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CASE NO.: Writ Petition (crl.)  284-285 of 2005

PETITIONER: Epuru Sudhakar & Anr.                                    

RESPONDENT: Govt. of A.P. & Ors.                                             

DATE OF JUDGMENT: 11/10/2006

BENCH: ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this writ petition under Article 32 of the  Constitution of India, 1950 (in short the ’Constitution’) is to  the order passed by Government of Andhra Pradesh,  represented by its Principal Secretary whereby Gowru Venkata  Reddy-respondent No.2 was granted remission of unexpired  period of about seven years imprisonment. GOMs. No.170  dated 11.8.2005 in this regard is challenged.   

       Factual scenario as per petitioners is as follows:   Petitioner No.1 is the son of late Sh. Epuru Chinna  Ramasubbaiah who was murdered along with another person  on 19.10.1995.  Petitioner No.2 claims to be the son of one late  Sh. Tirupati Reddy who was allegedly murdered by respondent  No.2 while he was on bail in the murder case of father of  petitioner No.1.  In the case relating to the murder of late Sh.  Epuru Chinna Ramasubbaiah and one Ambi Reddy,  respondent No.2 faced trial and ultimately the matter came  before this Court in Criminal Appeal Nos. 519-521 of 2003  which was disposed of by this Court by judgment dated  19.11.2003 and the conviction of respondent No.2 was altered  from one under Section 302 of the Indian Penal Code, 1860 (in  short the ’IPC’)  to Section 304(1) read with Section 109 IPC  and custodial sentence of 10 years’ rigorous imprisonment  was imposed. Conviction relating to some other sentences was  maintained. On 28.5.2003, the respondent No.3 wife of  respondent No.2 submitted a representation for grant of parole  to respondent No.2 and on 18.10.2003 parole was granted for  a period of 15 days but the same was cancelled on 30.10.2003  by the State Government in view of the report sent by  Superintendent of Police, Kurnool that on account of  respondent No.2’s release on parole there was a likelihood of  breach of peace and law and order if the respondent No.2  visits Nandikotkur Assembly Constituency.  Respondent No.3  contested the election to the Andhra Pradesh Assembly  Election and on 12.5.2004 was elected as member of  Legislative Assembly. On 14.5.2004 she made a representation  for grant of parole to respondent No.2.  Same was granted on  19.5.2004 and was extended from time to time.  On 18.7.2004  fourth extension for 15 days was granted. On 10.10.2004  respondent No.3 made a representation to respondent No.1

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seeking pardon to respondent No.2 by exercise of power under  Article 161 of the Constitution alleging that he was implicated  in false cases due to political rivalry. On 18.10.2004 during  the pendency of the petition for pardon, one month parole was  granted. On 11.8.2005 the Governor of Andhra Pradesh  purportedly exercised power under Article 161 of the  Constitution and granted remission of the unexpired sentence  of respondent No.2.  Director General and Inspector General of  Police (Correction Services)  Andhra Pradesh were directed to  take action for release of respondent No.2 and in fact on  12.8.2005 the Superintendent of Central Prison,  Cherlapally,  R.R. District directed release of respondent No.2.   

The writ petition has been filed inter alia alleging that the  grant of remission (described in the writ petition as grant of  pardon) was illegal, relevant materials were not placed before  the Governor, and without application of mind impugned order  was passed. The recommendations made for grant of  remission were based on irrelevant and extraneous materials.   The factual scenario has not been placed before the Governor  in the proper perspective.  The sole basis on which respondent  No.3 asked for pardon was alleged implication in false cases  due to political rivalry. In view of this Court’s judgment  holding the respondent No.2 guilty, the said plea could not  have been even considered as a basis for grant of pardon.   Since the grant of pardon is based on consideration of  irrelevant materials and non-consideration of relevant  materials the same is liable to be set aside.

       Learned counsel for the respondent-State and respondent  Nos.2 and 3 has strenuously contended that the petition is the  outcome of a political vendetta. All relevant materials have  been taken into account by the Governor, a high constitutional  authority who passed the order granting remission. It is  submitted that the petitioner has confused between pardon  and remission of sentence. It is a case where materials existed  which warranted the grant of remission and this Court should  not interfere in the matter. Considering the limited scope for  judicial review the writ petition deserves to be dismissed.     

       Considering the fact that in large number of cases  challenge is made to the grant of pardon or remission, as the  case may be, we had requested Mr. Soli J Sorabjee to act as  Amicus Curiae.  He has highlighted various aspects relating to  the grant of pardon and remission, as the case may be, and  the scope for judicial review in such matters. He has suggested  that considering the frequency with which pardons and/or the  remission are being granted, in the present political scenario  of the country it would be appropriate for this Court to lay  down guidelines so that there is no scope for making a  grievance about the alleged misuse of power.

Learned counsel for the respondents on the other hand  submitted that though in Maru Ram v. Union of India &  Others [1981 (1) SCC 107] this Court had indicated certain  recommendatory guidelines, the same did not find acceptance  in Kehar Singh and Another v. Union of India and Another  [1989(1) SCC 204].  As a matter of fact in a later decision in  Ashok Kumar @ Golu v. Union of India and Ors. (1991 (3) SCC  498) the alleged apparent inconsistencies in the view was  highlighted and a 3-Judge Bench held that laying down  guidelines would be inappropriate.

The relevant constitutional provisions regarding the grant  of pardon, remissions, suspension of sentence, etc. by the

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President of India and the Governor of a State are as follows:

"Article 72. Power of President to grant  pardons, etc. and to suspend, remit or  commute sentences in certain cases \027 (1)  The President shall have 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 \027

(a) in all cases where the punishment  or sentence is by a Court Martial;

(b) in all cases where the punishment  or sentence is for an offence against  any law relating to a matter to which  the executive power of the Union  extends;

(c) in all cases where the sentence is a  sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall  affect the power conferred by law on any  officer of the Armed Forces of the Union to  suspend, remit or commute a sentence  passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall  affect the power to suspend, remit or  commute a sentence of death exercisable by  the Governor of a State under any law for the  time being in force."

"Article 161 Power of Governor to grant  pardons, etc., and to suspend, remit or  commute sentences in certain cases \026 The  Governor of a State shall have 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 against any law  relating to a matter to which the executive  power of the State extends."

The provision corresponding to Article 72 in the  Government of India Act 1935 (in short ’the Government Act’)  was Section 295 which reads as follows:

"(1) Where any person has been sentenced to  death in a Province, the Governor-General in  his discretion shall have all such powers of  suspension, remission or commutation of  sentence as were vested in the Governor- General in Council immediately before the  commencement of Part III of this Act, but save  as aforesaid no authority in India outside a  Province shall have any power to suspend,  remit or commute the sentence of any person  convicted in the Province.

Provided that nothing in this sub-section  affects any powers of any officer of His  Majesty’s forces to suspend, remit or

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commute a sentence passed by a Court- Martial.

(2) Nothing in this Act shall derogate from the  right of His Majesty, or of the Governor- General, if any such right is delegated to him  by His Majesty, to grant pardons, reprieves,  respites or remissions of punishment."

There was no provision in the Government Act  corresponding to Article 161 of the Constitution.

The above constitutional provisions were debated in the  Constituent Assembly on 29th December 1948 and 17th  September 1949 [see Constituent Assembly Debates, Vol.7,  pages 1118-1120 and Vol. 10, page 389]. The grounds and  principles on which these powers should be exercised were  neither discussed nor debated [See Framing of India’s  Constitution: A Study, 2" Edition, Dr. Subhash C Kashyap,  pages 367-371 , pages 397-399].

In addition to the above constitutional provisions the  Code of Criminal Procedure 1973 (in short ’Cr.P.C.’) provides  for power to suspend or remit sentences and the power to  commute sentence in Section 432 and Section 433  respectively.  

Section 433A lays down restrictions on provisions of  remission or commutation in certain cases mentioned therein.  Section 434 confers concurrent power on the Central  Government in case of death sentence.

Section 435 provides that the power of the State  Government to remit or commute a sentence where the  sentence is in respect of certain offences specified therein will  be exercised by the State Government only after consultation  with the Central Government.

Sections 54 and 55 of IPC confer power on the  appropriate Government to commute sentence of death or  sentence of imprisonment for life as provided therein.  

Sections 432 and 433 Cr.P.C. read as follows:

"432. Power to suspend or remit  sentences.\027( I) When any person has been  sentenced to punishment for an offence, the  appropriate Government may, at any time,  without conditions or upon any conditions  which the person sentenced accepts, suspend  the execution of his sentence or remit the  whole or any part of the punishment to which  he has been sentenced.

(2) Whenever an application is made to the  appropriate Government for the suspension or  remission of a sentence, the appropriate  Government may require the presiding Judge  of the Court before or by which the conviction  was had or confirmed, to state his opinion as  to whether the application should be granted  or refused, together with his reasons for such  opinion and also to forward with the  statement of such opinion a certified copy of

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the record of the trial or of such record  thereof as exists.

(3) If any condition on which a sentence has  been suspended or remitted is, in the opinion  of the appropriate Government, not fulfilled,  the appropriate Government may cancel the  suspension or remission, and thereupon the  person in whose favour the sentence has been  suspended or remitted may. if at large, be  arrested by any police officer, without warrant  and remanded to undergo the unexpired  portion of the sentence.

(4) The condition on which a sentence is  suspended or remitted under this section may  be one to be fulfilled by the person in whose  favour the sentence is suspended or remitted,  or one independent of his will.

(5) The appropriate Government may. by  general rules or special orders, give directions  as to the suspension of sentences and the  conditions on which petitions should be  presented and dealt with:

Provided that in the case of any sentence  (other than a sentence of fine ) passed on a  male person above the age of eighteen years, no  such petition by the person sentenced or by  other person on his behalf shall be entertained,  unless the person sentenced is in jail and,-

(a) where such petition is made by the person  sentenced, it is presented through the officer  in charge of the jail; or

(b) where such petition is made by any other  person it contains a declaration that the  person sentenced is in jail.

(6) The provisions of the above sub-sections  shall also apply to any order passed by a  Criminal Court under any section of this Code  or of any other law which restricts the liberty  of any person or imposes any liability upon  him or his property.

(7) In this section and in section 433, the  expression "appropriate Government" means,-

(a) in cases where the sentence is for an  offence against, or the order referred to in  sub-section (6) is passed under, any law  relating to a matter to which the executive  power of the Union extends, the Central  Government;

(b) in other cases the Government of the State  within which the offender is sentenced or the  said order is passed.

433. Power to commute sentence._The  appropriate Government may, without the  consent of the person sentenced, commute-

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(a) a sentence of death, for any other  punishment provided by the Indian Penal Code  (45 of l860);

(b) a sentence of imprisonment for life, for  imprisonment for a term not exceeding  fourteen years or for fine;

(c) a sentence of rigorous imprisonment for  simple imprisonment for any term to which  that person might have been sentenced, or for  fine;

(d) a sentence of simple imprisonment for fine".

The philosophy underlying the pardon power is that  "every civilized country recognizes, and has therefore provided  for, the pardoning power to be exercised as an act of grace and  humanity in proper cases. Without such a power of clemency,  to be exercised by some department or functionary of a  government, a country would be most imperfect and deficient  in its political morality, and in that attribute of Deity whose  judgments are always tempered with mercy." [See 59 American  Jurisprudence 2d, page 5].

The rationale of the pardon power has been felicitously  enunciated by the celebrated Justice Holmes of the United  States Supreme Court in the case of Biddle v. Perovich in  these words [71 L. Ed. 1161 at 1163]:

"A pardon in our days is not a private act of  grace from an individual happening to  possess power. It is a part of the  constitutional scheme. When granted, it is the  determination of the ultimate authority that  the public welfare will be better served by  inflicting less than what the judgment fixed."  

(emphasis added)                                            "Pardon and Parole" as per Corpus Juris Secundum  (Vol.67-A) reads as follows: (Pages 16 and 17)

"The pardoning power is founded on  considerations of the public good,  and is to  be exercised on the ground that the public  welfare, which is the legitimate object of all  punishment, will be as well promoted by a  suspension as by an execution of the  sentence. It may also be used to the end that  justice be done by correcting injustice, as  where after-discovered facts convince the  official or board invested with the power that  there was no guilt or that other mistakes were  made in the operation or enforcement of the  criminal law. Executive clemency also exists  to afford relief from undue harshness in the  operation or enforcement of criminal law."

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Interests of society and convict

(1) Acts of leniency by pardon are administered  by the executive branch of the government in  the interests of society and the discipline,  education, and reformation of the person  convicted. III- People v. Nowak, 35, N.E. 2d 63,  387 III, II.

(2) A pardon is granted on the theory that the  convict has seen the error of his ways, that  society will gain nothing by his further  confinement and that he will conduct himself  in the future as an upright, law-abiding citizen.

Matter known to counsel

The pardoning power is set up to prevent  injustice to a person who has been convicted,  especially when the facts of such injustice were  not properly produced in the trial court, but  such power is not a proper remedy on account  of failure to use any matter which was known  to defendant or his counsel and was available  at time of new trial motion.

Showing that convection was on perjured  testimony "Pardon and Parole" as stated in AMERICAN  JURISPRUDENCE (Second Edition) (Volume 59) reads as  follows:

I. INTRODUCTORY

1.      History of pardoning power.

Every civilized country recognizes, and has  therefore provided for, the pardoning power to  be exercised as an act of grace and humanity  in proper cases. Without such a power of  clemency, to be exercised by some  department or functionary of a Government, a  country would be most imperfect and  deficient in its political morality, and in that  attribute of Deity whose judgments are always  tempered with mercy. In England, this power  has been exercised from time immemorial,  and has always been regarded as a necessary  attribute of sovereignty. In the United States,  this power is extended to the President by the  United States Constitution, and in the various  states and territories it is either conferred by  constitutional provision or organic act, or  provided for by statute, the power usually  being conferred upon the governor or upon a  board of which the governor is a member. In  some instances, however, the governor’s  power is so limited as to render an arbitrary  exercise impossible.

2. Validity of contract to procure pardon;  criminal liability. While the earlier cases  uniformly held agreements to secure a  pardon, parole, or commutation of sentence  illegal irrespective of the services rendered or

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contemplated, the more recent decisions take  the view that such contracts are valid or  invalid according to the character of the  services contemplated. Although there is  some conflict of opinion, contracts entered  into to obtain a pardon, parole, or  commutation of sentence have generally been  upheld where the services contemplated are  not other than the proper presentation of the  case before the pardoning power."  

Reprieve

A reprieve, from the French word "reprendre,"  to take back, is the withdrawing of a sentence  for an interval of time, whereby the execution  is suspended. It is merely the postponement  of the execution of a sentence for a definite  time, or to a day certain. It does not and  cannot defeat the ultimate execution of the  judgment of the court, but merely delays it  temporarily. Reprieves at common law are of  three kinds:

1. ex mandato regis, from the mere pleasure  of the Crown;

2. ex arbitrio judicis, the power to grant which  belongs of common right to every tribunal  which is invested with authority to award  execution; and

3. ex necessitate legis, required by law to be  granted under certain circumstances, as  when a woman convicted of a capital offence  alleges pregnancy of a quick child in delay of  execution, or when a prisoner has become  insane between the time of sentence and the  time fixed for execution.

In Sir William Wades’  Administrative Law (Ninth Edition)  the position relating to pardon is stated as follows:

"The royal prerogative

The prerogative powers of the Crown have  traditionally been said to confer discretion  which no court can question; and there was  long a dearth of authority to the contrary. But  it may be that this was because the decided  cases involved discretions which are, as has  been laid down in the House of Lords,  inherently unsuitable for judicial review,  ’such as those relating to the making of  treaties, the defence of the realm, the  prerogative of mercy, the grant of honours,  the dissolution of Parliament and the  appointment of ministers as well as others’.  But at the same time the House of Lords held  that the court could review a ministers action  (forbidding trade union membership by  certain civil servants) under authority  delegated to him by prerogative Order in  Council, so that the principles of natural  justice would apply. Administrative action

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was held to be reviewable in proceedings  against the responsible minister without  distinction as to the origin of the power,  whether statute or common law.  In later  cases it was held that the dismissal of a civil  servant involved ’a sufficient public law  element’ to be subject to Judicial review and  that an unfair compensation award by the  civil service appeal board should be quashed.  So now it may be said that the royal  prerogative does not per se confer  unreviewable discretion, but that many of the  powers contained in it will be  of a kind with  which the courts will not concern themselves.  It may be the prerogative acts of the Crown  itself, though taken on the advice of ministers  are immune from review, whereas the action  of ministers, though authorised by delegation  of prerogative power, is reviewable.But this is  an artificial distinction, and if the case were  strong enough even an Order in Council  might prove to be reviewable  in a declaratory  judgment.

These propositions are founded on the  wide definition of prerogative which has been  criticized earlier. The making of treaties, for  example, has no effect on the law of this  country, so that there is no exercise of power  which can concern the courts.  It might be  called prerogative without power, while the  employment of civil servants might be called  power without prerogative. A case where there  may be neither prerogative nor power is the  grant and refusal of passports, which has  been claimed to be wholly within the  prerogative and discretion of the Crown. A  passport is merely an administrative device,  the grant or cancellation of which probably  involves no direct legal consequences, since  there appears to be no justification for  supposing that, in law as opposed to  administrative practice, a Citizen’s right to  leave or enter the country is dependent upon  the possession of a  passport.  The arbitrary  power claimed by the Crown has now been  made subject to judicial review along with  various other non-legal powers discussed  later.  Other countries were ahead of Britain  in protecting this necessary civil right.

At least it is now judicially recognised  that prerogative power is as capable of abuse  as is any other power, and that the law can  sometimes find means of controlling it. The  prerogative has many times been restricted  both by judicial decision and by statute. It is  for the court to determine the legal limits of  the prerogative, and they may include the  same requirement of reasonable and proper  exercise as applies to statutory powers\027 though with this difference, that it cannot be  based upon the presumed intention of  Parliament. In one unusual case, where a  Parliamentary basis could be found because

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action taken by a minister under a treaty was  held to be impliedly prohibited by a statute,"  Lord Denning MR discussed the nature of the  prerogative and said:

Seeing that the prerogative is a  discretionary power to be exercised  for the public good, it follows that its  exercise can be examined by the  courts just as any other  discretionary power which is vested  in the executive.

Then after citing cases of abuse of statutory  power he concluded:

Likewise it seems to me that when  discretionary powers are entrusted  to the executive by the prerogative\027 in pursuance of the treaty-making  power\027the courts can examine the  exercise of them so as to see that  they are not used improperly or  mistakenly.

Although this last remark was said in the  House of Lords to be ’far too wide’, in today’s  atmosphere it seems clear that the court  would entertain a complaint that, for  example, a royal pardon had been obtained by  fraud or granted by mistake or for improper  reasons. The High Court has gone so far as to  review a decision of the Home Secretary not to  recommend a posthumous free pardon for a  youth hanged for murder forty years  previously, on the ground that he considered  only an unconditional pardon and failed to  take account of other possibilities. Although  the court made no order or declaration and  merely invited the Home Secretary to look at  the matter again, it clearly took a long step  towards judicial review of the prerogative of  mercy. For example it was clear that the  Home Secretary had refused to pardon  someone solely on the ground of their sex,  race or religion, the courts would be expected  to interfere and our judgment  would be  entitled to do so.

In New Zealand the Court of Appeal has  held that the prerogative power of pardon is  not reviewable ’at any rate at present’, but  that the position might change justice so  required; that the prerogative character of the  power did not exempt it from review; but that  the existing legal and administrative  safeguards were adequate so that an  extension of judicial review was unnecessary.

A further question is whether the law  should concern itself with the Crown’s  exercise of the ordinary powers and liberties  which all persons possess, as in the making  of contracts and the conveyance of land. It  has hitherto been assumed that in this area

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the Crown has the same free discretion as has  any other person. But where such powers are  exercised for governmental purposes it is  arguable that the courts should be prepared  to intervene, as a matter of public ethics, as a  safeguard against abuse. They do not allow  local authorities to act arbitrarily or  vindictively in evicting tenants, letting sports  grounds or placing advertisements, for  example. Those are technically statutory  powers (since all local authorities are  statutory), but they correspond to ordinary  powers and liberties. If, as the House of Lords  holds, the source of power is irrelevant, it  would not seem impossible for judicial review  to be extended to this ’third source’ of public  power which is neither statutory nor  prerogative but is a remnant from the days of  personal government. But the ’grotesquely  undemocratic idea that public authorities  have a private capacity is deeply embedded in  our legal culture’, and such judicial authority  as there is, is not encouraging.

       We shall deal with the extent of power for judicial review  as highlighted by learned counsel for the parties and learned  Amicus Curie before we deal with the factual scenario.

It is fairly well settled that the exercise or non-exercise of  pardon power by the President or Governor, as the case may  be, is not immune from judicial review. Limited judicial review  is available in certain cases.

In Maru Ram’s case (supra) it was held that all public  power, including constitutional power, shall never be  exercisable arbitrarily or mala fide and, ordinarily, guidelines  for fair and equal execution are guarantors of the valid play of  power.  

It is noteworthy that in Kehar Singh’s case (supra) the  contention that the power of pardon can be exercised for  political consideration was unequivocally rejected. In Maru  Ram’s case (supra) it was held that consideration of religion,  caste, colour or political loyalty are totally irrelevant and  fraught with discrimination.

In Kehar Singh’s case (supra) it was held that the order of  the President cannot be subjected to judicial review on its  merits except within the strict limitations delineated in Maru  Ram’s case (supra). The function of determining whether the  act of a constitutional or statutory functionary falls within the  constitutional or legislative conferment of power, or is vitiated  by self-denial on an erroneous appreciation of the full  amplitude of the power is a matter for the court.

In Kehar Singh’s case (supra), placing reliance on the  doctrine of the division (separation) of powers it was pleaded,  that it was not open to the judiciary to scrutinize the exercise  of the "mercy" power. In dealing with this submission this  Court held that the question as to the area of the President’s  power under Article 72 falls squarely within the judicial  domain and can be examined by the court by way of judicial  review.

As regards the considerations to be applied to a petition

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for pardon/remission in Kehar Singh’s case (supra) this Court  observed as follows:

"As regards the considerations to be applied by  the President to the petition, we need say  nothing more as the law in this behalf has  already been laid down by this Court in Maru  Ram."  

In the case of Swaran Singh v. State of U.P. [1998 (4)  SCC 75] after referring to the judgments in the cases of Maru  Ram’s case (supra) and Kehar Singh’s case (supra) this Court  held as follows:

"we cannot accept the rigid contention of the  learned counsel for the third respondent that  this court has no power to touch the order  passed by the Governor under Article 161 of  the Constitution. If such power was exercised  arbitrarily, mala fide or in absolute disregard of  the finer canons of the constitutionalism, the  by-product order cannot get the approval of law  and in such cases, the judicial hand must be  stretched to it."

 The factual scenario in Swaran Singh’s case (supra)  needs to be noted. One Doodh Nath was found guilty of  murdering one Joginder Singh and was convicted to  imprisonment for life. His appeals to the High Court and  Special Leave Petition to this Court were unsuccessful.  However, within a period of less than 2 years the Governor of  Uttar Pradesh granted remission of the remaining long period  of his life sentence. This Court quashed the said order of the  Governor on the ground that when the Governor was not  posted with material facts, the Governor was apparently  deprived of the opportunity to exercise the powers in a fair and  just manner. Conversely, the impugned order, it was observed  "fringes on arbitrariness".

The Court held that if the pardon power "was exercise  arbitrarily, mala fide or in absolute disregard of the finer  canons of the constitutionalism, the by-product order cannot  get the approval of law and in such cases, the judicial hand  must be stretched to it".  The Court further observed that  when the order of the Governor impugned in these proceedings  is subject to judicial review within the strict parameters laid  down in Maru Ram’s case (supra) and reiterated in Kehar  Singh’s case (supra): "we feel that the Governor shall  reconsider the petition of Doodh Nath in the light of those  materials which he had no occasion to know earlier.", and left  it open to the Governor of Uttar Pradesh to pass a fresh order  in the light of the observations made by this  Court.  

In the case of Satpal and Anr. v. State of Haryana and  Ors. [2000 (5) SCC 170], this Court observed that the power of  granting pardon under Article 161 is very wide and does not  contain any limitation as to the time at which and the  occasion on which and the circumstances in which the said  powers could be exercised.  

Thereafter the Court held as follows:

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"\005the said power being a constitutional  power conferred upon the Governor by the  Constitution is amenable to judicial review on  certain limited grounds. The Court, therefore,   would be justified in interfering with an order  passed by the Governor in exercise of power  under Article 161 of the Constitution if the  Governor is found to have exercised the power  himself without being advised by the  Government or if the Governor transgresses  the jurisdiction in exercising the same or it is  established that the Governor has passed the  order without application of mind or the order  in question is mala fide one or the Governor  has passed the order on some extraneous  consideration."  

The principles of judicial review on the pardon power have  been re-stated in the case of Bikas Chatterjee v. Union of lndia  [2004 (7) SCC 634].

       In Mansukhlal Vithaldas Chauhan v. State of Gujarat  1997 (7) SCC 622 it was inter-alia held as follows:

       "25. This principle was reiterated in Tata  Cellular v. Union of India (1994 (6) SCC 651  in which it was, inter alia, laid down that the  Court does not sit as a court of appeal but  merely reviews the manner in which the  decision was made particularly as the Court  does not have the expertise to correct the  administrative decision. If a review of the  administrative decision is permitted, it will be  substituting its own decision which itself may  be fallible. The Court pointed out that the  duty of the Court is to confine itself to the  question of legality. Its concern should be:

1. Whether a decision-making authority  exceeded its powers?;

2. committed an error of law;

3. committed a breach of the rules of  natural justice;

4. reached a decision which no  reasonable tribunal would have reached;  or

5. abused its powers.

26. In this case, Lord Denning was quoted as  saying: (SCC pp. 681-82, para 83)

"Parliament often entrusts the decision of  a matter to a specified person or body,  without providing for any appeal. It may  be a judicial decision, or a quasi-judicial  decision, or an administrative decision.  Sometimes Parliament says its decision is  to be final. At other times it says nothing  about it. In all these cases the courts will  not themselves take the place of the body  to whom Parliament has entrusted the

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decision. The courts will not themselves  embark on a rehearing of the matter. See  Healey v. Minister of Health (1955 (1) QB  221)."

27. Lord Denning further observed as under:  (p. 682)

"If the decision-making body is influenced  by considerations which ought not to  influence it; or fails to take into account  matters which it ought to take into  account, the court will interfere. See  Padfield vs. Minister of Agriculture,  Fisheries and Food (1968 AC 997).  (emphasis supplied)"

28. In Sterling Computers Ltd. v. M&N  Publications Ltd. ((1993 (1) SCC 445) it was  pointed out that while exercising the power of  judicial review, the Court is concerned  primarily as to whether there has been any  infirmity in the decision-making process? In  this case, the following passage from  Professor Wade’s Administrative Law was  relied upon: (SCC p. 457, para 17)

"The doctrine that powers must be  exercised reasonably has to be   reconciled with the no less important  doctrine that the court must not  usurp the discretion of the public  authority which Parliament appointed  to take the decision. Within the  bounds of legal reasonableness is the  area in which the deciding authority  has genuinely free discretion. If it   passes those bounds, it acts ultra  vires. The court must therefore resist  the temptation to draw the bounds  too tightly, merely according to its  own opinion. It must strive to apply  an objective standard which leaves to  the deciding authority the full range  of choices which legislature is  presumed  to have intended."  

(emphasis supplied)

29. It may be pointed out that this principle  was also applied by Professor Wade to quasi- judicial bodies and their decisions. Relying  upon decision in R. v. Justices of  London(1895 1 QB 214). Professor Wade laid  down the principle that where a public  authority was given power to determine  matter, mandamus would not lie to compel it  to reach some particular decision.

30. A Division Bench of this Court comprising  Kuldip Singh and B.P. Jeevan Reddy, JJ. in  U.P. Financial Corpn. v. Gem Cap (India) (P)  Ltd. (1993 (2) SCC 299) observed as under:  (SCC pp. 306-07, para 11)

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"11. The obligation to act fairly on  the part of the administrative  authorities was evolved to ensure  the rule of law and to prevent  failure of justice. This doctrine is  complementary to the principles of  natural justice which the quasi- judicial authorities are bound to  observe. It is true that the  distinction between a quasi- judicial and the administrative  action has become thin, as pointed  out by this Court as far back as  1970 in A.K. Kraipak v. Union of  India (1969 (2) SCC 262). Even so  the extent of judicial  scrutiny/judicial review in the case  of administrative action cannot be  larger than in the case of quasi-  judicial action. If the High Court  cannot sit as an appellate  authority over the decisions and  orders of quasi-judicial authorities  it follows equally that it cannot do  so in the case of administrative  authorities. In the matter of  administrative action, it is well  known, more than one choice is  available to the administrative  authorities; they have a certain  amount of discretion available to  them. They have ’a right to choose  between more than one possible  course of action upon which there  is room for reasonable people to  hold differing opinions as to which  is to be preferred’. (Lord Diplock in  Secy. of State for Education and  Science v. Tameside Metropolitan  Borough Council 1977 AC 1014 at  p.1064.) The Court cannot  substitute its judgment for the  judgment of administrative  authorities in such cases. Only  when the action of the  administrative authority is so  unfair or unreasonable that no  reasonable person would have  taken that action, can the Court  intervene." (emphasis supplied)

The position, therefore, is undeniable that judicial review  of the order of the President or the Governor under Article 72  or Article 161, as the case may be, is available and their  orders can be impugned on the following grounds:

(a) that the order has been passed without  application of mind;

(b) that the order is mala fide;

(c) that the order has been passed on  extraneous or wholly irrelevant  considerations;

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(d) that relevant materials have been kept out  of consideration;

(e) that the order suffers from arbitrariness

Two important aspects were also highlighted by learned  Amicus Curiae; one relating to the desirability of indicating  reasons in the order granting pardon/remission while the  other was an equally more important question relating to  power to withdraw the order of granting pardon/remission, if  subsequently, materials are placed to show that certain  relevant materials were not considered or certain materials of  extensive value were kept out of consideration.  According to  learned Amicus Curiae, reasons are to be indicated, in the  absence of which the exercise of judicial review will be  affected.  

So far as desirability to indicate guidelines is concerned  in Ashok Kumar’s case (supra) it was held as follows :  

"17-   In Kehar Singh’s case (supra) on the  question of laying down guidelines for the  exercise of power under Article 72 of the  constitution this Court observed in paragraph  16 as under: (SCC pp. 217-18, para 16)

"It seems to us that there is  sufficient indication in the terms of   Article 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  Article 72 is of the widest amplitude,  can contemplate a myriad kinds and  categories of cases with facts and  situations varying from case to case,  in which the merits and reasons of  State may be profoundly assist by  prevailing occasion and passing  time. And it is of great significance  that the  function itself enjoys high  status in the constitutional  scheme".

These observations do indicate that the  Constitution Bench which decided Kehar  Singh’s case (supra) was of the view that the  language of Article 72 itself provided sufficient  guidelines for the exercise of power and  having regard to its wide amplitude and the  status of the function to be discharged   thereunder, it was perhaps unnecessary to  spell out specific guidelines since such  guidelines may not be able to conceive of all  myriads kinds and categories of cases which  may come up for the exercise of such power.  No doubt in Maru Ram’s case (supra) the  Constitution Bench did recommend the  framing of guidelines for the exercise of power

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under Articles 72/161 of the Constitution.  But that was a mere recommendation and not  ratio decidendi having a binding effect on the  Constitution Bench which decided Kehar  Singh’s case (supra). Therefore, the  observation made by the Constitution Bench  in Kehar Singh’s case (supra)  does not  upturn any ratio laid down in Maru Ram’s  case(supra). Nor has the Bench in Kehar  Singh"s case (supra) said any thing with  regard to using the provisions of extant  Remission Rules as guidelines for the exercise  of the clemency powers."

In Kehar Singh’s case (supra) this Court held that:

"There is no question involved in the case of  asking for reasons for the Presidents’ Order".

        The same obviously means that the affected party need  not be given the reasons. The question whether reasons can or  cannot be disclosed to the Court when the same is challenged  was not the subject matter of consideration.  In any event, the  absence of any obligation to convey the reasons does not mean  that there should not be legitimate or relevant reasons for  passing the order.   

In S.R. Bommai and Ors. v. Union of India and Ors.  (1994 (3) SCC 1) in the context of exercise of power under  Article 356 of the Constitution it was observed at page 109,  para 87 as follows:

"When the Proclamation is challenged by  making out a prima facie case with regard to  its invalidity, the burden would be on the  Union Government to satisfy that there exists  material which showed that the Government  could not be carried on in accordance with  the provision of the Constitution. Since such  material would be exclusively within the  knowledge of the Union Government, in view  of the provision of Section 106 of the Evidence  Act, the burden on proving the existence of  such material would be on the Union  Government."

                        The position if the Government chooses not to disclose  the reasons or the material for the impugned action was stated  in the words of Lord Upjohn in the landmark decision in  Padfield and Ors. v. Minister of Agriculture, Fisheries and  Food and Ors. (1968 (1) All E.R. 694) at p.719:

"\005if he does not give any reason for his  decision it may be, if circumstances warrant  it, that a court may be at liberty to come to  the conclusion that he had no good reason for  reaching that conclusion.."

       The same approach was adopted by Justice Rustam S.  Sidhwa of the Lahore High Court in Muhammad Sharif v.  Federation of Pakistan (PLD 1988 Lah 725) where at p.775

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para 13 the learned Judge observed as follows:

"I have no doubt that both the Governments  are not compelled to disclose all the reasons  they may have when dissolving the  Assemblies under Articles 58 (2)(b) and  112(2)(b). If they do not choose to disclose all  the material, but only some, it is their pigeon,  for the case will be decided on a judicial  scrutiny of the limited material placed before  the Court and if it happens to be totally  irrelevant or extraneous, they must suffer."

       Justice Sidhwa’s aforesaid observations have been   referred to and approved in S.R. Bommai’s case (supra).                            

       Since there is a power of judicial review, however, limited  it may be, the same can be rendered to be an exercise in  futility in the absence of reasons.  

       The logic applied by this Court in Bommai’s case (supra)  in the context of Article 74(2) is also relevant. It was observed  in paras 153 and 434 as follows:

"153-Article 74(2) is not a bar against the  scrutiny of the material on the basis of which  the President had arrived at his satisfaction.

434- Article 74(2) merely bars an enquiry into  the question whether any and if so, what  advice was tendered by the Ministers to the  President. It does not bar the court from  calling upon the Union Council of Ministers  (Union of India) to disclose to the court the  material upon which the President had  formed the requisite satisfaction. The material  on the basis of which advice was tendered  does not become part of the advice. Even if  the material is looked into by or shown to the  President, it does not partake the character of  advice."   

So far as the second aspect relating to withdrawal is  concerned, it is submitted that though there is no specific  reference in this regard in either Article 72 or Article 161 of  the Constitution yet  by application of the provisions of the  General Clauses Act, 1897 (in short the ’General Clauses Act’)  the same would be permissible. It is also highlighted that  similar provisions are specifically provided in Sections 432 and  433 Cr.P.C. Merely because Article 72 and Article 161 of the  Constitution have not been so provided specifically that would  not mean that such power was not intended to be exercised.  

       Sections 14 and 21 of the General Clauses Act deal with   powers conferred to be exercisable from time to time and a  power to issue, to include power to add to, amend, vary or  rescind notifications, orders, rules or bye-laws. They read as  follows:

"14. Powers conferred to be exercisable from  time to time- (1) Where, by any Central Act or  Regulation made after the commencement of

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this Act, any power is conferred then unless a  different intention appears that power may be  exercised from time to time as occasion  requires.

(2) This section applies also to all Central Acts  and Regulations made on or after the  fourteenth day of January, 1887.

21.     Power to issue, to include power to add to,  amend, vary or rescind notifications, orders,  rules or bye-laws- Where, by any Central Act or  Regulation, a power to issue notifications  orders, rules or bye-laws is conferred, then that  power includes a power, exercisable in the like  manner and subject to the like sanction and  conditions (if any), to add to, amend, vary or  rescind any notifications, orders, rules or bye- laws so issued."

       The scope and ambit of Sections 14 and 21 of the  General Clauses Act have been analysed by this Court in  Sampat Prakash v. State of J & K (AIR 1970 SC 1118). It was  inter alia held in para 11 as follows:  

"11 - This provision is clearly a rule of  interpretation which has been made  applicable to the Constitution in the same  manner as it applied to any Central Act or  Regulation. On the face of it, the submission  that Section 21 cannot be applied to the  interpretation of the Constitution will lead to  anomalies which can only be avoided by  holding that the rule laid down in this section  is fully applicable to all provisions of the  Constitution."                  Section 432 (3) of Cr.P.C. reads as follows:

       "If any condition on which a sentence  has been suspended or remitted is, in the  opinion of the appropriate Government, not  fulfilled, the appropriate Government may,  cancel the suspension or remission, and  thereupon the person in whose favour the  sentence has been suspended or remitted  may, if at large, be arrested by any police  officer, without warrant and remanded to  undergo the unexpired portion of the  sentence."                  

The position in U.S.A. is summed up in Volume 67A Corpus  Juris Secundum, p.21 para 16 as follows:

       "There is authority for the view that a  pardon may be held void where it appears from  the pardon that the pardoning power was  misinformed; but there is also authority for the  view that intentional falsehood or suppression  of truth is necessary, and that misinformation  given in good faith and in the belief in its truth  is insufficient to avoid a pardon\005.A pardon  procured by false and fraudulent  representations or by intentional suppression

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of the truth is void, even though the person  pardoned had no part in perpetrating the  fraud."                   

       Inevitable conclusion, therefore, is that if it comes to the  knowledge of the Government that the pardon has been  obtained on the basis of manifest mistake or patent  misrepresentation or fraud, the same can be rescinded or  cancelled.          In R. v. Secretary of State for the Home Department, ex  parte Bentley (1993 (4) All E.R. 442)  it was held:  

"(1) The court had jurisdiction to review the  exercise of the royal prerogative of mercy by  the Home Secretary in accord with accepted  public law principles since the exercise of the  prerogative was an important feature of the  criminal justice system and a decision by the  Home Secretary which was infected with legal  errors ought not to be immune from legal  challenge merely because it involved an  element of policy or was made under the  prerogative.

(2) The Home Secretary’s decision not to  recommend a posthumous pardon for the  applicant’s brother was flawed because, in  considering whether to grant a posthumous  pardon, he had failed to recognise the fact  that the prerogative of mercy was capable of  being exercised in many different  circumstances and over a wide range and had  failed to consider the form of pardon which  might be appropriate. Furthermore, there was  no objection in principle to the grant of a  posthumous conditional pardon where a  death sentence had already been carried out,  as the grant of such a pardon represented  recognition by the state that a mistake had  been made and that a reprieve should have  been granted. Since the Home Secretary’s  failure to consider the grant of a posthumous  conditional pardon when the previous Home  Secretary’s decision not to grant a reprieve  had been clearly wrong amounted to an error  of law, the court, while making no order on  the application, would invite the Home   Secretary to reconsider his decision.

At page 452 of the Reports it was held as follows:

"The Court of Appeal (Cooke P, Gauk and  McKay JJ) dismissed the appeal but in doing  so it said ([1992] 3 NZLR 672 at 678, 681):

’The prerogative of mercy is a prerogative power  in the strictest sense of that term, for it is  peculiar to the Crown and its exercise directly  affects the rights of persons. On the other hand  it would be inconsistent with the contemporary  approach to say that, merely because it is a pure  and strict prerogative power, its exercise or non- exercise must be immune from  curial challenge.

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There is nothing heterodox in asserting, as  counsel for the appellant do, that the rule of law  requires that challenge shall be permitted in so  far as issues arise of a kind with which the  Courts are competent to deal \005\005... In the end  the issue must turn on weighing the competing  considerations, a number of which we have  stated. Probably it cannot be said that any one  answer is necessarily right; it is more a matter of  a value or conceptual judgment as to the place  in the law and the effectiveness or otherwise of  the prerogative of mercy at the present day. In  attempting such a judgment it must be right to  exclude any lingering thought that the  prerogative of mercy is no more than an  arbitrary monarchial right of grace and favour.  As developed it has become an integral element  in the criminal justice system, a constitutional  safeguard against mistakes.’

               xx                      xx                      xx              xx "Mr Pannick relies on this passage. He argues  that the prerogative of mercy is exercised by  the Home Secretary on behalf of us all. It is an  important feature of our criminal justice  system. It would be surprising and regrettable  in our developed state of public law were the  decision of the Home Secretary to be immune  from legal challenge irrespective of the gravity  of the legal errors  which infected such a  decision. Many types of decisions made by the  Home Secretary do involve an element of policy  (eg parole) but are subject to review.

We accept these arguments, The CCSU case made  it clear that the powers of the court cannot be  ousted merely by invoking the word ’prerogative’,  The question is simply whether the nature and  subject matter of the decision is amenable to the  judicial process".  

In "JUDICIAL REVIEW OF ADMINISTRATIVE ACTION"  (Fifth Edition) by the Retired Hon’ble the Lord Woolf it has  been noted as follows:

"Other former prerogative powers should not  any more, however, automatically be assumed  to be non-justiciable. It is noticeable that one  of the prerogative powers assumed by Lord  Roskill in the GCHQ case to be non- justiciable, the prerogative of mercy, has since  been judicially reviewed. In R. v. Secretary of  State for the Home Department. ex p Bentley,   the applicant applied for review of the Home  Secretary’s decision not to pardon her brother  who had been sentenced to death and hanged  39 years earlier. The applicant contended that  the Home Secretary had erred in law in his  approach to the issue in that he considered  that the grant of free pardon required the  finding that her brother was morally and  technically innocent, where the right question  to be asked was whether in all the

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circumstances the punishment imposed  should have been suffered. It was held that  the decision ought to be based upon accepted  public law principles and not be immune from  legal challenge, despite the element of policy  in the decision. The Home Secretary’s failure  to consider the grant of a posthumous pardon  when the previous Home Secretary’s decision  had been wrong was held to be a clear error of  law. The court broke new ground in this case,  guided only by a recent decision of the New  Zealand Court of Appeal".

In "THE CONSTITUTION OF UNITED STATES OF AMERICA" (Analysis and Interpretation) "Pardons and Reprieves"  have  been stated as follows:  

"The Legal Nature of a Pardon

       In the first case to be decided concerning  the pardoning power, Chief Justice Marshall,  speaking for the Court, said: "As this power  had been exercised from time immemorial by  the executive of that nation whose language is  our language, and to whose judicial  institution ours bear a close resemblance; we  adopt their principles respecting the operation  and effect of a pardon, and look into their  books for the rules prescribing the manner in  which it is to be used by the person who  would avail himself of it. A pardon is an act of  grace, proceeding from the power entrusted  with the execution of the laws, which exempts  the individual, on whom it is bestowed, from  the punishment the law inflicts for a crime he  has committed. It is the private, though  official act of the executive magistrate  delivered to the individual for whose benefit it  is intended, and not communicated officially  to the Court.... A pardon is a deed, to the  validity of which delivery is essential, and  delivery is not complete without acceptance.   It may then be rejected by the person to  whom it is tendered; and if it be rejected, we  have discovered no power in a court to force it  on him." Marshall continued to hold that to  be noticed judicially this deed must be  pleaded, like any private instrument.

In the case of Burdick v. United States,   Marshall’s doctrine was put to a test that  seems to have overtaxed it, perhaps fatally.  Burdick, having declined to testify before a  federal grand jury on the ground that his  testimony would tend to incriminate him was  proffered by President Wilson "a full and  unconditional pardon for all offenses against  the United States," which he might have  committed or participated in  connection with  the matter he had been questioned about.  Burdick, nevertheless, refused to accept the  pardon and persisted in his contumacy with  the unanimous support of the Supreme  Court. "The grace of a pardon," remarked  Justice McKenna sententiously, "may be only

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a pretense ... involving consequences of even  greater disgrace than those from which it  purports to relieve. Circumstances may be  made to bring innocence under the penalties  of the law. If so brought, escape by confession  of guilt implied in the acceptance of a pardon  may be rejected\005." Nor did the Court give any  attention to the fact that the President had  accompanied his proffer to Burdick with a  proclamation, although a similar procedure  had been held to bring President Johnson’s  amnesties to the Court’s notice.  In 1927,  however, in sustaining the right of the  President to commute a sentence of death to  one of life imprisonment, against the will of  the prisoner, the Court abandoned this view.  "A pardon in our days," it said, "is not a  private act of grace from an individual  happening to possess power. It is a part of the  constitutional scheme. When granted it is the  determination of the ultimate authority that  the public welfare will be better served by  inflicting less than what the judgment fixed."  Whether these words sound the death knell of  the acceptance doctrine is perhaps doubtful.   They seem clearly to indicate that by  substituting a commutation order for a deed  of pardon, a President can always have his  way in such matters, provided that  substituted penalty is authorised by law and  does not in common understanding exceed  the original penalty.          

       Coming to the factual position it is noticed that the  various materials were placed before the Governor when the  request for grant of pardon/remission was processed at  various levels. The views of the District level officials were  obtained. Since they formed the basis of impugned order, it is  relevant to take note of some interesting features.  The three  District level officials were Superintendent of Police, the  District Collector, Kunoor and the District Probation Officer.   Apart from that, the views of the Superintendent of jail,  Central Prison, Cherlapally were obtained. The Collector’s  report refers to the report given by the Superintendent of  Police and reproduces the same in the report contained in  letter dated 9.12.2004. He also refers the letter dated  8.12.2004 of the Revenue Divisional Officer who according to  him had indicated no objection to release of respondent No.2  on premature basis as his conduct and character was good  and he lead ordinary life during the period of his escort parole  from 19.5.2004 to 7.8.2004 and the free parole from  20.10.2004 to 6.11.2004.  Only on that basis the District  Collector recommended premature release.   

According to learned counsel for the State this was  sufficient as the Collector had to act on some material and he  acted on the reports of the Superintendent of Police and the  Revenue Divisional officer. The plea is clearly unacceptable.   The Collector does not appear to have made any independent  enquiry on his own.  The report of District Probation officer is  very interesting.  In his report he has stated that if he  (Respondent No.2) is prematurely released his life would be  safe because his wife is a sitting MLA and she is having a

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police security. Further he was having a strong hold in the  village and there is no opposition in Bramhanakotkur village.   Following portion of his report shows as to how extraneous  materials which had no relevance formed the foundation of his  report.

"The convict Gouru Venkata Reddy S/o  Janardhan Reddy, Central Prison Cherlapalli  belongs to Upper Caste Reddy’s family of  Brahmanakotkur (Village) Nandikotkur  Mandal and Taluk. The father of the convict  was Janardhan Reddy and mother was Gouru  Lakshmi Devi and during enquiry it is  revealed that both were dead. The grand  mother of convict Smt. Ratnamma is old, aged  and there is no male person in the house to  look after her. She desires that the convict  should come and provide medical treatment  to her.

In the past the convict contested in the  elections and was defeated with small margin.  During enquiry it is revealed that the convict  is Congress Worker and due to political  conspiracy he was defeated. In the elections  conducted later on the wife of convict Smt.  Saritha Reddy contested and was elected.  During enquiry it is revealed that the matters  mentioned in the application of the wife of the  convict are true. The convict has two sisters.   The deceased K. Rama Subbaiah and Ambi  Reddy belong to Nandikotkur village.  In this  murder case the convict is not involved but   due to political reasons his name was  implicated in the case by producing false  witnesses and sent to the Jail. But later they  realized their mistake and the family  members of the deceased are maintaining  cordial relations. During enquiry it is revealed  that there is no danger to the life of the  convict from the villagers and also there is no  danger to the villagers from the convict if the  convict is released as stated by the President  of the village Shri Shaik Ziauddin, Village  Secretary Sri Sanjanna, village elders Shri  Nagaswamy Reddy, Sri K. Venkata Rami  Reddy, Shri Khajamoinuddin and Sri Pathan  Moutali etc.

As seen from the past history of the  convict he is not a naxalite, dacoit, and  habitual offender. He was peacefully carrying  out agricultural activities and a good  Congress Worker. He used to provide  employment to a number of persons through  agriculture. It is also revealed that the  villagers are having good opinion on the  convict. "

       (underlined for emphasis)

Apart from apparently wrong statement made that  respondent No.2 was maintaining cordial relationship with the

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family members of the deceased, he has highlighted that he  was a "good Congress Worker".  Further there is an inference  that he was not involved in the murder was falsely implicated  and false witnesses were produced.  This inference on the fact  of this Court’s judgment is utterly fallacious.  The question of  his being a "good Congress Worker" has no relevance the  objects sought to be achieved i.e. consideration of the question  whether pardon/remission was to be granted. Equally  surprising is the statement to the effect that during enquiry it  was revealed that the convict is Congress worker and by  political conspiracy he was defeated in the elections conducted  earlier.     

The report of the Superintendent of Police is equally  interesting.  He has stated that there will be no reaction in  Brahmana Kotkur village and Nandikotkur town if the  prisoner releases on prematurely. The report is dated  6.12.2004.  Before the elections, the same officer had reported  that on account of respondent No.2’s release on parole, there  was likelihood of breach of peace and law and order if he visits  Nandikotkur Assembly Constituency.  The only reason why a  pariah becomes a messiah appears to be the change in the  ruling pattern.  With such pliable bureaucracy, there is need  for deeper scrutiny when power of pardon/remission is  exercised.     It appears that in the petition filed by respondent No.3  there is no mention about pendency of a Criminal case No.  411 of 2000. Learned counsel for the respondent No.1-State  submitted that though this fact was not mentioned by the  respondent No.3 in the petition yet the State Government  considered the effect of the pendency of that petition.  This  certainly is a serious matter because a person who seeks  exercise of highly discretionary power of a high constitutional  authority, has to show bona fides and must place materials  with clean hands.   

When the principles of law as noted above are considered  in the factual background it is clear that the irrelevant and  extraneous materials entered into the decision making  process, thereby vitiating it.   

       The order granting remission which is impugned in the  petition is clearly unsustainable and is set aside.  However, it  is open to the respondent No.1 to treat the petition as a  pending one for the purpose of re-consideration.  It shall be  open to the Governor to take note of materials placed before  him by the functionaries of the State, and also to make such  enquiries as considered necessary and relevant for the  purpose of ascertaining the relevant factors otherwise.  The  writ petitions are allowed to the extent indicated above. No  costs.