.C. No. 20 of 1954 of murder and sentenced him to death subject to confirmation by the High Court and committed him to safe custody in the Central Jail, Viyyur, until further orders. The High Court upheld the conviction and confirmed the sentence, and the Supreme Court refused to interfere in the matter. Mercy petitions filed by the petitioner before the President of India and the Raj Pramukh of Travancore-Cochin State also met with no success. On 28.3.1955 the Superintendent, Central Jail, Viyyur, addressed this Court for the issue of a warrant fixing the date for execution. On 29.3.1955 this Court issued the necessary warrant fixing the date for execution on 6.4.1955. On 1.4.1955 the Superintendent, Central Jail, Viyyur, wrote to this Court informing it that the prisoner had sent a mercy petition to the Maharaja of Cochin and that no orders had been received on that petition and requesting it to intimate to him as to whether execution had to be stayed pending receipt of orders on the mercy petition. That mercy petition which had been submitted by the prisoner to the Maharaja of Cochin had not been intimated to this Court at any time before. Under the circumstances, this Court felt that immediate action was necessary and that the circumstances of the case demanded that execution should not take place on the date fixed. That mercy petition which had been submitted by the prisoner to the Maharaja of Cochin had not been intimated to this Court at any time before. Under the circumstances, this Court felt that immediate action was necessary and that the circumstances of the case demanded that execution should not take place on the date fixed. Accordingly, it passed an order staying execution of the sentence, Matters were remaining thus when on 30.5.1955, the Public Prosecutor put in the present petition claiming that no mercy petition lay to the Maharaja of Cochin and praying that the order staying execution be vacated". 2. In vacating the order staying execution of the death sentence the learned judge observes: "The Maharaja of Cochin was the sovereign Ruler of Cochin and was exercising pardoning power as a Royal prerogative. This was recognised and guaranteed in Art.21 of the Covenant entered into between the Maharaja of Travancore and Cochin for the formation of the United State of Travancore-Cochin. But the adoption of the Constitution of India by the people of India changed the position. Under the Constitution, the people of India assumed Sovereignty over the entire territory of India. It is not possible to conceive that after the coming into force of the Constitution, any Royal prerogative remained in any person in respect of any area in the territory of India, or that any person had any executive, judicial or legislative authority which the Constitution did not confer on him. The Constitution does not bestow any pardoning power on the Maharaja of Cochin. Art.72 and Art.161 and Art.238, which deal with pardoning power do not allow the Maharaja of Cochin to exercise any such power in respect of any matter. The judicial power of pardon guaranteed to the Maharaja of Cochin under Art.21 of the Covenant entered into between the Maharajas of Travancore and Cochin does not come within the personal rights, privilege and dignities, referred to in Art.362 of the Constitution. This Court is, therefore, of the view that no mercy petition lies before the Maharaja of Cochin. There is, therefore, no reason why the execution of the sentence passed on the prisoner should be postponed. The petition is, therefore, allowed and the order issued by this Court staying execution is vacated". 3. We are in full agreement with this view. This Court is, therefore, of the view that no mercy petition lies before the Maharaja of Cochin. There is, therefore, no reason why the execution of the sentence passed on the prisoner should be postponed. The petition is, therefore, allowed and the order issued by this Court staying execution is vacated". 3. We are in full agreement with this view. It was as an attribute of sovereignty that the Princely Order in India used to exercise the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence, and when the sovereignty no longer vests in the Princely Order but has devolved or has been assumed by the people of India it is idle to think that the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence still inheres in the Princely Order. The Criminal Procedure Codes of Cochin and Travancore expressly provided that nothing contained in the said Codes shall be deemed to interfere with the right of the respective Maharajas to grant pardons, reprieves, or remissions of punishment. Notwithstanding the integration of the two States of Travancore and Cochin Art.21 of the Covenant retained in the Maharaja of Cochin the powers of suspension, remission or commutation of death sentences passed in respect of offences committed in the territory of Cochin, but those powers cannot survive the passing of the Constitution of India, after which no power of Sovereignty continues to vest in the members of the Princely Order. 4. In disposing of a somewhat similar argument that this Court cannot pass or confirm death sentences in cases arising in the Cochin area or that if it passes or confirms such a sentence the Maharaja of Cochin should also confirm it, this Court has observed: "Sovereignty now vests in the people and it is against the spirit and the scheme of the Constitution of India, nay, even anachronistic, to think that a sentence of death passed by a competent Court should have superadded to it the imprimatur of the Executive for its validity or before it could be carried into effect". K.N. Vijayan v. The State AIR 1953 Travancore-Cochin 402 at 408 =1953 K.L.T. 403 at 418. 5. K.N. Vijayan v. The State AIR 1953 Travancore-Cochin 402 at 408 =1953 K.L.T. 403 at 418. 5. It is the same approach we make here in holding that the provisions of Art.21 of the Covenant cannot survive the passing of the Constitution. The decision of this Court in the above case was taken before the Supreme Court by the convict there but the Supreme Court declined to interfere. After the commencement of the Constitution no individual or body or institution in the territory of India can exercise any executive or judicial or legislative power unless the Constitution confers it or countenances its exercise. 6. Mr. K.K. Mathew, who readily acceded at our request to appear in the case as amicus curiae, contended that the Covenant should be treated as "law in force" within the meaning of Art.372 of the Constitution and that as such it will continue in force until altered or repealed or amended by a competent legislature or other competent authority. The question whether the Covenant has the status of law is a moot point and the authority of decided cases would seem to be against treating it as law. Be that as it may, Art.372 of the Constitution so far as relevant only provides that the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force subject to the other provisions of the Constitution. Art.72(1) of the Constitution provides that in the three classes of cases specified in sub-cls. (a), (b) and (c) thereof the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Likewise Art.161 provides that the Governor of a State shall have the power to grant pardons, reprieves or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against law relating to a matter to which the executive power of the State extends. Read with Art.238 the said Article confers on the Raj Pramukh of a State also the powers specified thereunder. The Constitution confers these powers on no other authority or dignitary. Read with Art.238 the said Article confers on the Raj Pramukh of a State also the powers specified thereunder. The Constitution confers these powers on no other authority or dignitary. The Covenant, assuming it is law, can prevail only subject to the provisions of the Constitution, and when the Constitution confers these powers on specified authorities we do not consider it to be proper to construe the powers under Art.21 of the Covenant to survive after the commencement of the Constitution. In this context it will be useful to quote Art.72 in full and point out that in the face of the express reservations made in Cls. (2) and (3) of the Article we do not consider the argument that Art.21 of the Covenant still gives authority to the Maharaja of Cochin to invoke the powers reserved in him by it can be sustained. Art.72 reads: 72 (1) The President shall have the power to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence: (a) in all cases where the punishment or sentence is by a Court Martial; (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) Nothing in Sub-Clause. (a) of Clause. (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. (3) Nothing in Sub-Clause. (c) of Clause. (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or Rajpramukh of a State under any law for the time being in force". Clause. (2) says that sub-Clause. (a) of Clause. (1) shall not affect any power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial, and Clause.(3) says that sub-Clause. (c) of Clause. (1) shall not affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or Raj Pramukh of a State under any law for the time being in force. 7. With reference to Cls. (c) of Clause. (1) shall not affect the power to suspend, remit or commute a sentence of death exercisable by the Governor or Raj Pramukh of a State under any law for the time being in force. 7. With reference to Cls. (2) and (3) of Art.72 of the Constitution Mr. Mathew invited our attention to Art.362 thereto and stated that under the terms of that article due regard should be had to Art.21 of the Covenant. We are afraid the said article has nothing to do with an executive power like the suspension, remission or commutation of a sentence passed by a competent Court, but, concerns itself only with the guarantee or assurance given under such Covenant or agreement as is referred to in Clause.(1) of Art.291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. 8. Before concluding we express our indebtedness to Mr. Mathew for the assistance he rendered to us at our instance and thank him for it. 9. In the result we hold that on principle and in view of the Constitution, the Maharaja of Cochin cannot now, that is, after the commencement of the Constitution, invoke the powers reserved in him under Art.21 of the Covenant. The petition is accordingly dismissed. Dismissed.