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Jayalaxmi Traders Vs. Superintendent of Police and ors. - Court Judgment

SooperKanoon Citation

Subject

Criminal

Court

Andhra Pradesh High Court

Decided On

Case Number

Writ Petition No. 14209 of 2003

Judge

Reported in

2005(1)ALD(Cri)428; 2005(2)ALT322; 2005CriLJ2907

Acts

Code of Criminal Procedure (CrPC) , 1973 - Sections 388(2) and 418(2); Negotiable Instruments Act, 1881 - Sections 138; Criminal Law; Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 1

Appellant

Jayalaxmi Traders

Respondent

Superintendent of Police and ors.

Appellant Advocate

S.S. Bhatt, Adv.

Respondent Advocate

G.P. for Home for Respondent Nos. 1 and 2

Excerpt:


.....with instructions to execute the warrants. a copy of this judgment shall therefore be sent to the learned additional jfcm, punganur, as well as the superintendent of central prison, kadapa, where the third respondent is lodged, as stated by the learned government pleader or to such other superintendent of central prison for due compliance. 27. before parting with this case, this court reiterates that so as to avoid misuse of the judicial process as well as legal process by convicts like third respondent with the connivance of law enforcement agency, appropriate steps need be taken by the director general and inspector general of police, government of andhra pradesh, by issuing necessary standing orders in this regard......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 (sic. months). 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.4. the petitioner herein, thereafter, filed.....

Judgment:


ORDER

V.V.S. Rao, J.

Introduction:

1. 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 evading1 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, things moved with a lightening speed ending in bringing the convict to the book.

Fact of the Matter:

2. Fact of the matter in brief is as follows. The third respondent herein is a businessman. His concern, M/s. Vikas Trading Corporation, Adoni, in Kurnool District, purchased 126 bags of groundnut seeds worth about Rs. 2,28,747/- (Rupees two lakh twenty-eight thousand seven hundred and forty seven only) under two invoices, from M/s. Jayalaxmi Traders, Chowdepalli, in Chittoor District, the petitioner herein. 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 criminal cases being C.C. Nos.97 and 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, 1860 (IPC) 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 Judicial Magistrate to proceed with the case under Section 138 of the Act. A joint trial was conducted in C.C. Nos.97 and 98 of 1991.

3. 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 (sic. months). 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.

4. 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 being Crl.P. No. 2962 of 1999. By order dated 20-7-1999, 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 NBWS, 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, Punganur 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.

5. The learned Magistrate issued Non-Bailable Warrants (NBWs) for arrest of the third respondent in accordance with the orders of this Court in Criminal Petition No. 2962 of 1999. It was, 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 Additional 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 redressal of his grievances. The petitioner asserts that the third respondent is hiding in the surrounding places of Adoni town or in Kurnool District. He also has business at Bangalore and Hyderabad cities. The police have knowledge about the whereabouts of third respondent and wantonly, they are not executing the pending NBWs. The learned Additional JFCM, Punganur sent a letter on 26-6-2000 to the first respondent to execute NBWs pending against the third respondent but no action was taken. The learned Magistrate issued another direction on 17-4-2003 directing the execution of NBWs, in vain. The petitioner, therefore, filed the present writ petition praying to declare the action of the Superintendent of Police and the Station House Officer, Adoni in not executing the NBWs against third respondent in C.C. No. 98 of 1991 on the file of the Court of the Additional JFCM, Punganur, is illegal and arbitrary.

Superintendent of Police assures Court:

6. The writ petition initially came up before this Court on 16-7-2003. On 23-7-2003, learned Government Pleader for Home sought time to file a counter-affidavit. The matter underwent 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 NBWs 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 resides within the limits of the said Police Station. All efforts were made to execute NBWs, 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 NBWs against the third respondent.

7. 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 NBWs 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 third respondent can be traced out for taking necessary action to execute NBWs.

Special Team fails to apprehend Convict:

8. The matter was listed before this Court again on 6-4-2004, 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 NBWs given by the learned Additional JFCM, Punganur. On 27-1-2004, 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.

9. The first respondent filed additional counter-affidavit, which was sworn on 27-1-2004. In this affidavit, it is stated that the Inspector of Police, Adoni Circle, deputed police constables to execute NBWs, 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 9-1-2004 to execute NBWs, 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 21-1-2004 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 statements. 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 26-1-2004 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 of whereabouts of third respondent. The first respondent also prayed this Court to grant three months time for executing the warrant.

10. 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 10-2-2004, 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 launched by 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 NBWs would be executed at the earliest possible time.

Court monitors Police efforts:

11. After hearing the matter at length, the matter was reserved for Judgment. While going through the record, this Court felt that there was an inordinate delay on the part of the police in executing the NBWs issued by the Court of the Additional JFCM against the third respondent and that allegations of petitioner regarding role of third respondent in non-execution of NBWs, appear to be correct. Therefore, the Court suo motu reopened the matter on 23-6-2004. 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 14-7-2004.

Director and Inspector General of Police, A.P., admits lapses:

12. On 14-7-2004, 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 brought out startling revelations. It is stated therein that the NBWs issued by the criminal Court were received by Superintendent of Police, Kurnool on 21-3-1999, who, in turn, sent them to Inspector of Police, Adoni on 23-9-1999 with instructions to execute the warrants. The Inspector of Police, Adoni, Sri R. Narayana Rao endorsed the warrants to Sub-Inspector of Police, Adoni I Town, Sri Muralidhar, with instructions to execute the warrants. The said Sub-Inspector, however, did not make any entries of the warrants 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 warrants from 23-9-1999 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.

13. The affidavit filed by Director General of Police confirms suspicion of this Court that the third respondent hoodwinked law and made mockery of 'justice process'. 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 Judicial Magistrate for committing to prison, adjourned the matter. The third respondent presumably smelt this and invented a novel method (or shall we say a naive 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 accepted 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. In 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. This Court refused permission to withdraw the writ petition.

Convict's desperate attempts to avoid arrest:

14. Curiously, the petitioner herein filed writ appeal being W.A.No. 1057 of 2004 against the order of this Court dated 23-6-2004, whereby and where under this Court directed the Director General of Police to file an affidavit. A Division Bench of this Court by order dated 26-7-2004 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 14-7-2004 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.

Warning by Director General of Police and arrest of Convict:

15. 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, Sub-Divisional Officer, along with concerned Inspector and staff was formed and that they were directed to execute NBWs, which were 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 warrants, departmental action will be initiated against him for the lapse. The Director General of Police prayed three weeks time for executing the warrants.

16. 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 NBWs issued by the Additional JFCM, Punganur in C.C. Nos.97 and 98 of 1991. The matter was adjourned to enable the learned Government Pleader to file a memo to that effect and also produce 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 NBWs issued by the criminal Court.

Some Lessons for Future:

17. 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 as 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 powerful or powerless, the criminal law is equally applied to all equally.

18. '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).

Case Law:

19. 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 precedents available aplenty. A reference may however be made to judgment of the Constitution Bench of the Supreme Court of India in K. Veeraswami v. Union of India, : (1992)IILLJ53bSC . 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.

20. In Vineet Narain v. Union of India, : [1996]1SCR1053 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.

21. In Vineet Narain (II) v. Union of India, : 1998CriLJ1208 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.

Sequence of Events:

22. Let us again notice sequence of events in this case. As this Court started monitoring the efforts of the Police entrusted with execution of the NBWs issued by the Additional JFCM, Punganur startling facts came to light. The Superintendent of Police, the first respondent herein repeatedly made statements before this Court on oath to the effect that efforts are being made to nab the third respondent in execution of the NBWs. Curiously, facts regarding lapse on the part of the 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 him sworn on 13-7-2004. In this it is stated as under:

I submit that the Superintendent of Police, Kurnool received the warrants in this case on 21-3-99 and he in turn sent the warrants to Inspector of Police, Adoni Town on 23-9-99 with instructions to execute the warrant through a Memo No. C2/8511/99, dated 21-9-99. Sri R. Narayana Rao, the then Inspector of Police, Adoni, endorsed them to the then Sub-Inspector, Adoni I Town Sri Muralidhar with instructions to execute the warrants. The said Sub-Inspector received the warrants but did not make any entries of the warrants in the process register maintained in Adoni I Town PS from 1 -1 -99 onwards. Thereafter the warrants were not traced till 2003. Thus there is inaction on the part of the SI Adoni Town PS Sri Muralidhar in not taking steps for execution of warrants from 23-9-99 onwards and also misplacing of the NBW. I submit that action is being taken against the persons responsible for the above lapses.

23. Admittedly, the NBWs issued by the criminal Court at Punganur were received on 21-3-1999 and the same were sent by the Office of the Superintendent of Police to Sri R. Narayana Rao, Inspector of Police, Adoni for due execution. In turn, the Inspector of Police endorsed the same to Sri Muralidhar, Sub-Inspector of Police, I Town PS, Adoni, with instructions to execute the warrants. At this stage, the NBWs issued by the Court to arrest the third respondent vanished and according to D.G.P., the warrants were traced only in 2003 presumably after this Court started monitoring the matter taking a serious view. It is more starting to know that the NBWs sent by the Court were not even entered in the process register maintained by I Town Police Station from 1-1-1999. This calls for necessary steps in the Police Department to make necessary corrections in so far as execution of NBWs issued by the criminal Courts or this Court for apprehending the convicts/accused to justice. Obviously, some one in the Police Department helped the third respondent to avoid arrest. This Court takes a serious view of the matter but refrains from issuing any further directions because as submitted by the learned Government Pleader, the D.G.P. has ordered an enquiry against all those persons responsible.

24. The trial Court acquitted the third respondent. On Appeal, this Court reversed the order of the trial Court and convicted the third respondent sentencing him to undergo simple imprisonment for a period of six months and pay fine of Rs. 20,000/- (Rupees twenty thousand only) in C.C. No. 97 of 1991. This Court also imposed simple imprisonment for a period of six months and a fine of Rs. 20,000/- (Rupees twenty thousand only) in C.C. No. 98 of 1991. Pursuant thereto, the learned Additional JFCM issued NBWs to commit the third respondent to prison to undergo the sentence imposed by this Court. The third respondent avoided the execution of NBWs. In all these efforts, the police helped the third respondent and this is objectionable and legally impermissible.

25. Section 388 and Section 418 of the Code of Criminal Procedure, 1973 (Cr.P.C), read as under:

388. Order of High Court on appeal to be certified to lower Court:-(1) Whenever a case is decided on appeal by the High Court under Chapter, it shall certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and if such Court is that of a Judicial Magistrate other than the Chief Judicial Magistrate, the High Court's judgment or order shall be sent through the Chief Judicial Magistrate; and if such Court is that of an Executive Magistrate, the High Court judgment or order shall be sent through the District Magistrate.

(2) The Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court, and, if necessary, the record shall be amended in accordance therewith.

418. Execution of sentence of imprisonment:- (1) Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by Section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined and unless the accused is already confined in such jail or other place, shall forward him to such jail, or other place, with the warrant-

Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the Court may direct.

(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in Sub-section (1), the Court shall issue warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest.

26. A plain reading of Sub-section (2) of Section 388 of Cr.P.C, would show that every Court subordinate to High Court shall pass appropriate orders as are conformable to the judgment of High Court. Under Sub-section (2) of Section 418 of Cr.P.C, when accused sentenced to imprisonment is not present in the Court, the Court has to issue a warrant for his arrest and the sentence shall commence on the date of his arrest. In this case, as the third respondent was arrested on 26-12-2004 and therefore the sentence of simple imprisonment for sixth months would commence from that date and the third respondent has to pay an amount of Rs. 20,000/- (Rupees twenty thousand only) as fine in C.C. No. 97 of 1991 and another sum of Rs. 20,000/- (Rupees twenty thousand only) in C.C. No. 98 of 1991, in default of which, he has to suffer further simple imprisonment for three months. A copy of this judgment shall therefore be sent to the learned Additional JFCM, Punganur, as well as the Superintendent of Central Prison, Kadapa, where the third respondent is lodged, as stated by the learned Government Pleader or to such other Superintendent of Central Prison for due compliance.

Conclusion:

27. Before parting with this case, this Court reiterates that so as to avoid misuse of the judicial process as well as legal process by convicts like third respondent with the connivance of law enforcement agency, appropriate steps need be taken by the Director General and Inspector General of Police, Government of Andhra Pradesh, by issuing necessary standing orders in this regard. A copy of this judgment, therefore, be communicated to the Director General of Police for appropriate action in the matter.

28. The writ petition, with the above observations and directions is accordingly disposed of.


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