(1.)This matter has been placed before the Constitution Bench in rather extraordinary circumstances, as will presently appear. It involves the question as to what is the content of the power conferred on the Governor of a State under Art. 161 of the Constitution; and whether the order of the Governor ;of Bombay dated March 11, 1960, impinges on the judicial powers of this Court, with particular reference to its powers under Art. 142 of the Constitution.
(2.)For the determination of the constitutional issue raised in this case, it is not necessary to go into the merits of the case against the petitioner. It is only necessary to state the following facts in order to appreciate the factual background of the order of the Governor of Bombay aforesaid impugned in this case. The petitioner was Second in Command of I.N.S. Mysore which came to Bombay in the beginning of March 1959. On April 27, 1959, the petitioner was arrested in connection with a charge of murder under S. 302 of the Indian Penal Code. He was produced before the Additional Chief Presidency Magistrate, Greater Bombay, in connection with that charge on April 28, 1959. The Magistrate remanded him to police custody on that day. On the following day (April 29, 1959) the Magistrate received a letter from the Flag Officer, Bombay, to the effect that he was ready and willing to take the accused in naval custody as defined in S. 3 (12) of the Navy Act, 1957, in which custody he would continue to be detained under the orders of the Naval Provost Marshall in exercise of his authority under S. 89 (2) and (3) of the Navy Act. Thereupon the Magistrate made the order directing that the accused should be detained in the Naval Jail and Detention quarters in Bombay. The Magistrate has observed in his order that he had been moved under the instructions of the Government of India. The petitioner continued to remain in naval custody all along. In due course, he was placed on trial before the Sessions Judge, Greater Bombay. The trial was by a jury. The jury returned a verdict of 'not guilty' by a majority of eight to one. The learned Sessions Judge made a reference to the High Court under S. 307 of the Criminal Procedure Code, disagreeing with the verdict of the jury. The reference, being Cr. Ref. No. 159 of 1959, was heard by a Division Bench of the Bombay High Court. The High Court accepted the reference and convicted the petitioner under S. 302 of the Indian Penal Code and sentenced him to imprisonment for life, by its judgment and order dated March 11, 1960. On the same day, the Governor of Bombay passed the following order:-
"In exercise of the powers conferred on me by Article 161 of the Constitution of India, I, Shri Prakasa, Governor of Bombay, am pleased hereby to suspend the sentence passed by the High Court of Bombay on Commander K. M. Nanavati in Sessions Case No. 22 of IVth Sessions of 1959 until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence is disposed of and subject meanwhile to the conditions that he shall be detained in the Naval Jail Custody in I.N.S. Kunjali".
(3.)In pursuance of the judgment of the High Court, a writ issued to the Sessions Judge, Greater Bombay, communicating the order of the High Court convicting and sentencing the petitioner as aforesaid. The Sessions Judge issued a warrant for the arrest of the accused and sent it to the police officer in charge of the City Sessions Court for Greater Bombay for execution. The warrant was returned unserved with the report that the warrant could not be served in view of the order set out above passed by the Governor of Bombay suspending the sentence upon the petitioner. The Sessions Judge then returned the writ together with the unexecuted warrant to the High Court.