Epuru Sudhakar
& Anr Vs. Govt. of A.P. & Ors [2006] Insc 638 (11 October 2006)
Arijit
Pasayat 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 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 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
(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
(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 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 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.
(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 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-
(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." 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 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 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 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 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 in pursuance of the treaty-making powerthe 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 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 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:
"the
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 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) "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;
(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 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:
"if
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 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 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.A pardon procured by false and
fraudulent representations or by intentional suppression 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.
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 ... 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 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 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." 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 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 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.
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