Sentence, suspension of-Order by Governor during pendency of appeal in the Supreme Court -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. 161, 142-Supreme Court Rules, Order XXI, r. 5.

The petitioner was Second in Command of I.N.S. Mysore, which came to Bombay in the beginning of March 1959. Soon thereafter, he was arrested on a charge of murder under Section 302 of the Indian Penal Code and was placed, and continued to remain, in naval custody throughout 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 Section 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 of Bombay passed an order under Article 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 naval 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 that it could not be served in view of the order of the Governor suspending the sentence passed upon the petitioner.

In the 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 conclusion 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 passed on the petitioner having been suspended, the provisions of Order XXI, Rule 5 of the Supreme Court Rules did not apply, and it was not necessary 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 for the hearing of his application for special leave without surrendering to his sentence. His plea at first was that as he was not a free man, it was not possible for him to comply with the requirements of Order XXI, Rule 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.