Pradip S/O Vishwanath Ghonge And Others vs State Of Mah. Thr. Pso, Ps Sindkhed Raja … on 13 December, 2024

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Bombay High Court

Pradip S/O Vishwanath Ghonge And Others vs State Of Mah. Thr. Pso, Ps Sindkhed Raja … on 13 December, 2024

2024:BHC-NAG:14229


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                     IN THE HIGH COURT OF JUDICATURE AT
                        BOMBAY NAGPUR BENCH, NAGPUR

                          CRIMINAL APPEAL NO. 675 OF 2023

                 APPELLANTS:      1.    Vaijnath s/o Laxman Ghonge,
                                        Aged about 32 years, Occupation: Service.

                                  2.    Karbhari s/o Yadavrao Ghonge,
                                        Aged about 61 Years, Occupation: Forest
                                        Labour. Both the appellants are r/o
                                        Bamkhed, Tah. Deulgaonraja and
                                        District Buldhana.

                                         ...V E R S U S...

                 RESPONDENTS       1.   The State of Maharashtra,
                                        through Police Station Officer,
                                        Police Station Sindkhed Raja,
                                        Tah. Sindkhed Raja, District Buldhana.
                                  2.    Sau. Seema Rajendra Jadhav,
                                        Aged about 28 years,
                                        Occupation: Business,
                                        R/o Bamkhed, Post Aland,
                                        Tah. Deulgaonraja and District Buldhana.
                                              AND
                               CRIMINAL APPEAL NO. 666 OF 2023
                 APPELLANTS:      1.    Vilas s/o Samadhan Ghonge,
                                        aged about 37 years,
                                        Occupation: Service - Teacher.


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                       2.    Mohan s/o Appa Ghonge,
                             aged about 48 years, Occupation: Clerk
                             Both the appellants are R/o Bamkhed,
                             Tah. Deulgaonraja and District Buldhana..
                              ...V E R S U S...
      RESPONDENTS       1.   The State of Maharashtra,
                             through Police Station Officer,
                             Police Station Sindkhed Raja,
                             Tah. Sindkhed Raja, District Buldhana.
                       2.    Sau. Seema Rajendra Jadhav,
                             Aged about 28 years,
                             Occupation: Business, R/o Bamkhed,
                             Post Aland, Tah. Deulgaonraja and
                             District Buldhana.
                                   AND
                    CRIMINAL APPEAL NO. 667 OF 2023
      APPELLANTS:      1.    Umesh s/o Anantha Ghonge,
                             aged about 17 years,
                             Occupation: Student.
                       2.    Pravin s/o Raghunath Ghonge,
                             aged about 31 years, Occupation:
                             Forest Student. Both the appellants are
                             R/o Bamkhed, Tah. Deulgaonraja and
                             District Buldhana..
                              ...V E R S U S...
      RESPONDENTS       1.   The State of Maharashtra,
                             through Police Station Officer,


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                            Police Station Sindkhed Raja,
                            Tah. Sindkhed Raja, District Buldhana.
                       2.   Sau. Seema Rajendra Jadhav,
                            Aged about 28 years, Occupation:
                            Business, R/o Bamkhed, Post Aland,
                            Tah. Deulgaonraja and District Buldhana.
                                   AND
                    CRIMINAL APPEAL NO. 676 OF 2023


      APPELLANTS:      1.   Pradip s/o Vishwanath Ghonge,
                            aged about 38 years, Occupation:
                            Agriculturist.
                       2.   Bharat s/o Ganpat Ghonge,
                            Aged about 50 years, Occupation:
                            Agriculturist.
                       3.   Gopal s/o Bharat Ghonge,
                            Aged about 20 years, Occupation:
                            Agriculturist.
                       4.   Ganesh s/o Kisan Ghonge,
                            Aged about 39 years, Occupation:
                            Agriculturist.
                       5.   Vivek s/o Samadhan Ghonge,
                            Aged about 39 years, Occupation:
                            Agriculturist.
                       6.   Santosh s/o Manikrao Ghonge,
                            Aged about 61 Years, Occupation:
                            Agriculturist.


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                                 7.     Vijay s/o Ramchandra Ghonge,
                                        Aged about 58 Years, Occupation:
                                        Agriculturist.
                                 8.     Bhagwat s/o Bharat Ghonge,
                                        Aged about 23 Years, Occupation:
                                        Agriculturist.
                                        All the appellants are R/o Bamkhed,
                                        Tah. Deulgaonraja and District Buldhana.
                                         ...V E R S U S...
      RESPONDENTS                 1.    The State of Maharashtra,
                                        through Police Station Officer,
                                        Police Station Sindkhed Raja,
                                        Tah. Sindkhed Raja, District Buldhana.
                                 2.     Sau. Seema Rajendra Jadhav,
                                        Aged about 28 years, Occupation:
                                        Business, R/o Bamkhed, Post Aland,
                                        Tah. Deulgaonraja and District Buldhana.
      --------------------------------------------------------------------------------------------
      Mr. Amol Jaltare counsel with Mr. N.B. Kalwaghe, counsel for
      appellants.
      Ms. H.N.Prabhu, APP for respondent/State.
      Mr. M .P. Kariya, counsel for respondent No. 2.
      --------------------------------------------------------------------------------------------

                       CORAM             : URMILA JOSHI-PHALKE, J.
                       DATE              : 13/12/2024

      1.               Heard.


      2.               Admit.

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3. Heard finally with consent of learned counsel

appearing for the parties.

4. By preferring these appeals under Section 14-A of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989, the appellants therein have challenged the

order passed by the Special Judge and Additional Sessions Judge,

Buldhana, rejecting the application for grant of anticipatory bail.

5. The appellants are apprehending the arrest at the

hands of police in connection with Crime No. 194/2023 registered

with Police Station Sindkhed Raja for the offences punishable

under Sections 143, 147, 452, 354, 354-B, 395, 324, 323, 427 and

read with Section 149 of the Indian Penal Code, 1860 and Section

3(1)(r), 3(1)(w)(i), 3(1)(s), 3(1)(t), 3(1)(zc), 3(2)(v), 3(2)(va)

of the Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The report is lodged by Seema Rajendra

Jadhav on an allegation that on 21/08/2023 around 8.00 p.m, the

accused Nos.1 to 5 came to her grocery shop adjacent to her

house and demanded the Gutkha packets, for which she denied.

On that count, they not only abused her but also caused the

damage to her grocery shop with a bamboo stick. The accused

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no. 1 lifted the shutter of her shop by his hand and again made a

demand of contraband Gutkha. On her denial, he got annoyed

and abused her in a filthy language and also snatched

Rs. 11,000/- from the cash box of the shop and also thrown the

grocery articles from the shop. It is further alleged that subsequent

to the act of the accused No. 1, the other accused also entered into

her shop by holding sticks in their hands and caused the damage

to her shop. The first incident happened on 21/08/2023,

thereafter all the villagers decided to settle the dispute, and

therefore, she has not lodged the report. However, subsequent to

the said incident on 01/09/2023 again, when her daughter was

about to proceed in a school in the vehicle of accused No. 16. The

accused No. 16 denied her the right to take in the vehicle by

saying that they are boycotting the community and also used the

words against her daughter, which insulted her and humiliated

her. They have also caused damage to the photo-frame of Dr. Baba

Saheb Ambedkar. On the basis of the said report, police have

registered the crime against the present appellants and other

co-accused. After registration of the crime, the appellants Vilas

Samadhan Ghonge and Mohan Appa Ghonge filed an application

for grant of anticipatory bail bearing no. 274/2023 before the

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Special Judge. The anticipatory bail was rejected, and therefore,

they have preferred the appeal No. 666/2023. The appellants,

Umesh Anantha Ghonge and Pravin Raghunath Ghonge, also filed

an application before the Special Judge bearing No. 275/2023,

the same was rejected, and hence, they have filed appeal No.

667/2023. The appellants, namely Vaijnath Laxman Ghonge and

Karbhari Yadavrao Ghonge, also filed an application bearing No.

273/2023, the same was rejected, and hence they filed appeal No.

675/2023. The accused, Pradip Vishwanath Ghonge, Bharat

Ganpat Ghonge, Gopal Bharat Ghonge, Ganesh Kisan Ghonge,

Vivek Samadhan Ghonge, Santosh Manikrao Ghonge, Vijay

Ramchandra Ghonge, and Bhagwat Bharat Ghonge, have also

filed an application for grant of bail bearing No.272/2023, the

same was also rejected, and therefore, they preferred an appeal

bearing No. 676/2023.

6. Heard learned counsel Mr. Jaltare for all the

appellants, who submitted that as far as the allegations regarding

the abuses on the caste are concerned, which are made against

accused No. 1 Deepak Vijay Ghonge, who is not an appellant in

the present case. The allegation as to the assault is made against

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Uddhav Madan Ghonge, who is also not the appellant, and the

allegation that the daughter of the informant was not taken in the

vehicle is made against the accused No. 16, who is also not the

appellant in the present case. He submitted that as far as the

appellants who have preferred these appeals are concerned,

general allegations are made, and that allegation is also not to the

extent of any abuses by them, by making any specific statements.

The omnibus statement is made against them, as far as the assault

is concerned or the abuses are concerned. He submitted that,

considering the recitals of the FIR, no prima facie case is made out

against the present appellants, and therefore, the bar under

Section 18-A of the Atrocities Act is not attracted.

7. He also invited my attention towards the fact that,

initially, there was a dispute between them on 21/08/2023,

however, the said dispute was settled by the villagers, and

therefore, as per the informant, no FIR was lodged. As far as the

second incident dated 01/09/2023 is concerned, wherein the

allegation is against only the accused No. 16, as far as the other

accused are concerned, they are not concerned with the same. The

allegation regarding the subsequent event that when she had been

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to the flour mill, at that time, the accused asked her not to bring

the grains to his flour mill, as they have boycotted the entire

community, is also against the accused No. 15, who is not the

appellant.

8. He submitted that considering the general allegations

are levelled against the appellants, who are before the court, and

their custodial interrogation is not required. He submitted that

general allegations are leveled against them that they have

assaulted the informant and her brother-in-law. However, this

allegation is to be taken into consideration in the light of the

medical certificate, which is placed on record. He submitted that

even taking into consideration the entire allegation as it is, that

the informant and her brother-in-law are assaulted by all the

appellants by using a stick in their hand, but the medical

certificate shows that only two injuries are sustained by them,

which are also simple in nature, and that the allegation is also

omnibus in nature. Thus, considering the same, no offence is

attracted, as far as the provisions of the Atrocities Act are

concerned.

9. He further submitted that as far as the allegation

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regarding the boycott on the community of the informant is

concerned, which is denied by the other community members by

filing an application before the Sub-Divisional Police Officer on

12/10/2022, wherein it is stated that Rajendra Baburao Jadhav

and Baban Asaram Navghire have threatened them, if they have

not supported them in a false case, they have to face dire

consequences, and therefore, they have apprehension regarding

any damage either to their property or their person. The said

application is signed by various persons. He submitted that, in the

light of the above application, it is crystal clear that only to

pressurize the present appellants, this false FIR is lodged,

moreover, this FIR is lodged to give a counterblast to the FIR

lodged by Kusum Vijay Ghonge.

10. He submitted that considering the entire scenario in

which the alleged incident allegedly committed by the present

appellants is concerned, no prima-facie case is made, and

therefore, the bar under Section 18-A of the Atrocities Act will not

be attracted. In support of his contention, he placed reliance on

the decision of Hitesh Verma Vs State of Uttarakhand and

Another, [(2020) 10 SCC 710].

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11. Per contra, learned APP submitted that the FIR lodged

by the informant in the present case, i.e. Seema, is the earlier FIR,

and the FIR lodged by Kusum is the subsequent FIR. She

submitted that the present appellants and the other co-accused

have formed the unlawful assembly, and in furtherance of the

common object of the said assembly, the informant and brother-in-

law were assaulted and also caused the damage to their property,

i.e. the Shop and the Grocery articles. The present appellants have

also practiced the untouchability after so many years of

independence. She submitted that, considering the act of the

present appellants, it reveals that they have treated the informant

and her family members in such a manner as to insult and

humiliate them, and therefore, the bar under Section 18-A of the

Atrocities Act will attract. She specifically stated there is a specific

allegation against the accused No. 18 Mohan, who is the appellant

here, and in view of that, she prays for dismissal of the appeals.

12. Learned counsel Mr. M.P. Kariya for the respondent

No. 2 submitted that the appellants and the peoples of their

community have declared socially boycott against the community

that belongs to the respondent No. 2, which resulted in the

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respondent No.2 and her family forcibly left the village and

residing in a rented premises in another village. Similarly, out of

15 families, one Kantabai Babasaheb Navghire, Ram Asaram

Navghire, and others have left the village because of following the

practice of untouchability by the appellants, who belong to the

upper caste. He submitted that respondent No. 2, through her

husband, has agitated the issue of untouchability and accordingly

informed the various authorities. Thus, considering the act of the

present appellants, which resulted into the humiliation and

intentional insult of the informant and her family members.

Therefore, the bar under Section 18-A of the Atrocities Act will

attract, and the appeal deserves to be dismissed.

13. After hearing both sides and on perusal of the recitals

of the FIR and the investigation papers, it reveals that crime No.

194/2023 was registered, on the basis of the report lodged by

Seema Rajendra Jadhav alleging that she is a resident of Bamkhed

Tah. Deulgaon Raja, District Buldhana. On the day of incident i.e.

on 21/08/2023, as per her allegation, the co-accused Deepak

Vijay Ghonge came to her shop and asked for the Gutkha, which

she has denied, and thereafter, accused Nos. 1 to 5 i.e. Deepak,

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Pradip, Bharat, Gopal and Vaijnath, entered her shop and caused

damage to her shop by sticks in their hands. As far as the

allegations as regards to the abuses on the caste are concerned,

they are levelled against the accused No. 1, Deepak Vijay Ghonge,

who is not the appellant in the case. The recitals of the FIR further

show that as far as the appellants before the Court are concerned,

there is an allegation against them. They have assaulted her by

means of stick and caused damage to her shop, as well as

assaulted her and her brother-in-law. The second incident alleged

by her is on 01/09/2023, wherein the allegations are levelled

against the accused Nos. 15 and 16. As far as the accused No. 1,

Deepak and Accused Nos.15 and 16 Gajanan and Parmeshwar, are

not the appellants in the present case. The investigation papers,

which are placed on record, which shows that the statements of

the other witnesses are also recorded during the investigation,

wherein also the similar allegations are levelled against the

accused Nos. 1, 15 and 16. As far as the present appellants, who

preferred these appeals, are concerned, there is general

allegations levelled against them, except accused No. 18 i.e.

Mohan Appa Ghonge. Against him, there is specific allegations

that he has informed the informant that they have boycotted her.

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Though it is submitted by the learned counsel for the respondent

that due to the conduct of the present appellants, the informant

and other community members were constrained to leave the

village, and they are staying in another house, which is denied by

the learned counsel for the appellants, who stated that they are

still residing in the same village. He has also placed reliance on

one application which is filed by the other community members

against the Bhagwan Asaram Navghire, wherein other community

members specifically alleged that they have forced them and

supported them in a false case and also threatened them,

otherwise they have to face the dire consequences. It is imperative

to note that none of the statements of the witnesses shows that

they are forced to leave the village, and they are staying in

another village. The statements of the witnesses are also silent, as

far as the boycott by the upper caste community is concerned.

Thus, it is apparent that there are omnibus allegations levelled

against the accused Nos. 2 to 7, 9 to 14, 17, and 18. It is well

settled that, when there is an omnibus allegation and no specific

allegations are levelled against the accused persons, the bar under

Section 18 the Atrocities Act will not attract.

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14. The constitutional validity of Section 18 challenged

before the Apex Court and while considering the same and

referring to various judgments, the Apex Court in the case of

Shajan Skaria Vs The State Of Kerala & Anr., in Criminal Appeal

No. 2622 Of 2024 (Arising Out Of Slp (Crl.) No. 8081 Of 2023)

Dated 23/08/2024, has observed that a plain reading of the above

provisions shows that there should be intentional insult, the

persons who belongs to the Scheduled Caste or Scheduled Tribes.

The ingredients of the offence are that;

a. Whoever not being a member of the Schedule Caste
or Scheduled Tribe;

b. Accused must intentionally insult or intimidate a
member of a Scheduled Caste or Scheduled Tribe;
c. Accused must do so with the intent to humiliate such
a person; and
d. Accused must do so at any place within public view.

15. As far as the second incident dated 01/09/2023 is

concerned, admittedly it is not within the public view. The

subsequent incident, which took place at the flour mill, is also not

within the public view. The offence under Section 3(1)(r) of the

Act would indicate the ingredient of intentional insult and

intimidation with an intent to humiliate a member of a Scheduled

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Caste or a Scheduled Tribe. All insults or intimidation to a person

will not be an offence under the Act unless such insult or

intimidation is on account of the victim belonging to Scheduled

Caste or Scheduled Tribe. The object of the Act is to improve the

socio-economic conditions of the Scheduled Castes and the

Scheduled Tribes as they are denied number of civil rights. Thus,

an offence under the Act would be made out when a member of

the vulnerable section of the society is subjected to indignities,

humiliations, and harassment.

16. The Hon’ble Apex Court in the case of Khuman Singh

vs State of Madhya Pradesh (2020) 18 SCC 763, held in a case for

applicability of Section 3(2)(v) of the Atrocities Act, the fact that

deceased belong to the Scheduled Caste or Scheduled Tribe would

not be enough to inflict the enhanced punishment. Therefore, the

offence under the Atrocities Act is not established, merely on the

fact that the informant is a member of the Scheduled Caste unless

there is an intention to humiliate a member of Scheduled Caste or

the Scheduled Tribe for the reasons that the victim belongs to the

such caste.

17. Moreover, while interpreting the expression “intent to

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humiliate” appearing in Section 3(1)(r) of the Act, 1989, the

Hon’ble Apex Court observed that the words “with intent to

humiliate” as they appear in the text of Section 3(1)(r) of the Act,

1989 are inextricably linked to the caste identity of the person

who is subjected to intentional insult or intimidation. Not every

intentional insult or intimidation of a member of a SC/ST

community will result into a feeling of caste-based humiliation. It

is only in those cases where the intentional insult or intimidation

takes place either due to the prevailing practice of untouchability

or to reinforce the historically entrenched ideas like the

superiority of the “upper castes” over the “lower castes /

untouchables”, the notions of ‘purity’ and ‘pollution’, etc. that it

could be said to be an insult or intimidation of the type envisaged

by the Act, 1989.

18. Thus, it is clear that from the plain reading of the

provision would show that any insult against a member of a

Scheduled Caste or Scheduled Tribe on the ground of

“untouchability” was punishable with imprisonment for a

maximum term of six months under the Civil Rights Act. With the

passage of time, it was realised by the legislature that the Civil

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Rights Act was not adequately sufficient to tackle caste-based

offences and the practice of “untouchability”, leading to the

enactment of the Act, 1989 introducing more stringent provisions

for combating such practices. Section 3(1)(r) of the Act, 1989

should, thus, be seen in the context of Section 7(1)(d) of the Civil

Rights Act.

19. Thus, basic ingredients for constituting an offence

under Section 3(1)(u) of the Act, 1989 are as (a) accused person

must not be a member of the Scheduled Caste or Scheduled Tribe;

(b) Accused must intentionally insult or intimidate a member of a

Scheduled Caste or Scheduled Tribe; (c) accused must do so with

the intent to humiliate such a person; and (d) accused must do so

at any place within public view.

20. In the light of the above observation, if the facts of the

present case are taken into consideration, admittedly there is an

allegation as to the untouchability as the abuses or insults against

some of the abuse. As far as the present appellants are concerned,

against them, the general allegations is levelled, that they have

assaulted the informant and other family members. As far as the

injury certificate is concerned, which shows that two persons

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stained the injury and i.e. also simple in nature. The allegation of

the abuses on the caste are not levelled against the present

appellants. Thus, prima-facie case is not made out against the

present appellants. It is well settled that when prima-facie case is

not made out against the accused, on perusal of the FIR, the bar

under Section 18A will not attract, and application for

anticipatory bail is mandatory.

21. In view of the above said provisions and by

considering the various judgments especially the judgment passed

in Prathvi Raj Chauhan vs Union Of India [(2020) 4 SCC 727 ],

wherein it is held that when prima-facie case is not made out, the

application for anticipatory bail is made out and the bar under

Section 18 will not attract. In view of that all the appeals deserves

to be allowed.

            a]     The criminal appeals are allowed.

            b]     The appellants (1) Vaijnath s/o Laxman Ghonge (2)

Karbhari s/o Yadavrao Ghonge (3) Vilas s/o

Samadhan Ghonge (4) Mohan s/o Appa Ghonge (5)

Umesh s/o Anantha Ghonge (6) Pravin s/o

Raghunath Ghonge (7) Pradip s/o Vishwanath

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Ghonge (8) Bharat s/o Ganpat Ghonge (9) Gopal s/

o Bharat Ghonge (10) Ganesh s/o Kisan Ghonge (11)

Vivek s/o Samadhan Ghonge (12) Santosh s/o

Manikrao Ghonge (13) Vijay s/o Ramchandra

Ghonge (14) Bhagwat s/o Bharat Ghonge (15) shall

be released anticipatory bail, in the event of arrest

the arrest, in connection with Crime 194/2023

registered with Police Station Sindkhed Raja for the

offences punishable under Sections 143, 147, 452,

354, 354-B, 395, 324, 323, 427 and read with

Section 149 of the Indian Penal Code, 1860 and

Section 3(1)(r), 3(1)(w)(i), 3(1)(s), 3(1)(t), 3(1)

(zc), 3(2)(v), 3(2)(va) of the Scheduled Caste and

Scheduled Tribes Prevention of Atrocities Act, 1989,

on executing P.R. Bond of Rs. 25,000/- each with one

solvent sureties in the like amount.

c] The order passed by the Additional Sessions Judge,

Buldana in Criminal Bail Application Nos. 273/2023,

274/2023, 275/2023, 272/2023 are quashed and set

aside.

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d] The appellants shall not induce, threat or promise

any witnesses who are acquainted with the facts of

the present case.

e] All the appellants excluding Umesh Anantha Ghonge

shall attend the concerned police station once in a

week on Sunday between 10.00 a.m. to 01.00 p.m.

till filing of the charge-sheet and they shall produce

the sticks, which they are holding and the said period

will be considered as their custody in view of Section

23(2) Bharatiya Sakshya Adhiniyam, 2023.

The Appeals are disposed of.

[URMILA JOSHI-PHALKE, J.]

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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 03/01/2025 14:52:47



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