THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION NO.14209 OF 2003 ORDER: This case presents a shocking incident of an accused convicted by the highest Court of the State of Andhra Pradesh escaping the arm of the law and evading arrest to avoid suffering of imprisonment in the prison for the period to which he is sentenced. As the facts in this case unfold, it becomes very clear that criminals can still escape the law with the connivance of law enforcement agencies, even though such criminal has been found to have violated criminal law. The silver line in the dark cloud, however, has been that when this Court refused permission to withdraw the writ petition at a later stage, and things moved with a lightening speed ending in bringing the convict to the book. All has ended well. The third respondent herein is a businessman. His concern M/s.Vikas Trading Corporation, Adoni, in Kurnool District, purchased 126 bags of ground nut seeds worth about Rs.2,28,747/- (Rupees two lakh twenty eight thousand seven hundred forty seven only) under two invoices, from M/s.Jayalaxmi Traders, Chowdepalli, in Chittoor District. The third respondent paid Rs.33,747/- (Rupees thirty three thousand seven hundred forty seven only). For the balance amount, he issued two cheques in favour of the petitioner firm. The cheques were dishonoured. The petitioner firm filed a criminal case being C.C.No.98 of 1991 on the file of the Court of the Additional Judicial Magistrate of First Class (JFCM), Punganur in Chittoor District, under Section 420 of the Indian Penal Code, 1908 and Section 138 of Negotiable Instruments Act, 1881 (for short, the Act). The third respondent approached this Court and initiated proceedings for quashing the criminal case. This Court quashed the proceedings under Section 420 of IPC but directed the learned Magistrate to proceed with the case under Section 138 of the Act. The joint trial was conducted in C.C.Nos.97 and 98 of 1991. The Court of the Additional JFCM, Punganur acquitted the third respondent. The petitioner firm filed criminal appeals being Crl.A.Nos.32 and 33 of 1997. This Court by order dated 27.12.1998 allowed both the appeals in the following manner. In the result, both the appeals are allowed and the orders of acquittal in both the cases are set aside. I convict the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentence him to undergo Simple Imprisonment for a period of six (6) months and to pay a fine of Rs.20,000/- (Rupees twenty thousand only) in C.C.No.97/1991 and in default to pay the fine, to suffer further Simple Imprisonment for three (3) years. Further, I convict the accused for the offence punishable under Section 138 of Negotiable Instruments Act and sentence him to undergo Simple Imprisonment for a period of six (6) months and to pay a fine of Rs.20,000/- (Rupees twenty thousand only) in C.C.No.98/1991 and in default to pay the fine to suffer further simple imprisonment for three (3) months. The sentences of imprisonment imposed in both the cases are ordered to run concurrently. The petitioner herein, thereafter, filed applications before the Court of Additional JFCM for issuance of warrants against the third respondent. When the same were returned, he filed criminal petition No.2962 of 1999. By order dated 20.07.1999, this Court allowed the said petition. The operative portion of the said order reads as under. The learned counsel for the petitioner contends and rightly so that though there is no specific direction in the judgment of the High Court to the Magistrate concerned to issue N.B.W., the very fact that the appeal against acquittal was allowed and the accused was convicted for the offence under Section 138 of the Negotiable Instruments Act and was sentenced to imprisonment as stated above in itself is sufficient for the learned Magistrate to issue a warrant for complying with the judgment of this Court. The return of the petitioner herein is not justified. Hence, the Judicial First Class Magistrate, Punganoor is directed to issue an appropriate warrant for the arrest of the accused in C.C.No.98 of 1991 and commit him to prison for undergoing the sentence as awarded to him in the judgment of the High Court in Crl.Appeal No.32 of 1997. This petition is accordingly ordered. The learned Magistrate issued Non Bailable Warrant (NBW) for arrest of the third respondent after the orders of this Court in criminal petition No.2962 of 1999. It is, however, not executed immediately. The petitioner alleges that the third respondent is a powerful man both politically and financially and that local police at Adoni are influenced by him. The Police are not arresting and bringing the third respondent before the Court of JFCM, Punganur in spite of several applications and representations by the petitioner. The petitioner also made representations to the Hon’ble the Chief Justice of this Court as well as A.P.State Legal Services Authority, who advised the petitioner to approach an advocate for all his grievances. The petitioner asserts that the third respondent is hiding in the surrounding places of Adoni town or in Kurnool District. He has also business at Bangalore and Hyderabad cities. The Police have knowledge about the whereabouts of third respondent and wantonly, are not executing the pending N.B.W. The learned Additional JFCM, Punganur sent a letter on 26.06.2000 to the first respondent to execute N.B.W. pending against the third respondent but no action was taken. The learned Magistrate issued another direction on 17.04.2003 directing the execution of N.B.W., in vain. The petitioner, therefore, filed the present writ petition praying to declare the action of the Superintendent of Police and Station House Officer, Adoni in not executing the N.B.W. against third respondent in C.C.No.98 of 1991 on the file of the Court of the Additional JFCM, Punganur as illegal and arbitrary. The writ petition initially came up before this Court on 16.07.2003. On 23.07.2003, learned Government Pleader for Home sought time to file a counter affidavit. The matter went several adjournments. On 28.12.2003, first respondent filed a counter affidavit stating that the third respondent is indebted to several persons and due to pressure of creditors, he left Adoni town about seven years ago and did not come back, that the N.B.W. against the third respondent issued by the Court of JFCM was handed over to Station House Officer, Adoni I Town Police Station as the third respondent reside within the limits of the said Police Station. All efforts were made to execute N.B.W. but the third respondent is absconding from the town for about seven years. It is further stated that the Inspector of Police, Adoni Circle, personally took up the matter as directed by the first respondent and after receiving directions from this Court, all efforts are being made to collect reliable information to know the whereabouts of the third respondent. The first respondent also sought time for executing N.B.W. against the third respondent. The Assistant Sub Inspector of Police, Adoni I Town Police station, filed counter affidavit on 31.10.2003. In this counter, it is stated that the N.B.W. against the third respondent could not be executed as he is absconding for seven years, and therefore, the Police are moving petition before the Court of JFCM, Punganur to issue notices in the name of sureties so that the address of the third respondent can be traced out for taking necessary action to execute N.B.W. The matter was listed before this Court again on 06.04.2004, when the learned Government Pleader for Home sought time to get instructions in the matter. Therefore, while granting time, this Court directed respondents 1 and 2 to take all necessary steps to arrest the third respondent in execution of N.B.W. given by the learned Additional JFCM, Punganur. On 27.01.2004, it was brought to the notice of the Court that a special team headed by Inspector of Police, Adoni Circle, has been constituted to apprehend the third respondent. Therefore, the matter was adjourned to enable the head of the special team to file an affidavit. The first respondent filed additional counter affidavit, which was sworn on 27.01.2004. In this affidavit, it is stated that the Inspector of Police, Adoni Circle, deputed police constables to execute N.B.W, that in spite of best efforts the third respondent could not be found as he is absconding from the town and that the Inspector of Police enquired with local people, in vain. It is further stated that a special team consisting of one Assistant Sub Inspector of Police and two police constables was formed on 09.01.2004 to execute N.B.W, that the said team enquired with the father, two brothers and sister and three relatives of the third respondent but they could not give any information about the third respondent. Again a special team was constituted on 21.01.2004 with Inspector of Police, Adoni Town Circle, Sub Inspector of Police, Adoni III Town Police Station, one Assistant Sub Inspector of Police, and two police constables, that the special team enquired with close relatives, a brother and brothers-in-law of the third respondent and recorded statement. The special team also made enquiries about the third respondent with the father, mother and the neighbours of the locality where the father of the third respondent has commercial shops given on rent and that all the enquiries proved futile. It is also stated that the third respondent did not attend the funeral ceremonies or marriage functions of his close relatives including the marriage of son of T.G.Venkatesh, Ex-M.L.A., Kurnool, who was also enquired by the special team on 26.01.2004 and that the special team is keeping a watch on the relatives of the third respondent to know his whereabouts. Adoni police also published in the newspapers offering cash reward for the informers about the whereabouts of third respondent. The first respondent also prayed this Court to grant three months time for executing the warrant. In view of the additional counter affidavit filed by second respondent, the matter was adjourned and the head of the special team was directed to file an affidavit. On 10.02.2004, the Inspector of Police, who was heading the special team filed an affidavit stating the efforts made by the Inspector of Police, Assistant Sub Inspector and other constables in tracing the convict. It is also stated that Eenadu telugu daily also reported that manhunt is being pursued by the police to nab the third respondent. After perusing the same, this Court again adjourned the case directing the Inspector of Police of the special team to file further report. When the case was called, the Inspector of Police who was heading the special team, Sri Subbanna of Adoni Town Circle filed an affidavit that the special team has made hectic efforts to trace the third respondent and that N.B.W. would be executed at the earliest possible time. After hearing the matter at length, the matter was reserved for judgment. Nevertheless, while going through the record, this Court felt that there was an inordinate delay on the part of the Police in executing the N.B.W. issued by the Court of the Additional Judicial Magistrate of First Class against the third respondent. Therefore, the Court suo motu reopened the matter on 23.06.2004. On that day, the following order was passed. The matter was heard and circulated to me. However, while going through the record, this Court came to the opinion that the respondents are not taking adequate steps to apprehend the accused in the crime, convicted by the High Court of A.P. This Court, therefore, is of the opinion that the Director General and Inspector General of Police, Government of Andhra Pradesh may file an affidavit after conducting an enquiry if necessary. It would be in the interest of justice and rule of law if the Director General and Inspector General of Police, personally looks into the matter. The Director General and Inspector General of Police may file affidavit within a period of three (3) weeks. Government Pleader for Home, Sri K.Ramesh, is also directed to communicate the copy of the order to the Director General and Inspector General of Police. Office shall communicate this order to D.G.P. Post on 14.07.2004. On 14.07.2004, when the case was called, the Director General and Inspector General of Police, Government of Andhra Pradesh, filed an affidavit along with a copy of the report of the Inspector General of Police (law and order), Rayalaseema Region. The affidavit of the Director General of Police threw up startling revelations. It is stated therein that the N.B.W. issued by the Criminal Court was received by Superintendent of Police, Kurnool on 21.03.1999 and he, in turn, sent the warrant to Inspector of Police, Adoni on 23.09.1999 with instructions to execute the warrant. The Inspector of Police, Adoni, Sri R.Narayana Rao endorsed the warrant to Sub Inspector of Police, Adoni I Town, Sri Muralidhar, with instructions to execute the warrant. The said Sub Inspector, however, did not make any entries of the warrant in the process register maintained in Adoni I Town Police Station from 1.1.1999 onwards. The warrants were not traced till 2003. The Director General of Police also stated that there is inaction on the part of Sri Muralidhar in not executing warrant from 23.09.1999 and misplacing them and that action is being initiated against all those officers responsible for the same. It is further stated that the Director General of Police directed constitution of a special team consisting of a Deputy Superintendent of Police, a Sub Inspector of Police, a head constable and three constables. He also asserted that renewed efforts are being made to trace the convict in C.C.Nos.97 and 98 of 1991. It is only after this Court directed the Director General of Police to file an affidavit, only after such affidavit is filed, the suspicion of this Court that the third respondent hoodwinked law and made mockery of justice process proved correct. The third respondent cannot be allowed to hijack the criminal law, the police and criminal judicial process in this manner. Therefore, this Court so as to monitor the efforts of the Police to trace the third respondent and produce before the learned Magistrate to commit to prison, adjourned the matter. The third respondent presumably smelt this and invented a novel method (or shall we say a knave method) to give a quietus to this case, and to the criminal appeals decided by this Court as well as the criminal complaint, by which the petitioner set the criminal judicial process in motion. The third respondent got a petition being W.P.M.P.No.5213 of 2004 filed by the petitioner seeking permission of the Court to withdraw the writ petition itself. In the affidavit accompanying the said miscellaneous petition, it is stated by the petitioner that old aged parents of the third respondent went to his native place and prayed to withdraw the case and offered the amount due to the petitioner, that he accepts an amount of Rs.1,00,000/- (Rupees one lakh only) by way of demand drafts and therefore he sought permission to withdraw the writ petition. Indeed a clever method to avoid imprisonment and lead an invisible life till death, is invented. It is well settled that in case of public law remedy, under Order XXIII Rule 1 of Code of Civil Procedure, 1908, a compromise is not applicable and a writ petition can either be dismissed or allowed and there cannot be any withdrawal of the writ petition or compromise of the same, unless the public law Court permits to do so. A reference may be made to the recent judgment of the Supreme Court in … extract Therefore, this Court refused permission to withdraw the writ petition. Curiously, the petitioner herein filed writ appeal being W.A.No.1057 of 2004 against the order of this Court dated 23.06.2004 whereby and whereunder this Court directed the Director General of Police to file an affidavit. A Division Bench of this Court by order dated 26.07.2004 dismissed the writ appeal observing that it is for the learned single Judge to consider the request for withdrawal of the writ petition. Yet again, the parents of the third respondent filed writ appeal being W.A.No.1213 of 2004, against the orders of this Court dated 14.07.2004 directing the Director General and Inspector General of Police (Rayalaseema Region) to file an affidavit regarding the progress of the efforts to trace the third respondent. This Court while observing that the parents of the third respondent cannot be harassed while executing the warrant against the third respondent, disposed of the writ appeal. On 13.12.2004, the Director General and Inspector General of Police filed an affidavit to the effect that a special team headed by Sri K.Subrahmanyam, special divisional officer along with concerned Inspector and staff was formed and that thy were directed to execute N.B.W., which was not executed till that day. It is also stated therein that a warning memo was issued to Sri K.Subrahmanyam informing that if he fails to execute the warrant, departmental action will be initiated against him for the lapse. The Director General of Police prayed three weeks time for executing the warrant. Accordingly, the matter was adjourned and again when the matter was called. On 29.12.2004, the case was listed again. The learned Government Pleader for Home informed that he has received telegram dated 26.12.2004 from Sri P.Rama Krishna, Inspector of Police, Adoni, informing that the third respondent has been arrested at Madanapalli in connection with N.B.W. issued by the Additional Judicial Magistrate of First Class, Punganur in C.C.No.97 of 1991 and 98 of 1991. The matter was adjourned to enable the learned Government Pleader to file a memo to that effect and also produced a copy of the telegram. On 30.12.2004, the learned Government Pleader filed a memo along with a copy of the telegram issued by Sri P.Rama Krishna on 26.12.2004 informing that he (Inspector of Police) arrested the third respondent at Madanapalli in execution of the N.B.W. issued by the Criminal Court. As observed in the beginning of this judgment, this case raised an important aspect of law as to the efficacy of criminal law if a person accused of an offence and convicted as such avoids arrest and avoids imprisonment sentenced by the criminal Court. Such an incident not only makes justice delivery system insignificant and renders justice ineffective. Legal justice requires that an offender convicted of a crime must suffer the imprisonment as otherwise there would be social anarchy. People would contravene the law with impunity without any attending punishment for violating the law. The very foundations of democracy and rule of law would be shaken and that is the reason why Courts strive to treat all persons before criminal law as equal. Whether one is rich or poor, whether one is in power or powerless, the criminal law is equally applied to all equally. ‘Be you ever so high, but the law is above you’, is the signature theme of rule of law that loudly and silently (as well) echoes in Indian Constitutional context. The purpose of the Constitution itself is to equalize the men (and women) before law. Equal protection of laws and equality before law does not make any distinction between the Ruler and the Ruled when it comes to enforcing the criminal sanctions. If a convict with money power as well as political power can avoid the punishment imposed by the highest Court of the State, the Court which imposed such punishment cannot be a mute spectator or dumb listener to be soothed by high caliber forensic oratory of the council at the altar of justice. The Court must and ought to take a serious view of such bizarre incidence: be it one in million. Of course, the law makers and law enforcers must willingly assist the Court in angling the convict avoiding and dodging the law makers, the law enforcers and the law interpreters (Judges and Courts). This Court does not feel compelled to quote copiously from the books of philosophers on the concept of justice nor excerpt legal prose from binding as well as persuasive precedence available in plenty in Indian Jurisprudence as well as elsewhere. Nevertheless to render the reading of this judgment somewhat holistic, a reference may be made to judgment of the Constitution Bench of the Supreme Court of India in K.Veeraswami v Union of India, a case in which no other than a person appointed under Presidential constitutional warrant as Judge as well as Chief Justice to the highest Court of State of Tamil Nadu was accused of an offence under Prevention of Corruption Act, 1947. In concurring opinion, L.M.Sharma, J (as his Lordship then was) in paragraph 86 (of SCC) made the following observations. …It is, therefore, not safe to assume that the Act intended to make in its application any discrimination between the lower and the higher judiciary. Protection to the public servant in general is provided under Article 311 and the interest of the subordinate judiciary is further taken care of by the High Court, and this along with the provisions regarding previous sanction shields them from unjustified prosecution. Similarly protection is available to the High Court and Supreme Court Judges through the provisions of Article 124(4) and (5) of the Constitution. So far as this aspect is concerned, the two categories of Judges – High Court and Supreme Court Judges on the one hand and the rest on the other have not been treated by the law differently. There cannot be any rational ground on the basis of which a member of a higher judiciary may be allowed to escape prosecution while in identical circumstances a member of the subordinate judiciary is tried and convicted. Such an interpretation of the Act will militate against its constitutional validity and should not, therefore, be preferred. In Vineet Narain v Union of India, the following observations, which are apt, were made. The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: “Be you ever so high, the law is above you.” Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the government agencies. In Vineet Narain (II) v Union of India, the Supreme Court observed as under. The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as "decision making officers". The question is whether any distinction can be made for them for the purpose of investigation of an offence of which they are accused. Obviously, where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision making process, there is no rational basis to classify them differently. As this Court started monitoring the efforts of the Police entrusted with execution of the N.B.Ws issued by the Additional Judicial Magistrate of First Class, Punganur startling facts came to light. The Superintendent of Police, the second respondent herein repeatedly made statements before this Court on oath to the effect that efforts are being made to nab third respondent in execution of the N.B.Ws. Curiously, important lapse on the part of Police, especially, the police personnel manning I Town Police Station were withheld. When this Court directed the Chief of Police (DGP), an affidavit was filed by