Sessions Case No. lO of 1954 by the Sessions Judge of Trichur v. Tiu S1a11 of T rauancor4-Cochin

special leave and arises under somewhat unusual circum stances. The appellant was convicted of murder Sessions Case No. lO of 1954 by the Sessions Judge of Trichur now in the State of Travancore-Cochin and sentenced to death. The sentence was in due course confirmed by the High Court and an application for it to this Court was rejected. leave to appeal against the Raj The appellant Pramukh of Travancore-Cochin and to the President rejected. After all of India and both of them were these attempts had failed, issued a warrant on the 29th March, 1955, fixing 6th April, for the execution of the prisoner. Meanwhile, 1955, Jail, Viyyur, where the the Superintendent, Central the Sessions' condemned prisoner was lodged, Judge by his letter dated the 1st April, 1955, prisoner had sent a mercy petition the Maharaja requested for directions, since no orders of Cochin and had been It received may be mentioned the Sessions Division of Trichur the former State of Cochin. is admittedly It does not appear from the record whether this mercy petition to the Maharaja of Cochin was sent before or after the Raj-Pramukh of the President were disposed Travancore-Cochin and of.

On receipt of the letter dated the 1st April, 1955, the Sessions from the Superintendent, Central Judge passed an order case demanded the sentence should not take place on the date already fixed. He accordingly sentence, previously ordered by his warrant dated the 29th March, 1955. At this stage, the Public Pro the Sessions Judge on secutor filed an application to the 30th May, 1955, praying the stay may be vacated warrant may be that a mercy Public Prosecutor fresh directions issued. On raised issued an order staying execution of the execution of to execute that application, the circumstances of the mercy petitions that petition. the question respect of Jail, 1955 TloaioalaHil KwijutJMU fl' amd v. Tiu S1a11 of T rauancor4-Cochin ]agartnadhadas ]. 1024 SUPREME COURT REPORTS [1955] territory pet1t1on to the Maharaja of Cochin, who as such, has forming part of lost sovereignty over the previous Cochin State, and hence also lost his prerogative of pardon, was incompetent and could not stand in the way of the warrant being executed.

The learned Sessions Judge dealt with this question and agreed with the contention of: the Public Prosecu tor. Accordingly, he vacated stay and issued a fresh warrant for execution of the prisoner giving a week's the matter on ap peal to the High Court, if so advised. The prisoner filed an appeal learned Judges of the High Court after consideration of the arguments on both sides agreed with the view taken appeal by the 17th June, 1955. The present appeal is against this order of the High Court. to the High Court and the Judge, and dismissed time to the prisoner learned Sessions judgment dated to take For the hearing of this appeal counsel was assigned relevant to the appellant amicus curiae and all constitutional provisions have and fairly placed before us. Learned counsel appearing for State has also been heard. We are satisfied that question that has been raised does not admit of sub the view taken by both stantial argument and that the Courts below is correct. been fully The entire basis for any argument on behalf of the appellant is the pre-existing undoubted power of Maharaja of Cochin prerogative of to exercise pardon in respect of a sentence of death passed by the courts within his State.

That prerogative right in Article XXI of the Covenant has been affirmed dated the 29th May, 1949, entered into between Rulers of Travancorc and Cochin for the formation of the United State of Travancore and Cochin. The article is in the following terms : anything "Notwithstanding the Rulers of this Covenant, preceding provisions of to have, and Travancore and Cochin shall continue exercise, their present powers of suspension, remission or commutation of death sentences in respect of any person who may have been, or is hereafter, sentenced contained I f ' 191)1) Thaivalappil KUl!furaru Yatud v. Tm Stat, of T ra111111COr,..Co&/iitt Jag1JMadliar/a1 J. 2S.C.R. SUPREME COTJRT REPORTS 1025 that the power for capital offence committed within to death territories of Travancore or Cochin as the case may be". It is only on the assumption cognised in the Maharaja of Cochin, notwithstanding had lost his sovereignty over constituted the State of Cochin has any statable case. -But unfounded having regard Travancore-Cochin with thereafter its absorption when the Constitution of events may briefly be stated. thus re in this article of the Covenant still survives that he territories which the appellant this assumption is clearly to the events which culmi the State of the Dominion of India and India, the Union of India came into operation relevant historical in the accession and integration of the 26th January, 1950.

The time. In August, 1947, Indian States did, at the the Rulers of the States of Tra vancore and Cochin executed separate instruments of accession to the Dominion of India on the same lines as most other In May, 1949, the two States formed into a United State under a Covenant signed by each of the Maharajas, the provisions of which were guaranteed by the Gov ernment of India. It is Article XXI of this Covenant which has already been referred to and which provides for the continuance of the prerogative of the Maha for commutation of death sentences raja of Cochin within his State. Under it was also . provided that the then Ruler of Travancore should be the first Raj Pramukh of the United State of Travan It was specifically provided by Article core-Cochin. IX thereof as follows : this Covenant "The Raj Pramukh shall, within a fortnight of the appointed day, execute on behalf of the United in accordance with State an Instrument of Accession the Government of the provisions of section 6 of India Act, 1935, and in place of the Instruments of Accession of the Covenanting States".

By Article X(4) of the Covenant it was provided "The Legislature of the United State shall, sub ject to the provisions of this Covenant, have full power 1955 T haivalappil Kunjuvaru V arttd v. The State of Travantore-Cochin :Jagannadhadas]. 1026 SUPREME COURT REPORTS [1955] IX, laws for the United State, to make including provi sions as to the Constitution of the United State, with in the framework of this Covenant and the Constitu tion of India". In pursuance of article the Raj Pramukh of Instrument of Acce< Travancore-Cochin executed an >ion dated the 14th July, 1949, which was accepted bv the Governor-General of India on the 15th August, 1949. By article it was declared the Dominion of that the United State acceded the legislative In pursuance of Article X(4) India. resol"ed assembly of the State of Travancore-Cochin the Constituent In cons•:quence Assembly be adopted by thereof the Raj Pramukh of Travancore-Cochin issued a proclamation dated the 24th November, 1949, which runs as follows : the Constitution framed by Instrument the State.

I of this "Whereas with the inauguration of the new Con stitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935, which now governs the constitu this State and the Domi- tional relationship between nion of India. will stand repealed ; ! in the best and whereas, that the constitutional in the economic, political and other interests of the United State of Travancore and Cochin, which closely linked with the rest of India by a community of in terests relationship estab is desirable the Dominion of India, lished between this State and should not only be continued as between this State and the contemplated Union of India further strength ened, and the Constitution of India as drafted by India, which includes duly Constituent Assembly of provides a appointed suitable basis for doing so ; representatives of this State, fields, the Covenant establishing And whereas by virtue of the power vesting in it this State, Legislative Assembly of the State has resolved the Constitution framed by the Constituent Assembly of India be adopted by this State ; I now hereby declare and direct- 2 S.C.R. SUPREME COURT REPORTS 1027 the Constitution of India shortly That adopted by be the Constitution for core and Cochin as for the other parts of shall be enforced as such in accordance with of its provisions : to be the Constituent Assembly of India shal.l the United State of Travan India and 1955 Thaioalappil K utifuoaru Varud v.

Tiu State of T ravancore-Cochin Jagannadhadat ]. the 26th the date of last paragraph in all other constitutional provisions therewith which are at present in force That the provisions of the said Constitution shall its commencement, supersede and abrogate consistent this State". For our present purposes, Proclamation is important. On the coming into force of the Constitution of January, India on the State of Travancore-Cochin became a part 1950, of the Union of India and was one of the Part B States as provided under article 1 clause (2) taken with Part B of the First Schedule. The Constitution specifically provided respect of sentences of death in articles 72, 161 and 238. Article 72 provides for the power of the Presi for the power of the Governor in a dent, article 161 taken with article Part A State, and article 238(1) the power of the Raj Pramukh of a Part B 161 for State. the continu light of these provisions ance of the prerogative of the Maharaja of Cochin the execution of the death sentences with relating reference to the ex-State of Cochin would be incon sistent with the new Constitution.

Such power, 'been superseded and abro fore, must be the Proclamation gated as stated in the last para of above mentioned. that article XXI follow of the Covenant of May, 1949, no longer survives. for the prerogative of mercy It would to have In Article 372 ( 1) of the Constitution has also been lied upon on behalf of the appellant. This follows: runs as repeal referred "Notwithstanding tion of the enactments subject all the law ately before shall continue this Constitu in article 395 but the other provisions of this Constitution, territory of India immedi in force the commencement of this Constitution therein until altered or re- in force in the 1955 Tbai«llaHiJ ,. .. ,;..- v.,...i v. Tile Slllt• qf T fDDont; orf. Cochin ... 1028 SUPREME COURT REPORTS [1955) it is subject this article the difficulty to he noticed argument based on territory, is two-fold. the other provisions of pealed or amended by a competent Legislature or other competent authority".

The law of the ex-Cochin State continued to be criminal in spite of the new Constitution having come in force the exercise of the prerogative by into force and that the Maharaja of Cochin in respect of the ex-State of Cochin was an integral part of that law. Apart from the question whether such prerogative which was cidental to his sovereignty, could survive after he lost his sovereignty over (1) The con the way of this argument tinuance is Constitution ; and (2) The continuance is only until altered or repealed or amended by a competent Legis lature. As already pointed out, the continuance of the prerogative of the Maharaja of Cochin would be inconsistent with articles 72, 161 and 238 of the Con stitution. Further Code of Criminal Procedure (Amendment) Act, 1951, (Central Act I of 1951), passed by the Union Legis lature, the Code of Criminal Procedure, 1898, has been made applicable to the whole of India by amending therein for section 1 of the Code and by substitution the words "whole of India except Part B States'', words "whole of India except Jari:tmu and Kashmir and Manipur".

The Code of Criminal Procedure and along with it sections 401, 402, and to commutation of sentences 402-A thereof, having to all Part B States by Central Act I of 1951, the . preroga tive under the old Cochin in any case be deemed to have been repealed or abrogated by com petent in the force of Courts below the Maharaja's prero gative was concerned the Legislature was incompetent in view of article 362 of the Constitu to abrogate . it It refers only tion. But that article has no bearing. to personal rights, privileges and dignities of Rulers of Indian States. It is obvious even from Covenant, thus been made specifically applicable the Constitution. It was suggested in which article XXI appears, legislative authority after that in so far as the States of the coming law must that by relating 1955 ThaiaalaOllU EwfirwotM V amd v. Th• SIDie of T rav1111&0t1-Cochin ]opullldhad1J1 J. 1955 Decem6'r 2.

2S.C.R. SUPREME COURT REPORTS 1029 thereunder power of pardon is different from "per sonal rights, privileges and dignities" which have been dealt with under articles XVI and XVII in lowing terms. the members of his "XVI. The Ruler of each Covenanting State, family, shall be entitled the personal privileges, dignities and titles en immediately before the 15th day as also to all joyed by them, whether within or outside tories of of August, 1947. the State, XVII. ( 1) The succession, according law and custom to the gaddi of each Covenanting State and the personal rights, privileges, dignities and titles of the Ruler There on which the ca~ for presented. in any of the arguments the appellant can possibly be thereof is hereby guaranteed". thus no substance This appeal is accordingly dismissed. THAKUR PRAT AP SINGH f). SHRI KRISHNA GUPTA AND OTHERS. [S. R. DAs, ACTING C. J., V1v1AN BosE. BHAGWATI, fAGANNADHADAS and B. P. SINHA JJ.] Jilt!ction Dispute-Rule requiring candidate to state occupati-:m in nomination paper-If mandatory in character-Duty of Court Central Provinces and Berar Municipalities Act (II) of 1952, ss.

9(1) (iii) (c), 23. The appellant was a candidate for the office of President of the Municipal Committee, Damoh. The nomination was made in an o\d form under the old rules which required a candidate to enter his caste. Under the new rules this was changed and occupation had to be stated instead, which none except the respondent No. I had done. Objection to the validity of the appellant's nomination paper was overruled by the Supervising Officer. The appellant secured the highest number of votes and was declared elected. The respondent No. 1, thereupon, filed the election petition. He failed in the Elec substantial and tion Tribunal which held that the defect was not reversed this decision in was curable. The High Court, however, revision, holding that failure to comply with any of the provisions set out in the rules was fatal and in such cases the nomination papct should be rejected.