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. 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 committed an offence punishable under Section 162 of the Indian Penal Code. 2. 2. 329thly that you Accused-78 between August 1972and November 1973, at Madras in furtherance of the said agreement and conspiracy and in the course of the same transaction abetted Accused 1 to 74 bycorrupt or illegal means or other otherwise abusing their official position as public servants to obtain pecuniary advantage for yourselves and others to the tune of Rs.6,35,855-25 as set out in the Annexure to Charge No. 326 supra that you thereby committed an offence under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act (Central Act-II) 1947, read with Section 109, I. P. C., and within my cognizance. 3. 330thly, that you Accused-78 between November 1971 and November 1973, at the said place, in furtherance of the said agreement and conspiracy and in the course of the same transaction abetted Accused 1 to 74 by corrupt or illegal means or otherwise abusing their official position as public servants to obtain pecuniary advantage for yourselves and others to the tuneof Rs. 6,35,855-25 as set out in the annexure to charge No.326 supra and that you thereby committed an offence under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act (Central Act II) 1947 read with Section 109, Indian Penal Code and within my cognizance. 4. 331stly that you Accused-78 between August 1972 and August 1973 at Madras in furtherance of the said agreement and conspiracy and in the courseof the sametransaction habitually accepted obtainedfrom approver Kannappan for yourself gratification (other than the legal remuneration as a motive or rewardas mentioned in Sec. 161 of the Indian Penal Code) at the rate of Rs.2,000/- per month from August, 1972 to August, 1973 and in all making Rs.26,000/- and that you thereby committed an offence punishable under Section 5 (2) read with Sec. 5 (1) (e) of the Prevention of Corruption Act (Central Act II) 1947 and within my cognizance. 2. He approached the High Court under Section 482, Code of Criminal Procedure praying that the last four charges framed againsthim be quashed on the ground that he is not a public servant within the meaning of Section 21 ofthe Penal Code. No evidence in respect of any of these charges has so far been recorded. 2. He approached the High Court under Section 482, Code of Criminal Procedure praying that the last four charges framed againsthim be quashed on the ground that he is not a public servant within the meaning of Section 21 ofthe Penal Code. No evidence in respect of any of these charges has so far been recorded. The High Court has dismissed the petition holding that the appellant is a public servant within the comption of clause 12 (b)of Section 21 of the Penal Code. Hence this appeal. 3. We have partly heard thearguments of the learned counsel for the parties. The learned Advocate General has contended that cl. 10th of Section 21 of the Penal Code will also cover the case. The argument is that as a member of the Taxing Committee, the appellant was concerned with expenditure and preparation of budget and sponsoring proposals of financial character. It is submitted that evidence will be let to establish facts showing that the appellant is a public servant within the meaning of Section 21 of theCode and decision of this question at this stage when no evidence has at all been recorded, would be purely hypothetical and divorced from facts. We also feel that the question involved is a mixedquestion of law and fact. It requires evidence for its determination. We, therefore,think that the High Court was in error in deciding this question purely in the abstract without there being any evidence before it. 4. On thispreliminary ground we would allow this appeal, set aside the decision of the High Court and send the case back to the trial Court for further proceedings in accordance with law on all the charges framed by the trial Court against the appellant. We make it clear that the question as to make whether the appellant is or is not a public servant, is left open to be decided at the appropriate state. The case being old, the trial Court is directed to dispose it of with utmost expedition by undertaking proceedings preferably from day to day. Appeal allowed. For Citation : AIR 1976 SC 2299 =1976 Cri. L.J. 1755=1976 Cri. L.R. (SC) 55. Vikas Info Solutions Pvt. Ltd.