DATE : 04-09-1991 1992-(098)-CRLJ -1772 -P&H

JUDGE(S) : I S Tiwana Jawahar Lal Gupta PUNJAB & HARYANA HIGH COURT

JUDGMENT

JAWAHARLAL GUPTA, J. :- Is heinousness of crime wholly extraneous to the grant of pardon pre-mature release ? A learned single Judge in Mithu Singh, v. State of Punjab 1989 (1) Rec. 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. State of Haryana 1989 (2) All Cri LR 290 and in Sehaj Ram v. State of Haryana 1990 (2) Chand Cri C 99. Sekhon, J. has expressed reservation about the view taken in Mithu Singh’s 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 pre-mature release of the convict. He has further contended that the State Government having issued instructions vide letter dated December 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 which deciding the case for pre-mature 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 bears a close resemblance ……..” In the words of Chief Justice Taft in Philip Grossman’s case (69 L.Ed. 527) –

“Executive clemency 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 powers 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. Out Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.”

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 Nanawati’s case before a Full Bench of the Bombay High Court and later on before the Apex Court in AIR 1961 SC 112 : (1961 (1) Cri LJ 173). 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 Ram’s case AIR 1980 SC 2147 : (1980 Cri LJ 1440). After a review of the case law, a Constitution Bench in the words of Krishna Iyer, J. observed as under (at page 1462 (of Cri LJ) :-

“Para 59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the Constitutional power is ‘untouchable’ and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, S. 433A cannot be invalidated as indirectly violative of Arts. 72 and 161. What the Code gives, it can take, and so, as embargo on Ss. 432 and 433(a) is within the legislative power of Parliament.”

at page 1462

“Para 60. Even so, we must remember the Constitutional status of Arts. 72 and 161 and it is common ground that S. 433-A does not and cannot affect even a wee bit the pardon power of the Governor or the President. The necessary sequel to this logic is that notwithstanding S. 433-A the President and the Governor continue to exercise the power of commutation and release under the aforesaid Articles.”

5. Recently another Constitution Bench of the Apex Court in Kehar Singh v. Union of India, AIR 1989 SC 653 : (1989 Cri LJ 941) inter alia observed as under (at page 949 (of Cri LJ) :

“Learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under Art. 72 this Court should draw up a set of guidelines for regulating the exercise of the power. It seems to us that there is sufficient indication in the terms of Art. 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Art. 72 is of the widest amplitude.”

6. The power is thus of the widest amplitude. Its exercise cannot be cabined or cribbed by “any precise, clearly defined and sufficiently channelised guidelines.” In spite of the widest amplitude of the power, Mr. Jindal contends that the President and the Governor are precluded from taking into consideration the heinousness of the crime. Relying on the view in Mithu Singh’s case, the learned counsel submits that all life convicts from one class and they cannot be treated differently on the basis of heinousness or the gravity of the crime. Both on the basis of principle and precedent, we find no rationale behind the contention. While considering the constitutional validity of S. 433-A of the Criminal P.C. and the scope of Arts. 72 and 161 of the Constitution of India in Maru Ram’s case, the Apex Court laid down certain principles. In paragraph 72(10) it was observed as under :-

“Although the remission rules or short-sentencing provision proprio vigore may not apply as against S. 433-A, they will override S. 433A if the Government, Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Arts. 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents. S. 433A is itself treated as a guideline for exercise of Arts. 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.”

7. The underlined portion in our view is a clear indication that in case of “intractably savage delinquents” the yard-stick for the grant of mercy could be different from that in other cases. Soon thereafter in the case commonly known as Billa Ranga’s case Kuljeet Singh alias Ranga v. Union of India AIR 1981 SC 1572 : (1981 Cri LJ 1045), Chief Justice Chandrachud observed that (at page 1047 (of Cri LJ) –

“the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp. The murder was most certainly not committed on the spur of the moment as a result of some irresistible impulse which can be said to have overtaken the accused at the crucial moment. In other words, there was a planned motivation behind the crime though the accused had no personal motive to commit the murder of these two children.”

Further it was observed as under (para 9) :-

“The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing society.”

8. After dismissal of Appeal by the Supreme Court and the mercy petition by the President, a petition under Art. 32 was moved before the Supreme Court. It was contended that the power conferred by Art. 72 of the Constitution was a power coupled with duty which had to be exercised fairly and reasonably. In Kuljeet Singh alias Ranga v. Lt. Governor, Delhi AIR 1981 SC 2239 Rule Nisi was issued. The execution of death penalty in all cases was stayed. However, finally the case was disposed of with the following observations reported in AIR 1982 SC 774 : (1982 Cri LJ 624) (Para 1) :-

“But the question as to whether the case is appropriate for the exercise of the power conferred by Art. 72 depends upon the facts and circumstances of each particular case. The necessity or the justification for exercising that power has therefore to be judged from case to case. In fact, we do not see what useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. After all, the power conferred by Art. 72 can be used only for the purpose of reducing the sentence, not for enhancing it. We need not, however, go into that question elaborately because in so far as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh alias Ranga v. Union of India (1981 (3) SCR 512 : AIR 1981 SC 1572 : (1981 Cri LJ 1045). We may recall what we said in that judgment that “the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamps”, that the “survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security”, and that “they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society.”

2. The petition is accordingly dismissed.”
3. A perusal of the above would show that while exercising power under Arts. 72 and 161 of the Constitution of India, the facts and circumstances of each case can be taken into consideration. The heinousness of the crime which had been perpetrated by Billa and Ranga had persuaded the Supreme Court to hold that even the most liberal use of mercy jurisdiction could not have persuaded the President to interfere with the sentence of death. Apparently the heinousness of crime and the ‘intractable savagery’ of the delinquent are factors which have been considered to be relevant for the exercise of power under Arts. 72 and 161 of the Constitution. Even otherwise, whatever is relevant for the Court while awarding punishment can by no process of law or logic become irrelevant or extraneous for the Government while considering the question of pre-mature release.
4. While exercising powers under Arts. 72 and 161 of the Constitution, the appropriate authority is competent to examine the record of the criminal case. It is also competent to take into consideration such evidence as may have come into its possession besides the evidence on the file of the Court. Nothing considered in this regard can be dubbed as extraneous. Just as in the case of Billa and Ranga, the gravity of the offence persuaded the Court to hold that the President could not have awarded a punishment less than death sentence, the executive authority can in all cases examine various factors including the heinousness or gravity of the offence to decide as to whether or not premature release of a convict is desirable. The conflict between individual’s freedom and social order has to be reasonably balanced on a comprehensive consideration of all relevant factors. Heinousness or gravity of the offence are not irrelevant to that consideration.
5. We are also unable to accept the contention that the question of pre-mature release has to be considered only on the grounds mentioned in the letter dated December 12, 1985 or that the heinousness of crime is specifically excluded under the said letter. Exercise of mercy jurisdiction involves a permutation and combination of a large number of factors. No executive authority can visualise all permutations and combinations and lay down guidelines of universal application. It can only think of some and incorporate them by way of guidelines. No such compilation can be exhaustive in its scope. In any event the letter of December 12, 1985 to which repeated reference has been made by the learned counsel does not in any way exclude the gravity of the offence as one of the factors relevant for the decision of the mercy petition. In this letter, it is inter alia mentioned as under :-

“The aspect of young/adolescent age, sex, mental deficiency, grave or sudden provocation and absence of motive and pre-meditation should also be the factors while scrutinising the copies of the judgments in mercy petition cases.”

12. Factors like grave or sudden provocation and absence of motive and premeditation are relevant for determining the heinousness of the crime. These have been specifically included in the letter of December 12, 1985. Whatever was implicit in this letter has later on been clarified by the Government by its letter of July 8, 1991, a copy of which was produced before us during the hearing. The convicts have been classified under different heads. Heinousness of the crime is specifically made relevant. In view of these instructions, the contention based on instructions has primarily become academic. However, in view of the fact that even in the letter of December 12, 1985, the heinousness of the crime has not been excluded, the question need not be examined any further.
13. We are also of the view that all convicts cannot be classified as one homogeneous class. They can be classified on the basis of different considerations. Heinousness or gravity of the offence committed by a convict can be one of the basis for classification. Billa and Ranga can in a given situation be treated as a class apart from an ordinary convict, who may have committed murder in an entirely different situation. While it may not be open to the executive to make the classification on the basis of wholly arbitrary or extraneous criteria, we entertain no doubt that in principle the classification can be founded on the gravity of the offence. Mr. Jindal has referred to the various provisions of the Punjab Jail Manual to contend that the convicts have been classified by a uniform criteria and their further classification on the basis of the supposed heinousness of the crime would be unfair and inequitable. In our view the provisions of the Jail Manual are merely guidelines which can be taken into consideration by the Governor while passing orders under Art. 161 of the Constitution. These do not preclude the Governor from taking into consideration factors like heinousness of the crime.
14. In view of the above, we answer the question posed at the threshold in the negative and hold that the heinousness of the crime is not extraneous to the grant of pardon or pre-mature release. We are also of the view that the decisions of this Court in Mithu Singh’s case (1989) 1 Rec Cri R 238 Dalbir Singh’s case 1989 (2) All Cri LR 290 and in Sehaj Ram’s case (1990 (2) Chand Cri C 99, suggesting that heinousness is irrelevant, do not lay down correct law. The case will now go back to the learned single Judge for decision on merits.

Order accordingly.