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"22. In the present case, the question is limited to the exercise by the Governor of his powers under Article 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this court; and the controversy has narrowed down to whether for the period when this court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this court in exercise of what is ordinarily called "mercy jurisdiction". Such a pardon after the accused person has been convicted by the court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such "mercy jurisdiction". But the suspension of the sentence for the period when this court is in seizin of the case could have been granted by this court itself. If in respect of the same period the Governor also has power to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr Seervai that the words of the Constitution, namely, Article 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument insofar as it postulates what has to be established, namely, that the Governor's power was absolute and not fettered in any way. So long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401. On that interpretation Mr Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign state to grant pardon and the power of the courts to deal with a pending cage judicially."

(emphasis supplied)

27. It was that held that the power to suspend the sentence under Article 161 and Article 142 of the Constitution of India are operating in the same field, and therefore, in order to avoid any conflict, harmonious rule of construction was adopted. It was held that the power under Article 161 of the Constitution of India vested with the Hon'ble Governor is exclusive. However, such power cannot be exercised in criminal matters which are sub judice before the Hon'ble Supreme Court. The relevant observations read thus: -

"24. In this connection it would be relevant to consider what would be the logical consequence if Mr Seervai's argument is accepted. In the present case the Governor's order has been passed even before the petitioner's application for special leave came to be heard by this court; indeed it was passed before the said application was filed and the reason for passing the order is stated to be that the petitioner intended to file an appeal before this court. Let us, however, take a case where an application for special leave has been filed in this court, and on a motion made by the petitioner the court has directed him to be released on bail on executing a personal bond of Rs 10,000 and on furnishing two sureties of like amount. According to Mr Seervai, even if such an order is passed by this court in a criminal matter pending before it, it would be open to the petitioner to move the Governor for suspension of his sentence pending the hearing of his application and appeal before this court and the Governor may, in a proper case, unconditionally suspend the sentence. In other words, Mr Seervai frankly conceded that, even in a pending criminal matter before this court, an order passed by this court may in effect be set aside by the Governor by ordering an unconditional suspension of the sentence imposed on the petitioner concerned. This illustration clearly brings out the nature of the controversy which we are called upon to decide in this case. If Mr Seervai's argument is accepted it would inevitably mean that by exercising his power under Article 161 the Governor can effectively interfere with an order passed in the same matter by this court in exercise of its powers under Article 142. It is obvious that the field on which both the powers are operating is exactly the same. Should the sentence passed against an accused person be suspended during the hearing of an appeal on the ground that an appeal is pending? That is the question raised both before this court and before the Governor. In such a case it would be idle to suggest that the field on which the power of the Governor under Article 161 can be exercised is different from the field on which the power of this court can be exercised under Article 142. The fact that the powers invoked are different in character, one judicial and the other executive, would not change the nature of the field or affect its identity. We have given our anxious consideration to the problem raised for our decision in the present case and we feel no hesitation in taking the view that any possible conflict in exercise of the said two powers can be reasonably and properly avoided by adopting a harmonious Rule of construction. Avoidance of such a possible conflict will incidentally prevent any invasion of the Rule of law which is the very foundation of our Constitution."
"61. It was argued that the power of the court under Articles 142 & 145 and of the Governor under Article 161 are mutually inconsistent and therefore the power of the Governor does not extend to the period the appeal is pending in this court because law does not contemplate that two authorities i.e. executive and judicial should operate in the same field and that it is necessary that this court should put a harmonious construction on them. Article 142 of the Constitution, it was contended, is couched in language of the widest amplitude and comprises powers of suspension of sentences etc. The argument that the power of the executive to suspend the sentence under Article 161 and of the judiciary to suspend the sentence under Article 142 and Article 145 are in conflict ignores the nature of the two powers. No doubt the effect of both is the same but they do not operate in the same field; the two authorities do not act on the same principles and in exercising their powers they do not take the same matters into consideration. The executive exercises the power in derogation of the judicial power. The executive power to pardon including reprieve, suspend or respite a sentence is the exercise of a sovereign or governmental power which is inherent in the State power. It is a power of clemency, of mercy, of grace "benign prerogative" of the highest officer of the State and may be based on policy. It is to be exercised on the ground that public good will be as well or better promoted by suspension as by the execution but it is not judicial process. The exercise of this power lies in the absolute and uncontrolled discretion of the authority in whom it is vested.