JUDGMENT

KRISHNA IYER, J.:—Shri L. C. Goyal, counsel for the petitioner, with the art of brinkmanship, has come up at the last moment as he has done on former occasions, to pray for stay of execution of his clients death sentence. Men cling to precious life and try out all strategies to save it and perhaps that counts for this motion before us.

2. The prisoner was sentenced to death as long ago as 1969 and the conviction and sentence have been confirmed right up to highest Court years ago. Indeed, he has moved mercy petitions and consequential writ petitions more than once and has managed to avoid the executioner till now. On the last occasion the same Advocate pleaded that his clients mercy petition was not being forwarded by the Superintendent of the Jail and prayed that he may be directed by this Court to forward it to the President. This Court did so and suspendedthe hanging for a time as a last chance.

3. It now transpires that an application for clemency by way of communication has been made by the Prisoner and that it has been forwarded and is under consideration of the President of India. This Court has no jurisdiction to deal with the petition which is in the seisin of the President of India and has not power therefore to pass any order, interim or other. Counsel has to move, it at all, the competent authority, viz., the President for avoiding the lethal noose for the nonce. The larger power always implies incidental or ancillary powers.

4. Human life is anoble gift and hanging to death,however legally sanctioned, may sound inhuman, subject of course, to the conspectus of factors relating to the criminal and the crime. Nevertheless, the situation here is aggravated by the distressing circumstance that the death sentence has been gruesomely hovering over his headfor around six years. Legal justice belongs to the Court but compassionate communication belongs to the top executive. Being functus officio, we have no alternative but to say no to the prayer for stay of execution. So, we dismiss the petition, leaving the prisoner to move the President for any interim orders, if he is so advised. This is the last word of this Court.

Petition dismissed.

For Citation : AIR 1976 SC 2299

SUPREME COURT OF INDIA

11111

(From : Madras)

19-1-1976.

R.S. SARKARIA AND S. MURTAZA FAZL ALI, JJ.

Thiru V. Thanigachalam, Appellant

Versus

State of T.N., Respondent.

Criminal Appeal No. 350 of 1975

Decided on 19-1-1976.

(A) Criminal P.C. (2 of 1974), S.482 - Petition for quashing certain charges on ground that petitioner, a member of Taxing Committee of Municipal Council, is not a public servant - Question whether he is a public servant or not, is a mixed question of law and fact - Dismissal of petition by deciding that question in the abstract without there being any evidence before Court, erroneous

Penal Code (45 of 1860), S.21.

Decision of High Court (Mad.), Reversed. (Para 3)

The Judgement of the Court was delivered by

JUDGMENT

SARKARIA, J.:—The appellant is a Councillor representing Perambur Division of the Madras Corporation. He was also a member of the Taxing Committee ofthe Municipal Council. He along with other accused is standing trial in the Court of the Fifth Additional Special Judge, Madras City on four charges namely :

"1. 328thly, that you Accused 78 between November 1971 and November 1973 at Madras, in furtherance of the said agreement and conspiracy and in the course of the same transaction accepted or obtained from Approver Kannappan gratification to the tune of Rs. 26,000/- as a motive or reward for inducingby corrupt or illegal means the public servants, to wit, the officials of the Electrical Department, Central Accounts Department Cash Section, Revenue Department of the Corporation of Madras to do or forbear from doing officials acts, to wit, prepare, process, negotiate and encash for disbursements bogus muster rolls relating to the employment of temporary labourers in the Electrical Department of the Corporation of Madras and that you thereby c