HIGH COURT OF KERALA
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(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. 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 Sovereignity 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. It was as an attribute of sovereignity 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 sovereignity 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 Sovereignity continues to vest in the members of the Princely Order.;
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