The heinousness of a crime is not extraneous to the grant of pardon or premature release. The President and Governor have the widest amplitude of power to grant pardon or premature release and that this power cannot be cabined or cribbed by any precise, clearly defined, and sufficiently channelised guidelines.

JAWAHARLAL GUPTA, J.

1. Is heinousness of crime wholly extraneous to the grant of pardon premature release? A learned single Judge in Mithu Singh, V/s. State of Punjab 1989 (1) Ree. Cri R 238 has taken the view that "the heinousness or gravity of the offence is no legal ground to discriminate the case of one accused with the cases of other accused...... This view appears to have been reiterated in later decisions viz., Dalbir Singh V/s. State of Haryana 1989 (2) All Cri LR 290 and in Sehaj Ram V/s. State of Haryana 1990 (2) Chand Cri C 99. Sekhon; J. has expressed reservation about the view taken in Mithu Singhs case. On a reference this matter has come up before us.

2. Mr. Vijay Jindal, learned counsel for the petitioner has vehemently contended that heinousness or gravity of the offence is a matter which is considered by the Court while awarding punishment. It is not relevant to the question of premature release of the convict. He has further contended that the State Government having issued instructions vide letter dated 12/12/1985 (Annexure P. 2), the mercy petitions had to be examined only in accordance with the instructions. Heinousness of the offence is not one of the factors mentioned in the letter and cannot thus be taken into consideration. On the other hand, Mr. O. P. Goyal, learned Additional Advocate General appearing on behalf of the respondents has contended that the Constitution confers very wide powers on the Executive Head of the State and no impediments can be placed thereon. He further contends that the various factors mentioned in the instructions issued by the Government from time to time are only illustrative and not exhaustive of the grounds which can be taken into consideration while deciding the case for premature release.

3. A word about the necessity and nature of the power to pardon. It has been recognised since the hoary past. In the words of Chief Justice Marshal this power had been exercised from time immemorial by the Executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance .........." In the words of Chief Justice Taft in Philip Grossmans case (69 L. Ed. 527)

"Executive elemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the Courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the Executive for special cases, To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it."

(Emphasis supplied)

4 As in America, so under our own Constitution, the power of clemency has been conferred by the Constitution on the President of India and the Governors of states. The relevant provisions occur in Arts. 72 and 161 of the Constitution. The scope of these provisions has been considered by various Courts. The provisions fell for pointed consideration in Nanawatis case before a Full Bench of the Bombay High Court and later on before the Apex Court in AIR 1961 SC 112 In the year 1978 when the Parliament enacted and added S. 433-A of the Criminal P.C. the Supreme Court considered the matter in Maru Rams case AIR 1980 SC 2147 After a review of the case law, a Constitution Bench in the words of Krishna lyer, J. observed as under

"Para 59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar but not the same.