EPURU SUDHAKAR AND ANR. versus GOVT. OF A.P. AND ORS.

Citation: [2006] SUPP. 7 S.C.R. 81 · Decided: 11-10-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

EPURU SUDHAKAR AND ANR. 
A 
v. 
GOVT. OF A.P. AND ORS. 
OCTOBER 11, 2006 
[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] 
B 
Constitution of India, 1950; Articles 72 and 161: 
Grant of pardon by President/Governor-Judicial Review-Scope of-
Held: Limited judicial review of the exercise/non-exercise of pardon power C 
by the President/Governor available in certain cases-Pardoning power 
could be exercised as an act of grace and humanity in proper cases-
Exercise of such power is an exercise in futility in the absence of reasons-
The Government could rescind or cancel the pardon when it come to know 
that it has been obtained by fraud/patent/misrepresentation/manifest mistake- D 
Jn the facts and circumstances of the case, it is clear that irrelevant and 
extraneous material entered into the decision making process, thereby 
vitiating it and facts about pendency of criminal cases not disclosed in the 
petition-Hence the impugned order granting remission is unsustainable 
and set aside-However, it is open to the Governor to make further enquiries 
as considered necessary for ascertaining relevant factors and the State E 
government could re-treat the petition as pending for re-consideration to 
decide the question of grant of pardon-Code of Criminal Procedure, 1973-
Sections 432 to 435-Penal Code, 1860-Ss. 54-55-General Clauses Act, 
1897-Ss.14 and 21. 
Father of Petitioner No.I and another person were allegedly murdered F 
by respondent No.2. The matter came up before this Court, which was disposed 
of by judgment dated 19.11.2003 altering conviction of respondent No.2 from 
one under Section 302 IPC to Section 304(1) read with Section 109 IPC and 
custodial sentence of 10 years' rigorous imprisonment was imposed. In the 
meantime, respondent No.3, wife of respondent no.2-convict, contested the G 
election to the Andhra Pradesh Assembly. She was elected as member of 
Legislative Assembly. On 14.5.2004 she made a representation for grant of 
parole to her husband, respondent No.2. It was granted and extended from 
time to time. Later, respondent No.3 made a representation to the State 
Government seeking pardon to her husband by exercise of power under Article 
81 
H 
82 
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R. 
A 161 of the Constitution. The Governor granted remission of the unexpired 
sentence to respondent No.2. Aggrieved, the son of the deceased filed a writ 
petition. 
The petitioner contended that the grant of remission/pardon to 
respondent no.2 was illegal as relevant materials were not placed before the 
B Governor, and thus, the order was passed by the Governor without application 
· of mind; that the factual scenario has not been placed before the Governor in 
the proper perspective; that 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 
C plea could not have been even considered as a basis for grant of pardon; and 
that since the grant of pardon is based on consideration of irrelevant materials 
and non-consideration of relevant materials, it is liable to be set aside. 
The respondent-State contended that the petition is the outcome of a 
political vendetta; that all relevant materials have been taken into account by 
D the Governor before passing the order granting remission; that the petitioner 
has confused between pardon and remission of sentence; and that since 
materials existed which warranted the grant of remission, no interference in 
the matter is called for. 
Partly allowing the petition, the Court 
E 
HELD: Per Arijit Pasayat, J. 
1.1. 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 
F 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." [93-D, E) 
G 
American Jurisprudence, Second Edition, Volume 59, referred to. 
1.2. 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. 199-BI 
Biddle v. Perovich, 71 L. Ed. 1161, referred to. 

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