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[Cites 16, Cited by 0]

Rajasthan High Court - Jodhpur

Gyan Bahadur Chhetri And Anr vs Union Of India And Ors on 9 February, 2024

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

    [2024:RJ-JD:5139]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
                        S.B. Civil Writ Petition No. 4413/2017

     1.      Gyan Bahadur Chhetri S/o Shri Heera Bahadur, Posted At
             3 Mechanized Infantry Battalion, C/o 56 Apo.
     2.      Deepak Singh S/o Shri Narayan Singh, Posted At 524 Asc
             Battalion, C/o 56 Apo.
                                                                          ----Petitioners
                                           Versus
     1.      Union Of India Through Secretary, Ministry Of Defence,
             New Delhi.
     2.      The Chief Of The Army Staff, Army Hqs, Sena Bhawan,
             New Delhi.
     3.      The General Officer Commanding, 24 Infantry Brigade, C/
             o 56 Apo.
     4.      The        Commanding         Officer,       3     Mechanized      Infantry
             Battalion, C/o 56 Apo.
     5.      The Commanding Officer, 524 Asc Battalion, C/o 56 Apo.
                                                                        ----Respondents


    For Petitioner(s)            :     Mr. K.K. Shah
    For Respondent(s)            :     Mr. Mukesh Rajpurohit, Dy. SG a/w
                                       Mr. Uttam Singh Rajpurohit
                                       Mr. Govind Chandiramani, Capt. (OIL
                                       Legal), Army.



          HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                        Judgment

Reportable

    Reserved on 29/01/2024
    Pronounced on 09/02/2024

    1.    This petition under Article 226 of the Constitution of India

    has been preferred claiming the following reliefs:


                "It is, therefore, most respectfully prayed that this
          writ petition may kindly be allowed with costs and by


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      issuance of an appropriate writ, direction or order the
      impugned      show     cause        notices        dt.     31.03.2017
      (annex.7) may kindly be quashed and set aside. It is
      further prayed that the finding and sentence awarded
      by the GCM after revision may kindly be directed to be
      treated as confirmed.
            Any other order may also kindly be passed which
      appears to be just in favour of the petitioner."

2.      Brief facts of the case, as placed before this Court by

learned counsel for the petitioners, are that the petitioners, while

being posted at Army Units located at Bikaner, the General Court

Martial (GCM) proceedings were initiated against them by the

respondent      no.3-General        Officer      Commanding          vide        order

26.05.2016. The charge-sheet dated 19.05.2016 was served upon

the petitioners, alleging two charges against the petitioners; first

charge was under Section 69 of the Army Act, 1950 (hereinafter

referred as to 'Act of 1950') along with Section 34 of IPC, and the

second charge was under Section 63 of the Act of 1950 alongwith

Section 34 of IPC.

2.1. Thereafter, the GCM proceedings were started on 13.06.2016

and    continued    upto    02.11.2016;           after      completion     of    the

proceeding, the petitioners were found 'not guilty' of the first

charge, while 'found guilty, of the second charge, whereupon the

petitioners were convicted and sentenced to undergo rigorous

imprisonment for a period of 7 days.

2.2. Thereafter, the aforesaid finding and the conclusion of award

of sentence was submitted before the Confirming Authority for

confirmation of the same, but the said Authority did not confirm

the finding in regard to the first charge and the sentence awarded



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pursuant to the GCM proceedings, while sending the proceedings

for revision vide order dated 24.12.2016. After the said order, the

GCM reassembled on 13.01.2017, and thereafter, upon conclusion

of the proceedings, the order dated 16.01.2017 was passed,

whereby though the petitioners were again 'not found guilty' of

the first charge, but the sentence awarded in regard to the second

charge was enhanced from 7 days rigorous imprisonment to 2

months and 29 days rigorous imprisonment, and the sentence was

announced on 16.01.2017.

2.3. Thereafter, the aforesaid finding and the enhanced sentence

were sent for confirmation and the same were confirmed vide the

order dated 08.03.2017; after confirmation, the sentence was

promulgated and the extract thereafter was taken at Bikaner by

the Units of the petitioners on 27.03.2017 and 18.03.2017

respectively. Subsequently, the respondents issued the impugned

show cause notice dated 31.03.2017 under Section 20 (3) of the

Act of 1950 read with Rule 17 of the Army Rules 1954 (hereinafter

referred to as 'Rules of 1954') for dismissal of the petitioners from

services.

2.4. After filing of the instant petition, wherein, the show cause

notice dated 31.03.2017 was challenged, the respondents issued

yet another show cause notice dated 31.07.2021, which was

sought to be brought on record by the petitioners as Annexure-8

with an application for listing of the case for immediate hearing on

stay petition.

2.5. Thus, in the above view of the matter, the petitioners are

now laying challenge to the aforementioned show cause notices




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dated 31.03.2017 and 31.07.2021, claiming the afore-quoted

reliefs.

3.    Learned counsel for the petitioners submitted that the

petitioners were already tried during the Court Martial proceedings

for the aforementioned charges, and were found 'not guilty' of the

first charge, but were found 'guilty' of the second charge; now,

the subsequent impugned show cause notice dated 31.07.2021 is

nothing but an act subjecting the petitioners to double jeopardy,

which is apparent on face of the record.

3.1. Learned counsel further submitted that the proceedings were

confirmed by the competent authority and the sentence was

promulgated         to   both     the     petitioners,        but     the    subsequent

impugned show cause notice dated 31.07.2021 reveals that the

conclusion of the proceedings as regards the first charge was not

confirmed by the concerned authority. Learned counsel also

submitted that as per Section 160 of the Act of 1950, Confirming

Authority    can     send     the     proceeding          back       for   revision,   but

thereafter, it has no option, but to confirm the finding and

sentence given by the GCM.

3.2. Learned counsel further submitted that as per Section 153 of

the Act of 1950, the sentence awarded by the GCM is not valid

unless the same is confirmed by the Competent Authority, and if

the said authority does not agree with the finding and sentence

awarded by the GCM, then it can send the proceedings for revision

back to the GCM for consideration afresh. As per learned counsel,

in the present case, the revision order was passed and then the

Confirming Authority was having no option, other than confirming




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the said order, and therefore, the impugned action of the

respondents is not justified in law.

3.3. Learned counsel also submitted that the petitioners were

held to be 'not guilty' of the first charge, and after more than five

months, the Confirming Authority is bent upon to declare the

petitioners 'guilty' of the same charge, while taking the impugned

action against the petitioners, which is not sustainable in the eye

of law being amounting, amongst others, to double jeopardy.

3.4.   In support of such submissions, learned counsel relied upon

the following judgments:-

a)     Union of India & Ors. Vs Harjeet Singh Sandhu (2001) 5 SCC

593;

b)     Miner Marvel Jelly Vs Union of India (Writ Petition No. 37710

of 1995 decided on 05.09.2001) passed by the High Court of

Karnataka.

4.     On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioners, submitted that the present petition is

not maintainable, as after coming into force the Armed Force

Tribunal Act, 2007, the appropriate remedy for the petitioners to

challenge the impugned show cause notices lies before the Armed

Forces Tribunal (AFT).

4.1. It was further submitted that both the aforementioned

offences forming party of the aforesaid charges have been

committed by the petitioners, while performing the duties of Co-

driver and Driver respectively, of a School Bus at Bikaner Military

Station. It was also submitted that the finding on 'not guilty' of the

first charge was not justified because the said charge was

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pertaining to an offence of heinous nature, and thus, the retention

of the petitioners in service was undesirable. Hence, the impugned

show cause notice dated 31.03.2017, which is part of an

administrative action under the Section 20 (3) of the Act of 1950

was justified in law.

4.2. It was also submitted that as per Rule 70 of the Rules of

1954, the Confirming Authority has the option of confirming as

well as non-confirming the findings of the GCM. In furtherance to

the same, the confirming authority also has an option to send the

proceedings for revision as provided under Section 160 of the Act

of 1950, and the said option can be excised only once by the

Competent Authority.

4.3. It was further submitted that the Confirming Authority while

exercising the powers under Rule 70 of the Rules of 1954

confirmed the finding and sentence on second charge only, and

refused to confirm the finding on the first charge, and therefore,

the finding and sentence in respect of the first charge was not

confirmed and the same was invalid in terms of Section 153 of the

Act of 1950.

4.4. It was also submitted that the scheme of the Army Act and

Rules makes it amply clear that action of dismissal or removal

from service in respect of a person other than an officer, under

Section 20 of he Act of 1950 read with Rules 17 of the Rules of

1954 is an administrative action, and therefore, impugned action

of the respondents is justified in law.

4.5.   In support of such submissions, learned counsel relied upon

the following judgments:-




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a)    Union Of India & Ors. Vs. Harjeet Singh Sandhu (2001) 5

SCC 593;

(b)   Sanjay Marutirao Patil Vs. Union of India & Ors. (2020) 13

SCC 474;

(c) Chief of Army Staff & Ors. Vs. Major Dharam Pal Kukrety

(1985) 2 SCC 412;

5. In rejoinder arguments, learned counsel for the petitioners

submitted that presently the AFT, Jaipur is not functional, as there

are no members posted. It was further submitted that sometimes

the members came on temporary duty for 5 days in a month and

they are not sitting at Jodhpur Bench of the Tribunal since July,

2016, and therefore, in absence of the functioning of the AFT, the

present petitioners cannot be rendered remediless.

5.1. Learned counsel also submitted that once the revision has

taken place by the GCM and fresh finding/sentence was passed,

the same cannot be reviewed again and the Confirming Authority

has to confirm the same, and if the Confirming Authority does not

wish to confirm the said finding/sentence after revision, then it

can submit the proceeding to the Higher Authority for further

necessary action.

6.    Heard learned counsel of the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

7.    This    Court   observes         that      the     petitioners    faced    the

proceedings in question while being posted at Army Units located

at Bikaner, whereafter, the charge-sheet was served upon the

petitioners, charging the petitioners as above. After completion of

the proceedings in question, the petitioners were found to be 'not

guilty' of the first charge, while being found to be 'guilty' of the

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second charge, and were ordered to undergo the imprisonment as

above.

7.1. Thereafter, the aforesaid proceedings were submitted before

the Confirming Authority for confirmation, but the same were not

confirmed, and the respondents sent the proceeding for revision

vide order dated 24.12.2016. After the said order, the GCM

reassembled, and upon reconsidering the matter, passed the order

dated 16.01.2017 to the effect that the petitioners are not found

guilty of the first charge, but found guilty of the second charge

and awarded the enhanced sentence, as mentioned above.

Thereupon, the aforesaid sentence was sent for confirmation and

the same was confirmed as regards the second charge only.

Subsequently, the respondents issued the impugned show cause

notice dated 31.03.2017 seeking the explanation of the petitioners

regarding the charge in question and as to why their services be

not terminated on count of the first charge.

8.    This Court further observes that as revealed from the charge

sheet dated 19.05.2016, the petitioners were facing two charges

and the GCM was initiated in regard to the said charges. The said

charges are reproduced as hereunder:
First Charge
Army Act Section 69: COMMITTING A CIVIL OFFENCE, THAT IS TO SAY,
read with section 34 of AGGRAVATED SEXUAL ASSAULT, CONTRARY TO
the Indian Penal Code SECTION 10 OF THE PROTECTION OF CHILDREN FROM
                        SEXUAL OFFENCES ACT, 2012
                    In that they, together,
                    at Bikaner Military Station, on 30 September 2015, with
                    sexual intent, touched the genitals of Miss XYZ, aged 03
                    years and 05 months daughter of Havildar ABC, thereby
                    committed an aggravated sexual assault.


Second Charge
Army Act Section 63: AN OMISSION PREJUDICIAL TO GOOD ORDER AND
read with section 34 of MILITARY DISCIPLINE
the Indian Penal Code
                    In that they, together,


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                      at Bikaner Military Station, on 30 September 2015, having
                      come to know that Miss XYZ, aged about 03 years and 05
                      months had been left out in the school bus, improperly
                      omitted to report the same to the school authorities and
                      parents of the child.

9.    At this juncture, it is considered appropriate to reproduce the

relevant portions of the judgment rendered by the Hon'ble Apex

Court in the case of Sanjay Marutirao Patil (Supra) as

hereunder-:


     "6.1. At the outset, it is required to be noted that in the
     present case, the appellant has been dismissed from service by
     the Commander, Respondent 3 herein, while exercising powers
     under Section 20 of the Army Act read with Rule 17 of the
     Army Rules. It is the case on behalf of the appellant that as
     earlier he was subjected to the Summary Court Martial for the
     very charges of misconduct for which the order of dismissal has
     been passed and earlier the Summary Court Martial passed an
     order of reduction in rank, the subsequent order of dismissal
     passed by Respondent 3 herein in exercise of powers under
     Section 20 of the Army Act is bad in law and would be violative
     of the principle of double jeopardy.
     6.2. On the other hand, it is the case on behalf of the
     Department that power of dismissal under Section 20 of the
     Army Act vested with the Chief of Army Staff and other officers
     is an independent power and the two sections, Sections 20 and
     71 of the Army Act, are, therefore, mutually exclusive. While
     considering the submission on behalf of the Department that
     power under Section 20 of the Army Act is an independent
     power vested with the Chief of Army Staff and other officers,
     the decision of this Court in Harjeet Singh Sandhu [Union of
     India v. Harjeet Singh Sandhu, (2001) 5 SCC 593 : 2001 SCC
     (L&S) 891] is required to be referred to and considered.
     .......

6.4. In light of the aforesaid observations and the law laid down by this Court, the order of dismissal dismissing the appellant from service which was passed by Respondent 3 herein in exercise of power under Section 20 of the Army Act and its legality is required to be considered. (Downloaded on 12/02/2024 at 08:48:14 PM) [2024:RJ-JD:5139] (10 of 16) [CW-4413/2017]

8. However, it is required to be noted that at the relevant time, the aforesaid lapses/charges were not considered to be fraudulent in nature and the appellant was tried by Summary Court Martial for the said lapses/charges under Section 63 of the Army Act. Thereafter, the appellant was inflicted with the penalty of reduction in rank. Nothing is on record that the order passed by the Summary Court Martial by which the appellant was reduced in rank was even confirmed by the Chief of the Army Staff in exercise of powers under Section 164 of the Army Act. Therefore, it cannot be said that the order passed by the Summary Court Martial by which the appellant was inflicted with the penalty of reduction in rank attained finality on being confirmed by the competent authority (in the present case the Chief of the Army Staff). Therefore, considering the observations made by this Court in paras 24 to 27 (more particularly, para 27) in Harjeet Singh Sandhu [Union of India v. Harjeet Singh Sandhu, (2001) 5 SCC 593 : 2001 SCC (L&S) 891], it was open for the competent authority to exercise powers under Section 20 of the Army Act read with Rule 17 of the Army Rules. The power vested with the Chief of the Army Staff and conferred under Section 20 of the Army Act is an independent power available and for which the procedure under Rule 17 of the Army Rules is required to be followed, however, subject to the restrictions as observed by this Court in para 27 in Harjeet Singh Sandhu [Union of India v. Harjeet Singh Sandhu, (2001) 5 SCC 593 : 2001 SCC (L&S) 891]. Meaning thereby that only in a case where the final verdict of guilty or not guilty pronounced by a Court Martial has been confirmed by the competent authority and has attained finality, the power to proceed under Section 19 read with Rule 14 or Section 20 read with Rule 17 shall not be available to be exercised. In other words, so long as a final verdict of guilty or not guilty pronounced by a Court Martial and confirmed by the competent authority as to be effective is not available, the power to proceed under Section 19 read with Rule 14 or Section 20 read with Rule 17, as the case may be, exists and remains available to be exercised. (Downloaded on 12/02/2024 at 08:48:14 PM) [2024:RJ-JD:5139] (11 of 16) [CW-4413/2017] Therefore, in the facts and circumstances of the case and in the absence of any confirmation of the order passed by the Summary Court Martial by which he the appellant was reduced to rank, Respondent 3 herein was justified in exercising the power under Section 20 read with Rule

17. At this stage, it is required to be noted that while exercising the power under Section 20 of the Army Act, the only procedure which is required to be followed would be under Rule 17 of the Army Rules, namely, a person who is sought to be dismissed or removed from service has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service. In the present case, such an opportunity has been given to the appellant and therefore the proper procedure has been followed before dismissing the appellant from service, in exercise of powers under Section 20 of the Army Act. 9.1. It is also considered appropriate to reproduce the relevant portions of the judgment rendered by the Hon'ble Apex Court in the case of Union Of India & Ors. Vs. Harjeet Singh Sandhu (Supra) as hereunder-:

"27. Section 127 was to be found in the Army Act as originally enacted which provided that a person convicted or acquitted by a Court Martial could be tried again by a criminal court for the same offence or on the same facts subject to previous sanction of the Central Government. The provision was deleted by Act 37 of 1992 [The Army (Amendment) Act, 1992]. This deletion is suggestive of the legislative intent to confer finality to the finding and sentence of Court Martial subject to their being confirmed and not annulled. Power to confirm finding and sentence of Court Martial and the power to annul the proceedings on the ground of being illegal or unjust, both provisions read together indicate that the finding and sentence of Court Martial if legal and just have to be ordinarily confirmed but (Downloaded on 12/02/2024 at 08:48:14 PM) [2024:RJ-JD:5139] (12 of 16) [CW-4413/2017] they may be annulled on the ground of illegality or unjustness. An obligation is cast on the confirming authority to examine the legality and justness of the proceedings before confirming them. Questions of correctness, legality and propriety of the order passed by any Court Martial and the regularity of any proceedings to which the order of Court Martial relates can be raised by way of petition under Section 164. Once the finding and the sentence, if any, have been confirmed, the Court Martial being a Special Tribunal dispensing military justice, it would not be permissible to exercise additionally the power conferred by Section 19 read with Rule 14 and to inflict a penalty thereunder if the Court Martial has not chosen to inflict the same by way of punishment under Section 71. To permit such a course would be violative of the principle of double jeopardy and would also be subversive of the efficacy of the court-martial proceedings, finding and sentence. So long as a final verdict of guilty or not guilty, pronounced by a Court Martial and confirmed by the competent authority so as to be effective is not available, the power to proceed under Section 19 read with Rule 14(2) exists and remains available to be exercised."

10. This Court also observes that after conclusion of the disciplinary proceedings/Court Martial proceedings against the petitioners, the sentence in question was ordered, as per Rule 67 of the Rules of 1954 and the said sentence was announced and made subject to the confirmation by the competent authority;, thereafter the said finding and sentence was sent for confirmation to the Confirming Authority and the said Authority confirmed the said sentence as per Rule 70 of the Rules of 1954.

The said Rules 67 & 70 are reproduced as hereunder:- (Downloaded on 12/02/2024 at 08:48:14 PM)

[2024:RJ-JD:5139] (13 of 16) [CW-4413/2017] "67. Announcement of sentence and signing and transmission of proceedings.
(1) The sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The sentence will be announced as subject to confirmation.

70. Confirmation.

Upon receiving the proceedings of a general or district court-martial, the confirming authority may confirm or refuse confirmation, or, reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings."

11. This Court further observes that the Confirming Authority at the time of confirmation may once revise the finding and sentence and send the same for revision under Section 160 of the Act of 1950. This Court also observes that the finding and sentence cannot be held as valid unless it is confirmed by the Confirming Authority as per Section 153 of the Act of 1950.

The said Section 153 is reproduced as hereunder-:

"153. Finding and sentence not valid, unless confirmed.
No finding or sentence of a general, district or summary general, court- martial shall be valid except so far as it may be confirmed as provided by this Act.
160. Revision of finding or sentence.
(1) Any finding or sentence of a court- martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the Court, if so directed by the con- firming authority, may take additional evidence.
(2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.
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[2024:RJ-JD:5139] (14 of 16) [CW-4413/2017] (3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the Court shall proceed with the revision, provided that, if a general court- martial, it still consists of five officers, or, if a summary general or district court- martial, of three officers."

12. This Court also observes that in the present case, the petitioners were not found guilty of the first charge, but were found guilty of the second charge; even after revision order as passed by the Confirming Authority, the Confirming Authority vide order dated 08.03.2017 confirmed the finding and sentence only on the second charge, while finding on the first charge was not confirmed by the Confirming Authority as the same is reflected in Annexure R/1 to the reply filed on behalf of the respondents.

The order dated 08.03.2017 is reproduced hereunder:-

"CONFIRMATION MINUTE BY GENERAL OFFICER COMMANDING, 24 INFANTRY DIVISION THE CONFIRMING AUTHORITY IN GENERAL COURT MARTIAL IN RESPECT OF NUMBER 14934738W (LANCE NAIK) GYAN BAHADUR CHHETRI OF 3 MECHANISED INFANTRY ATTACHED TO 190 MEDIUM REGIMENT
1. I confirm the finding on the second charge but do not confirm the finding on the first charge (on revision) of the Court.
2. I confirm the sentence (on revision) awarded by the Court.
Signed at Bikaner this Eighth day of March 2017 sd/-
(BS Dhanoa) Major General (Downloaded on 12/02/2024 at 08:48:14 PM) [2024:RJ-JD:5139] (15 of 16) [CW-4413/2017] General Officer Commanding 24 Infantry Division"

13. This Court further observes that after non-confirmation of the finding on the first charge, the respondents exercised the power under Section 20 of the Act of 1950 read with Rule 17 of the Rules of 1954 in issuing the impugned show cause notice and seeking the explanation of the petitioners as to why their services be not terminated. This Court also observes that only the finding and sentence on second charge was confirmed, which attained finality, but on count of non- confirmation of the finding on the first charge not attaining the finality, the impugned action of the respondents is justified in law.

14. This Court further observes that it is a settled law that if the Confirming Authority does not confirm a finding on any charge, whether such finding is of "guilty" or "not guilty", then the powers under Section 20 of the Act of 1950 read with Rule 17 of the Rules of 1954 shall be available to be exercised by the concerned Authority. In the present case, the Confirming Authority did not confirm the finding on the first charge and therefore, in absence of such confirmation, the respondents have rightly issued the impugned show cause notice under the aforesaid provisions of law.

15. This Court further observes that in an Army Unit, the personnel are required to maintain good conduct and high degree of discipline, while strictly following the Rules and Regulation of the Army. In the present case, the petitioners (Downloaded on 12/02/2024 at 08:48:14 PM) [2024:RJ-JD:5139] (16 of 16) [CW-4413/2017] were charged for an offence of very serious nature, and looking into the same, the impugned action which was preceded by proper enquiry and disciplinary proceedings, cannot be said to be suffering from any legal infirmity.

16. This Court also observes that the judgment rendered in the case of Union Of India & Ors. Vs. Harjeet Singh Sandhu (Supra) cited by learned counsel for the petitioners was considered by the Hon'ble Apex Court in the case of Sanjay Marutirao Patil (Supra) and in other judgments, which clearly render the judgment cited on behalf of the petitioners non-applicable in the facts and circumstances of the case at hand.

17. Thus, in light of the aforesaid observations and in view of the afore-quoted precedent laws as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition.

18. Consequently, the present petition is dismissed. All pending applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

Skant/-

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