Judgment

KRISHNA IYER, J. :- If survival after death may aptly describe any litigative phenomenon, the present review proceeding may well quality for that quaint claim. The relief of review relates to the death penalty imposed upon the petitioner by the trial Court, confirmed in appeal, and dismissed even at the stage of special leave by this Court. In the ordinary course, judicial finality has thus been affixed on the capital sentence so awarded although Presidential clemency, which has been sought and negatived, may still be open under Article 72 of the Constitution. Mercy, like divinity, is amenable to unending exercise but in this mundane matter it is for the Head of State to act and not for the apex Court.

2. Sombre sentencing is the Fifth Act in the tragedy of a murder trial and, for the Judges of the SC, assumes a grim seriousness and poignant gravity since the petitioners final appeal for judicial commutation, if rejected, may perhaps prove imminently fatal to his life. Even so, when we chronicle the events connected with the judicial proceedings in this Court it will be realised that our review power has repeatedly been invoked in vain and naturally a further exercise of the same power must be justified by the compelling pressure of fresh circumstances within the limits of the law. The nature of the judicial process, even at the tallest tower, is such that, to use Cardozos elegant expressions, a judge even when he is free, is still not wholly free; he is not to innovate at pleasure; he is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness; he is to draw inspiration from consecrated principles. Where the judges values and those prevailing in society clash, the Judge must, in theory, give way to the objective right.

3. The focus, therefore, must turn on the existence of grounds of manifest miscarriage of justice unavailable on the earlier occasions. Before that, a brief reference may be made to the criminal facts.

4. A treacherous murder of a tender school-body the petitioner, the circumstances of which were so heartless and heinous, terminated condignly at the trial Court and the High Court, the extreme penalty having been visited on the offender for his horrendous killing. This Court refused special leave to appeal, drawing the drak curtain on the criminal proceedings. The petitioner struggled to extricate himself from the executioner by a sequence of desperate steps. On his behalf, a motion for re-hearing the special leave petition was fruitlessly made to this Court. A review petition was made again to this Court in vain. Yet another, out of same motive but with modified reliefs, was made and dismissed. Then followed an application for directions regarding remand of the case of the Court of Session for reconsideration of the sentence in the light of Section 235 (2) of the Code of Criminal Procedure, 1973. Dismissal of this proceeding did not deter the petitioner from persisting in moving this Court. That is how the present review petition has been put in on his behalf by his father.

5. Mercy petitions to the President punctuated the court proceedings but they too were turned down. The convict, nevertheless, clung on and, an stated ealire, his pathetic persistence in the plea for commutation has been pressed before us by counsel on two scores. He has urged that a decision of this Court in Shanta Singh v. State of Punjab, Criminal Appeal No. 230 of 1976, D/- 17-8-1976 (reported in AIR 1976 SC 2386) of which he was not aware at the earlier stages entitled him to a remand to the Sessions Court for reconsideration of the sentence of death. Secondly, he has also pressed upon us personal and social circumstances which have received judicial approval as justifying the imposition of the lesser sentence of life imprisonment even where the offence of murder has been made out.

6. In the ordinary course, the supplicants forensic battle for life must be repelled by us since this Court has refused