STATE OF MAHARASHTRA Vs. KAWAS MANEKSHAW NANAVATI

JUDGEMENT

(1.) In Criminal Reference No. 159 of 1959, which was made to this Court under Section 307 Cr. P. C. by the Sessions Judge, Greater Bombay, a Division Bench of this Court, consisting of Shelat and Naik, JJ. found the accused commander K. M. Nanavati guilty of the offence of murder and sentenced him to imprisonment for life. The accused was then in naval custody and the Court directed that a warrant for his arrest should issue. This decision was gien of Friday, 11th March 1960. An application for leave to appeal to the Supreme Court was made soon after the judgment was pronounced. This ws fixed for hearing on the following Monday, 14th March. A writ comminicating the order of this Court was sent to the Sessions Judge, Greater Bombay, who issued a warrant for the arrest of the accusede and sent it to the police officer in charge of the City Sessions Court for Greater Bombay for execution. The warrant was returned unserved by the police officer with a report, in which he stated that he had been supplied with a copy of an order passed by the Governor of Bombay under Article 161 of the Constitution of India, suspending the sentence passed by this Court. The Sessions Judge then returned the writ together with the unexecuted warrant to this Court. The papers were placed before the Division Bench on 14th March 1960, which directed that in view of the unusual and unprecedented situtation created by the order of the Governor the matter should be referred to larger Bench. Notice was then issued to the State and to the accused and this Full Bench was constituted to consider the matter.

(2.) When the matter came up for hearing, Mr. Kotwal on behalf of the Western India Advocates' Association asked for permission to apper in the case long with Mr. Paranjpe. This was objected to by the Advocat General and the counsel for the accused. As, however, both of them were appearing in order to support the order made by the Governor and as the issues involved are of considerable importance, we allowed Mr. otwal to appear in order that the other point of view may also be placed before us. Subsequently, on a request made by Mr. Peerbhoy, we permitted him to appear along with Mr. Latiff on behalf of the Bombay Bar Association. We must express our appreciationand the Bombay Bar Association in appearing in this proceeding. We thank the Advocate General, Mr. Kotwal and Mr. Peerbhoy for the assistanc, which we have received from them.

(3.) The principal question, which we have to determine, is whether there is a proper return to the writ issued by this Court, that is, whether the warrant for the arrest of the accused has not been executed for good and valid reasons. For this purpose it is necessary to decide whether the action takoen by the Governor is within the law. We therefore informed the Advicate General and the other counsel that the two main questions, which arose for our consideration, were, (1) whether the order issued by the Governor is legal and constitutional, and (2) if not, how the writ issued by this Court can be made effective. The Advocate General raised a preliminary objection that we had no jurisdiction to examine the validity of the action taken by the Governor, because there is no judicial proceeding pending, in which we can decide this question. The parties to the Criminal Reference No. 159 of 1959 were the State on one side and the accued on the other. Both of them are satisfied with the Governor's order. The Advocate General, therefore, contended that there are no parties, between whom any question has arisen, which can be judicially decided by this Court. He referred to a passage at page 91 of Willis on Constitutional Law, 1936 edition, in which it is stated that anyone whose rights are injur4iously affected, and no one else, may raise questions of constitutionality of a statute. He alsourged that the Court had become functus officio, as soon as it had pronounced judgment in the above Criminal Reference. Al that remaned thereafter was to carry out the order of the Court. Ths was n executive function, see Mathammal Saraswathi v. State of Kerala, AIR 1957 Kerala 102. The Advocate General also referred to Emperor v.Nazir Ahmad, 71 Ind App 203: (AIR 1945 PC 18), in which it was held that the functions of a Court begin when a charge is preferred before it and not until then and that under Section 561A the High Court has no power to interfere with the invesigation of a crime and to quash the investigation proceedings. Consequently the Advocate General argued that there is no judicial proceeding, in which we can consider the question whether the order isued by the Governor is legal.