Gujarat High Court
Jayaben @ Parvatiben Daughter Of ... vs State Of Gujarat & 8 on 26 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/5388/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 5388 of 2015
In SPECIAL CRIMINAL APPLICATION NO. 3076 of 2014
[On note for speaking to minutes of order dated 06/08/2015 in
R/CR.MA/5388/2015 ]
With
SPECIAL CRIMINAL APPLICATION NO. 3076 of 2014
==========================================================
JAYABEN @ PARVATIBEN DAUGHTER OF DAYALBHAI MANGALBHAI
RATHOD....Applicant(s)
Versus
STATE OF GUJARAT & 8....Respondent(s)
==========================================================
Appearance:
MR AB MUNSHI, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 5 , 7
NOTICE UNSERVED for the Respondent(s) No. 2 - 4 , 6 , 8 - 9
PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/08/2015
ORAL ORDER
1 By this Note for Speaking to Minutes filed by the original petitioner, it has been pointed out that the observation made by this Court in para 30 of the judgment dated 06.08.2015 passed in the Criminal Miscellaneous Application No.5388 of 2015 in Special Criminal Application No.3076 of 2014 with the Special Criminal Application Page 1 of 2 HC-NIC Page 1 of 19 Created On Sat Aug 29 02:33:55 IST 2015 1 of 19 R/CR.MA/5388/2015 ORDER No.3076 of 2014 is being misinterpreted by the police. In para 30, the following observations were made :
"30. For the reasons aforesaid, I direct the Commissioner of Police, Surat to depute any officer of the rank of Assistant Commissioner of Police other then the respondent No.9 of the Criminal Misc. Application to undertake the further investigation in connection with C.R. No.I150/2014 registered with the Khatodara Police Station, Surat City. The further investigation is mainly for the purpose of recovering the alleged forged and bugus power of attorney. An appropriate report of the further investigation shall be filed before the trial Court."
2 Mr. Munshi, the learned advocate appearing for the petitioner pointed out that the word "mainly" is sought to be interpreted as "only".
It is clarified that further investigation is not restricted only to the recovery of power of attorney but would also include involvement of other persons in the offence, if any. The recovery of the alleged fraud and bogus power attorney was one of the main consideration, but that does not mean that the further investigation should be confined only to such recovery of the documents in the course of the further investigation. If it is found that other persons are involved in the alleged offence, the police shall proceed further in accordance with law.
3 With the above, the Note for Speaking to Minutes is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 2 of 2 HC-NIC Page 2 of 19 Created On Sat Aug 29 02:33:55 IST 2015 2 of 19 R/CR.MA/5388/2015 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 5388 of 2015 In SPECIAL CRIMINAL APPLICATION NO. 3076 of 2014 With SPECIAL CRIMINAL APPLICATION NO. 3076 of 2014 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== 1 Whether Reporters of Local Papers may be allowedNO to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy ofNO the judgment ?
4 Whether this case involves a substantial question ofNO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== JAYABEN @ PARVATIBEN DAUGHTER OF DAYALBHAI MANGALBHAI RATHOD....Applicant(s) Versus STATE OF GUJARAT & 8....Respondent(s) ========================================================== Appearance:
MR AB MUNSHI, ADVOCATE for the Applicant(s) No. 1 NOTICE SERVED for the Respondent(s) No. 5 , 7 NOTICE UNSERVED for the Respondent(s) No. 2 - 4 , 6 , 8 - 9 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Page 1 of 17 HC-NIC Page 3 of 19 Created On Sat Aug 29 02:33:55 IST 2015
3 of 19 R/CR.MA/5388/2015 CAV JUDGMENT Date : 06/08/2015 CAV JUDGMENT
1. By this writapplication under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "40. (a) Your Lordships be pleased to admit and allow this petition;
(b) Your Lordships be pleased to transfer the investigation from respondent nos.2, 4 and 6 to an independent agency such as Range I.G. Of South Gujarat Zone and/or Special Investigating Team under the supervision of Director General of Police and/or to Central Bureau of Investigation (CBI) and register an FIR by arraigning the accused named in the written applications which are annexed at AnnexureA colly in the fact stated herein above (bb) Your Lordships be pleased to grant police protection to the petitioner and her family members forthwith as per the application dated 29.7.2014 annexed at Annexure:P/1 to this petition.
(c) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to call for the progress report from the respondent nos. 2, 4 and 6 and to report to this Hon'ble Court as to what sort of investigation has been carried out by them till date;
(d) Your Lordships be pleased to issue an appropriate writ in the nature of mandamus or any other appropriate, writ, order or direction by directing the respondent no.2, to submit an action taken report pursuant to the order dated 13022014 passed in Special Criminal Application No.199 of 2014;
(e) Your Lordships be pleased to grant such other and further relief/s as are deemed fit, in the interest of justice."
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2. The case of the petitioner may be summarized as under:
3. The petitioner along with her brother Dhansukhbhai Dayalbhai Rathod had addressed various applications dated 11072013, 17082013 / 24082013, 29112013, 13022014, 15022014, 26022014, 25042014, 10072014 and 28082014 to the respondent no.2 to 4 and 7 respectively disclosing commission of the cognizable offences punishable under Sections 406, 420, 465, 467, 468, 471, 504, 506(2), 120(B) read with Section 34 of the I.P.C. and sections 3(1) and 7 of the Prevention of Scheduled Caste and Scheduled Tribe (Atrocity Act).
4. The respondent no.2 being the highest officer of the rank of IPS has failed to perform his duties and is favouring the persons against whom allegations have been levelled. The respondent no.2 is supporting the influential persons who are alleged to have grabbed the valuable land of the petitioner and her family members. The persons concerned have gone to the extent of threatening and forcing the poor adivasi people to put their signatures and/or thumb impressions on blank papers on the grounds of settlement.
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5. Therefore, this petition is filed for the transfer of the investigation from the respondent no.2 to the Range I.G. of South Gujarat Zone and/or Special Investigating Team under the supervision of the respondent no.7 and/or Central Bureau of Investigation (CBI).
6. The petitioner is a member of the Scheduled Tribe. She is completely dependent upon the land and if she is made to part with her land she would suffer huge hardship. The petitioner's only source of livelihood is the land.
7. The land bearing Old Revenue Survey No.194/2 which is given new Revenue Survey No.116/2 admeasuring 1500 sq. meters of lands of village Vesu was possessed by grandfather of the petitioner as a tenant. The land of the above survey number was originally owned by one Narsinh Prabhu and Gemal Keshar who will be hereinafter referred to as the "Original Owners". Pursuant to the proceedings which were initiated by the grandfather of the petitioner under the provisions of section 32G of the Bombay Tenancy and Agricultural Lands Act, he became the tenant of the said survey number by an order passed by the Mamlatdar dated 621963.
8. The tenant i.e. the grandfather of the Page 4 of 17 HC-NIC Page 6 of 19 Created On Sat Aug 29 02:33:55 IST 2015 6 of 19 R/CR.MA/5388/2015 CAV JUDGMENT petitioner paid the purchase price in 8 periodical installments and subsequent thereto, a 32M certificate dated 30011974 under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 was issued in the name of the grandfather of the petitioner.
9. The name of the grandfather of the petitioner Shri Mangalbhai Bhulabhai was reflected in the revenue records from 195556 as a tenant of the said land and the petitioner's grandfather was earning his livelihood by cultivating the said land.
10. One Rajeshbhai Gijubhai Patel and his family members had an evil eye on the land in question. They entered into a registered sale deed dated 3 112010 with the original owners of the land by way of a power of attorney dated 221985. Although the petitioner's grandfather Shri Mangalbhai Bhulabhai Rathod became the tenant of the said land in the year 1963 and subsequent thereto 32M certificate was also issued in the name of the grandfather of the petitioner, the head strong people who are well known builders of the Surat City got the sale deed executed in their favour as if the original owners i.e. Narsinh Prabhubhai and Gemalbhai Kesharbhai were the owners of land in question through their Page 5 of 17 HC-NIC Page 7 of 19 Created On Sat Aug 29 02:33:55 IST 2015 7 of 19 R/CR.MA/5388/2015 CAV JUDGMENT power of attorney holder. The power of attorney holder of Shri Narsinhbhai Prabhubhai and Gemalbhai Kesharbhai is one Dahiben who happens to be the mother of Rajubai Gijubhai. Dahiben, the widow of Gijubhai Chhaganbhai and mother of Rajubhai Gijubhai is also shown, as the purchaser in the said sale deed. In the sale deed, it is mentioned that in 1988 the possession receipt and power of attorney was given by the original owner in favour of Dahiben, mother of Rajubhai Gijubhai.
11. Although Narsinh Parbhu and Ghemal Keshar ceased to be the owners of the land in question by virtue of the order passed under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 and the 32M certificate issued in favour of the grandfather of the petitioner Mangal Bhula yet created a bogus power of attorney of the year 1985 and got the land transferred by way of a registered sale deed.
12. Both the original owners had passed away in the year 1959 and 1969 respectively. Narsinh Parbhu expired on 25081969 and Ghemal Keshar expired on 14011959.
13. Although Narsinh Parbhu and Ghemal Keshar had expired in the year 1969 and 1959 respectively, Page 6 of 17 HC-NIC Page 8 of 19 Created On Sat Aug 29 02:33:55 IST 2015 8 of 19 R/CR.MA/5388/2015 CAV JUDGMENT yet a forged power of attorney in the year 1985 was created in the name of dead persons and the property was also transferred by way of forged power of attorney in favour of the family members of Dahiben Gijubhai Patel.
14. The petitioner belongs to a backward class community i.e. Adivasi. The land in question is governed by the provisions of section 73AA of the Gujarat Land Revenue Code, 1879. When transfer is by a tribal to a nontribal, the permission from the Collector is a condition precedent. Only after a valid permission the land can be transferred by a tribal in favour of a non tribal. In the present case, the land came to be transferred by virtue of a bogus power of attorney in favour of a nontribal. The petitioner's grandfather was a tribal and therefore these lands could not have been transferred unless the requisite permission under Section 73AA of the Gujarat Land Revenue Code, 1879 was obtained.
15. The great grandmother viz. Chitliben, widow of Bhulabhai Kalabhai of the petitioner was also a tenant of a part of the land bearing old Revenue Survey No.194/1 and new Survey No.116/1 which is adjoining to the present land in question. In that case also the very builders Page 7 of 17 HC-NIC Page 9 of 19 Created On Sat Aug 29 02:33:55 IST 2015 9 of 19 R/CR.MA/5388/2015 CAV JUDGMENT i.e. the family members of Rajeshbhai Gijubhai Patel who are beneficiaries of that land, pursuant to a forged 32M certificate as well as forged will of Chitliben showed that Chitliben had died in 1977 whereas in fact she had passed away on 18.11.1959. In that case also, a false family pedigree of Chitliben was produced, false statements were recorded, false consent letter and false affidavit were produced by them. In the said case, the petitioner herein had filed written complaints to the present respondent nos. 2 and 3 later on the FIR was lodged by the Mamlatdar, Surat City. Only one person was arraigned as the accused in the said FIR who happened to be the Talati of Vesu village at that particular point of time. Although various documentary evidences were produced before the respondent nos. 2 and 3 herein the persons concerned were not arraigned as accused. In that case also, there was an opinion from the District Government Pleader that cognizable offence was made out against the persons concerned, but even then the City Mamlatdar, Surat, who happened to be the complainant did not arraign the family of Rajeshbhai Gijubhai Patel as accused. The said FIR came to be registered before the Khatodara Police Station being C.R. No.I 240/2013 dated 30.08.2013.
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16. Since Rajubhai Gijubhai Patel and his family members were not arraigned as accused by the respondent nos. 2 to 4 herein the petitioner herein had filed a petition before this Court for transfer of investigation of C.R. I 240/2013 lodged with Khatodara Police Station investigated by the Assistant Commissioner of Police, SC/ST Cell, Surat City to Range I.G. of South Gujarat Zone and/or Central Bureau of Investigation (CBI).
17. Although the offence is made out prima facie against the concerned persons, yet the respondents nos. 2 to 4 have failed to register the F.I.R. as provided under the provisions of Cr.P.C.
18. Though the petitioner's complaints which were earlier referred to at AnnexureA colly did not culminated into FIR, the petitioner was constrained file a Special Criminal Application before this Hon'ble Court being Special Criminal Application No.199 of 2014. When the matter came up for hearing before this Hon'ble Court on 13 022014, this Hon'ble Court (Coram : Hon'ble Mr. Justice G.R. Udhwani) vide his order dated 1302 2014 was pleased to dispose of the petition pursuant to the statement that was made by the public Prosecutor that the Deputy Police Page 9 of 17 HC-NIC Page 11 of 19 Created On Sat Aug 29 02:33:55 IST 2015 11 of 19 R/CR.MA/5388/2015 CAV JUDGMENT Commissioner, ZoneII, Surat i.e. respondent no.6 herein was on the verge of registering an FIR. Even then till date no FIR has been registered which itself would go to show that how head strong people these Raju Giju and his family members are.
19. The petitioner therefore being aggrieved and dissatisfied by the inaction on the part of the respondent nos. 2, 3, 4 and 6 herein prefer this petition under Article 226 and 300A of the Constitution of India and section 482 of Criminal Procedure Code, 1973 for transfer of investigation from Shri Rakesh Asthana, Commissioner of Police Surat to Range I.G. of South Gujarat Zone and/or Special Investigating Team under Supervision of Director General of Police and/or Central Bureau of Investigation (CBI).
20. Mr. S.V. Raju, the learned Senior advocate assisted by Mr. A.B. Munshi for the petitioner submitted that the Investigating Officer has carried out a very perfunctory investigation and the most important and vital document i.e. the power of attorney dated 12th January, 1985, which is a forged and bogus document purported to have been executed by one Shri Narshiprasad and Ghemal Keshar although both had passed away in the year Page 10 of 17 HC-NIC Page 12 of 19 Created On Sat Aug 29 02:33:55 IST 2015 12 of 19 R/CR.MA/5388/2015 CAV JUDGMENT 1959 and 1969 respectively was not recovered and collected from Dahiben Patel or any of her family members. Mr. Raju submitted that the power of attorney is on a stamp paper bearing the name of one advocates Shri M.K. Rana. According to Mr. Raju, there is no advocate by the name of Shri M.K. Rana. This aspect has also had not been investigated by the respondent No.9 herein.
21. Mr. Raju submitted that although the said bogus power of attorney on 1985 was used again for canceling the sale deed of the year 2010, in the year 2014 no offence in that regard was registered against the accused persons. Mr. Raju submitted that although in the course of the hearing of the matter an oral statement was made by the learned APP appearing in the matter that the investigating officer would not file the chargesheet without collecting the necessary document yet the Investigating Officer proceeded to file the chargesheet making the case of the petitioner weak in the absence of the forged document.
22. It appears that the sudden filing of the chargesheet by the respondent No.9 on 9th March, 2015 led to the filing of the Criminal Misc. Application No.5388 of 2015 with the following prayers: Page 11 of 17 HC-NIC Page 13 of 19 Created On Sat Aug 29 02:33:55 IST 2015 13 of 19 R/CR.MA/5388/2015 CAV JUDGMENT "(a) Your Lordships be pleased to admit and allow this application;
(b) Your Lordships be pleased to declare the charge sheet filed by the respondent no.9 on 9032015 and produced before the learned 7th Additional Senior Civil Judge and Judicial Magistrate, First Class, Surat on 10032015 as illegal, null and void and set aside the same;
(c) Your Lordships be pleased to initiate appropriate proceeding against the respondent no.9 for illegally filing charge sheet and for violating the oral directions of this Hon'ble Court;
(d) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the further proceedings of Criminal Case No.13355 of 2015 pending in the Court of 7th Additional Senior Civil Judge and Judicial Magistrate, First Class, Surat pursuant to the Charge sheet filed by the respondent no.9 on 93 2015 and produced before the Court on 103215;
(e) Your Lordships be pleased to grant such other and further relief/s, as are deemed fit, in the interest of justice."
23. Mr. N.J. Shah, the learned APP appearing for the State respondents submitted that the allegations levelled by the petitioner are baseless. He submitted that despite best of the efforts made by the Investigating Officer the alleged forged power of attorney could not be recovered in the course of the investigation, and therefore, without such document the investigating officer had to file the charge sheet. Mr. Shah denied any statement being made before the Court by his colleague at the relevant point of time in charge of the matter that the Page 12 of 17 HC-NIC Page 14 of 19 Created On Sat Aug 29 02:33:55 IST 2015 14 of 19 R/CR.MA/5388/2015 CAV JUDGMENT chargesheet would not be filed without the vital document i.e. a forged power of attorney.
24. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether I should order further investigation in the matter through any other officer.
25. In the over all view of the matter, I am convinced with the case made out by the petitioner for further investigation. In the absence of a very vital document the prosecution might fail despite their being other evidence on record prima facie making out a case of criminal conspiracy and cheating.
26. The object and reason for incorporating Section 173(8) Cr.P.C. is reflected in the 41st report of the Law Commission. Relevant portion is as follows: "A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a Page 13 of 17 HC-NIC Page 15 of 19 Created On Sat Aug 29 02:33:55 IST 2015 15 of 19 R/CR.MA/5388/2015 CAV JUDGMENT hindrance in the way of the investigating agency, which can be unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused."
27. The scope of further investigation by police under Section 173(8), Cr.P.C. was considered by the Supreme Court in the decision reported in AIR 1979 SC 1791 : (1979 Cri LJ 1346) Ram Lal Narang v. State (Delhi Admn.) and (Om. Prakash Narang v. State (Delhi Admn.) where it has been laid down: "As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation." However, in paragraph 21 a guideline has been indicated for the investigating officer who intend to exercise power under Section 173 (8), Cr.P.C. It reads as follows:
"Anyone acquainted with the day to day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interest of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would Page 14 of 17 HC-NIC Page 16 of 19 Created On Sat Aug 29 02:33:55 IST 2015 16 of 19 R/CR.MA/5388/2015 CAV JUDGMENT implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other person. In either case, it is for the Magistrate to decide upon his further course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to perfsons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that is further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use of abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and instructions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light."Page 15 of 17
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28. It appears that the alleged forged power of attorney purported to have been executed in the year 1985 was once again used in March, 2014 for the purpose of cancelling the sale deed. It necessarily implies that till 19th March, 2014 the original power of attorney was available, and therefore, all of a sudden, it has disappeared. No efforts seems to have been made by the respondent No.9 to procure the said original document.
29. The petitioner before me is a rustic Adivasi lady and the land in question is governed by the provisions of Section 73 (AA) of the Gujarat Land Revenue Code, 1979. It appears that the proceedings under Section 73(AA) were initiated by the Deputy Collector, Surat and an amount of Rs.7,94,25,000/ was ordered to be recovered by way of penalty from Dahiben Gijubhai Patel and her family members.
30. For the reasons aforesaid, I direct the Commissioner of Police, Surat to depute any officer of the rank of Assistant Commissioner of Police other then the respondent No.9 of the Criminal Misc. Application to undertake the further investigation in connection with C.R. No.I150/2014 registered with the Khatodara Police Station, Surat city. The further Page 16 of 17 HC-NIC Page 18 of 19 Created On Sat Aug 29 02:33:55 IST 2015 18 of 19 R/CR.MA/5388/2015 CAV JUDGMENT investigation is mainly for the purpose of recovering the alleged forged and bogus power of attorney. An appropriate report of the further investigation shall be filed before the trial Court.
31. With the above observations and directions, the main writapplication is disposed of. In view of the order passed in the main writapplication the connected Criminal Misc. Application is also disposed of.
(J.B.PARDIWALA, J.) Manoj Page 17 of 17 HC-NIC Page 19 of 19 Created On Sat Aug 29 02:33:55 IST 2015 19 of 19