Gujarat High Court
Bhagwandas @ Pappu S/O Sureshchandra ... vs State Of Gujarat on 27 July, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1576 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHAGWANDAS @ PAPPU S/O SURESHCHANDRA AGRAWAL
Versus
STATE OF GUJARAT
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Appearance:
MR SATISH PANDYA for MR RAJESH M AGRAWAL(1253) for the Applicant
MR JK SHAH, ADDL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 27/07/2021
ORAL JUDGMENT
1. By way of present Criminal Revision Application under Section 397 read with Section 401 of Code of Criminal Procedure,1973, the petitioner has challenged the legality and validity of an order passed by learned Additional Sessions Judge, City Civil Court, Ahmedabad dated 29.8.2019, whereby the application submitted under Section 227of the Code of Criminal Procedure came to be dismissed while passing an order below Exh.2 in Sessions Case No.423 of 2018.
2. The case of the petitioner is that with respect to the incident in question, occurred on 14.7.2011, at 14.15 hrs, on the Page 1 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 public road, near Madrasi Mandir, Hatkeshwar, Amraiwadi, Ahmedabad, for which a complaint is lodged, being C.R.No.I-310 of 201l filed by one Rajesh @ Raju Rameshbhai Kamle (Marathi) lodged before Amraiwadi Police Station, Ahmedabad city for the offences under Sections 143, 147, 148, 302, 307, 323 and 120B of the Indian Penal Code and Section 135(1) of the Bombay Police Act. Pursuant to the investigation, the police submitted charge-sheet against one Mr. Nikhilsing, alias Kancho, alias Raj Harshadbhai Vaghela and then the case was registered as Sessions Case No.274 of 2012. Simultaneously, the police also filed charge-sheet against three other persons, namely Satyendra Mahendrabhai Jain, Vijay Rajendrabhai Sharma and Sonu Bhagwandas, alias Paki Agrawal and the case was registered as Sessions Judge No.275 of 2012. The police also filed a charge- sheet against one juvenile delinquent Balbirsing, alias Kalu Hanumansinh Rajavat in the Juvenile Court. The said two cases namely Sessions Case No.274 of 2012 as well as Sessions Case No.275 of 2012 tried before the Sessions Court for the aforesaid offences against those respective accused persons and by giving benefit of doubt, an order of acquittal came to be passed vide judgment and order dated 22.7.2014. According to the petitioner, in the said judgment, at page 68 operative part, it is mentioned that it is not certain whether trial of the juvenile is disposed of or not and moreover, it is also mentioned that absconding accused Bhagwandas @ Pappu, S/o. Sureshchandra Agrawal, i.e. present petitioner, could not be arrested and so muddamal of the case was ordered to be preserved in the same position.
3. According to the petitioner, it is after that, Amraiwadi police arrested the petitioner on 10.11.2017 at around 23.15 hrs. and produced him before Metropolitan Magistrate, Page 2 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 Ahmedabad City, who remanded the custody and later on, granted bail to the petitioner by passing an order in Criminal Misc. Application (Regular Bail) No.1915 of 2018. It is the further case of the petitioner that present petitioner has no connection with the alleged incident in question which took place on 14.7.2011, still unjustifiably, the petitioner came to be arrested and after completion of the investigation, supplementary charge- sheet came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad city and the criminal case was registered as Criminal Case No.19714 of 2017.
4. It is the assertion of the petitioner that upon filing of the supplementary charge-sheet, there was no iota of evidence/ material to connect the petitioner with the commission of the crime. As a result of this, upon committal of the case to the Sessions Judge, an application was submitted under Section 227 of the Code of Criminal Procedure for seeking discharge and such application was filed in Sessions Case No.423 of 2018 below Exh.2. The said application after hearing the parties came to be rejected by an order dated 29.8.2019, which is made the subject matter of the present criminal revision application.
5. Learned advocate Mr. Satish Pandya appearing for Mr. Rajesh Agrawal for the petitioner has vehemently contended that learned Court below has committed a grave error in rejecting the application, despite the fact that after approximately six years, the petitioner came to be arrested and during that time of six years, four accused persons were already acquitted by giving benefit of doubt and therefore, there is no logic in passing such order by the Court below. It has further been submitted that from the petitioner, neither there is any discovery nor any recovery and there is no remote material available connecting the Page 3 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 petitioner with the alleged crime and there is no role actively played by the present petitioner and as such, there is hardly any justifiable reason not to discharge the petitioner from the case in question. Mr. Pandya has further submitted that it is surprising that during pendency of this revision application, the Court below has framed the charge without any material against the petitioner. However, Mr. Pandya has submitted that no proceedings are so far initiated against framing of the charge as it has taken place during pendency of the present petition. Mr. Pandya has further submitted that not a single evidence is attributing the present petitioner and there is no incriminating circumstance to connect the petitioner with the commission of crime and as such, the order passed by the Court below is erroneous, based upon no material and as such, perverse to the record. Mr. Pandya has submitted that the reasons which are assigned while rejecting the application are illogical and reflect clear non-application of mind. Even the very object of the provision related to discharge is frustrated by passing the order impugned in the petition and as such, the order in question deserves to be quashed and set aside. Mr. Pandya has submitted that there was no material found even against all the co-accused persons and therefore, they have been given a reasonable benefit of doubt and when that be so, there is hardly any justification to connect the petitioner with commission of the crime after this much period of time, hence by exercising the revisional jurisdiction, the Hon'ble Court may kindly quash the order by granting the reliefs as prayed for in the petition.
6. As against the above, learned Additional Public Prosecutor Mr. J.K. Shah appearing on behalf of the respondent- State has vehemently submitted that there is no relief for challenging the framing of charge and the charge has already been framed on Page 4 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 22.11.2019, whereas the present revision application is presented on 29.11.2019. The said fact has not been disclosed before the Court when initial order was passed on 2.12.2019 and therefore, once the charge having been framed, present revision application is not entertainabole. Mr. Shah has submitted that the findings which are recorded by the Court below are after scrutiny of the relevant material, which is required at this stage to be scanned and therefore, when subjective satisfaction is arrived at by the Court below on the basis of available material on record, same may not be substituted in exercise of the revisional jurisdiction, which is otherwise very limited. There is no inherent defect or any perversity looking to the well reasoned order which has been passed in due exercise of jurisdiction and as such, looking to the scope contained under Section 227 of the Code of Criminal Procedure, there is hardly any justifiable reason given by the petitioner to call for any interference. Mr. Shah has further submitted that a bare reading of Section 227 of Code of Criminal Procedure would make it clear that the very limited scope is available for the Court to examine the material and here, looking to the reasons which are arrived by the Court below, precisely from para 4 onwards, no case is made out by the petitioner, extraordinary in nature, to indicate any inherent defect and as such, looking to the scope contained under the revisional jurisdiction, the Hon'ble Court may not entertain the present revision application and same requires to be dismissed.
7. As against the above submission of learned Additional Public Prosecutor Mr. J.K. Shah, learned advocate Mr. Satish Pandya for the petitioner has reiterated that there is no prima facie material available to connect the petitioner with the crime in which the other accused persons are already acquitted and therefore, the object of Section 227 of Code of Criminal Page 5 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 Procedure is to save public time and money. No trial to be allowed which may ultimately result in futility and hence, Mr. Pandya has requested to entertain the revision application. Mr. Pandya has submitted that learned Additional Public Prosecutor Mr. Shah has not been able to show anything from the charge- sheet to indicate the activity of the present petitioner with the crime. That being the position, as recorded, Mr. Pandya has requested to grant the reliefs as prayed for in the petition.
8. Having heard learned advocates appearing for the respective sides and and having gone through the contents of the order impugned, it clearly transpires that the order under challenge is passed in due exercise of jurisdiction and the material which is required to be examined at the stage of Section 227 of Code of Criminal Procedure, appears to have been analyzed by the Court concerned.
9. Additionally, from reading of the impugned order, which is based on critical analysis of the record as well as the submissions of both the respective sides, it has been concluded that the charge-sheet qua him could not be filed only on account of the fact that the petitioner was absconding and further, the petitioner is arraigned on account of the fact that on a day previous, the complainant and the deceased had gone to the place of the petitioner, where the petitioner threatened the deceased and gave 2- 3 slaps and immediately on next day, the other accused persons had attacked the complainant as well as the deceased which led to the death of the deceased and therefore, from prima facie material, it has appeared to the Court below that the previous day occurrence had direct link with commission of the crime on 14.7.2011 and as per the case of the prosecution, the present petitioner is the prime accused of the Page 6 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 entire episode. So far as the presence of the petitioner on the day of occurrence is concerned and about his prima facie role, it has been opined that same can be ascertained upon leading of evidence and there is a clear conclusion that prima facie, there is a nexus of the petitioner with actual commission of the crime. This conclusion is arrived at on the basis of the police papers produced before the Court and on the basis of additional statement of the complainant dated 16.7.2011, wherein the Court found that even presence of the accused cannot be assumed at this stage of proceedings and therefore, discharge is not possible. Since this conclusion is on the basis of the material on record, there is hardly any reason to conclude that same is perverse to the record.
10. Para 4 of the impugned order contains the reasons which would indicate that learned Judge while passing the order has applied the mind keeping in view the proposition of law on Section 227 of Code of Criminal Procedure scope and therefore, it is not possible for this Court to construe such order as perverse in any form.
11. While coming to this conclusion, the Court is mindful of few observations made by Hon'ble the Apex Court on the issue of perversity in the case of Prem Kaur Vs. State of Punjab and others reported in (2013)14 SCC 653. Para The Court would like to reproduce para 16 and 19 of the said decision hereunder:-
16. In Triveni Rubber & Plastics v. CCE, this Court held that an order suffers from perversity, if relevant piece of evidence has not been considered f or if certain inadmissible material has been taken into consideration or where it can be said that the findings of the authorities are based on no evidence at all or if they are so perverse that no reasonable person would have arrived at those findings. In Kuldeep Singh v. Commr of Police, this Court while reiterating the same view added that: (SCC p.
14, para 10) Page 7 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 "10. ... if there is some evidence on record which is acceptable and which could be relied upon, howsoever, compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
19. This Court in Satyavir Singh v. State of U.P., held: (SCC p. 183. para 21) "21.... Perverse' was stated to be behaviour which most of the people would take as wrong, unacceptable, unreasonable and a 'perverse' verdict may probably be defined as one that is not only against the weight of the evidence but is altogether against the evidence. Besides, a finding being 'perverse', it could also suffer from the infirmity of distorted conclusions and glaring mistakes."
From the aforesaid point of view, if the judgment of the Court below is examined in the light of the aforesaid proposition, the Court is unable to construe the order under challenge as perverse in any form.
12. A bare reading of the order clearly makes out that prima facie material is examined by the Court in addition to the fact that for a period of six years, the present petitioner was absconding. It has also been considered that simply because the benefit of doubt is given to the other accused persons, straightway, same be applied to the case of the petitioner at this stage and to discharge him from prosecution. While passing the order impugned, it does appear that the entire record is examined by the Court while prima facie coming to the conclusion that this is not a fit case for discharge of the present petitioner. Additionally, it has also been examined that the role of the accused petitioner is pivotal and the material has indicated that learned Judge is satisfied that the petitioner's role is prime as well. So far as presence of the petitioner at a relevant point of time is concerned, learned Judge upon due verification of the investigation papers, found premature to conclude that he Page 8 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 was not present at the time of commission of the crime and as such, keeping in view the principles laid down by Hon'ble the Apex Court which are reported in (2014)11 SCC 709 and (2001)4 SCC 333. Learned Judge came to a conclusion that no case is made out to discharge the petitioner. This Court upon careful consideration of overall circumstances sees no error committed by learned Judge to substantiate his prima facie opinion and when charge has already been framed, now it is desirable that the petitioner who came to be arrested after abscondance of six years, must face the trial.
13. From the overall material which has been produced before the Court and the relevant contents from the charge-sheet, it appears to this Court that this is not a fit case in which the view taken by the Court below deserves substitution in absence of any material irregularity, inherent defect or in absence of any perversity.
14. At this Court, the Court would like to observe that scope of revision application under Section 397 of Code of Criminal Procedure is well propounded by the Hon'ble Apex Court in the case of State of Rajasthan Vs. Fatehkaran Mahdu reported in (2017)3 SCC 198, and after analyzing the relevant provisions, it has been propounded that the object of provisions is to set-right a patent defect or an error of justification or law or perversity which has crept in the proceedings and this Court is of the opinion that no case is made out to fall the case of the petitioner in any of these criteria broadly propounded by Hon'ble the Apex Court. Since the Court has considered the aforesaid decision, the Court would like to reproduce the relevant observations contained in para 26 to 30 hereunder:-
Page 9 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021
26. The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure.
27. Now, reverting to the limit of the scope of jurisdiction under Section 397 Cr. P.C., which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.
28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander and Another, (2012) 9 SCC 460, where scope of Section 397 Cr. P.C. have been succinctly considered and explained. Para 12 and 13 are as follows:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt Page 10 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.
29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in context of quashing of charge framed under Section 228 Cr. P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:
"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.Page 11 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022
R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously.
15. Additionally, Hon'ble Apex Court in the case of State By the Inspector of Police, Chennai Vs. S. Selvi and Another reported in (2018)13 SCC 455, has held that it is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that material produced by prosecution is true and evaluate such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence and after propounding such, Hon'ble the Apex Court was pleased to set aside the order passed by the High Court whereby the accused persons were discharged on the ground of discrepancy at the time occurrence. The relevant observations contained in para 6, 9 and 10 are reproduced hereunder:-
6. It is well settled by this Court in catena of judgments including the cases of Union of India v. Prafulla Samal, (1979) 3 SCC 4;
Dilawar Babu vs. State of Maharashtra (2002) 2 SCC 135; Sajjan Kumar vs. CBI (2010) 9 SCC 368; State v. A.Arun Kumar (2015) 2 SCC 417; Sonu Gupta vs. Deepak Gupta Page 12 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 (2015) 3 SCC 424; State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711; Niranjan Singh Karam Singh Punjabi etc. vs. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 Cr. P.C. pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge cannot act merely as a Post Office or a mouth− piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.
9. ............... At this preliminary stage, the High Court was not justified in concluding that the accused is entitled for discharge merely on the ground of discrepancy in the timings of the incident. The question as to whether respondent no.1 was present on the place of incident or not during the relevant point of time or she had been in Calcutta as sought to be argued before this Court is a matter of proof. Such fact needs to be gone into by the trial Court after recording the evidence.
10. If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of charges, the probative value of the material on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate the material on record at the stage of Sections 227 or 239 of the Code, as the case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that material brought on record by the prosecution are true and evaluate Page 13 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022 R/CR.RA/1576/2019 JUDGMENT DATED: 27/07/2021 such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence.
16. In the context of the aforesaid proposition of law, if the facts are seen and the reasons assigned are compared, it does not transpire that the order in question requires any interference and accordingly, the Court finds that no case is made out by the petitioner. Hence, present Criminal Revision Application stands DISMISSED. Notice discharge. Ad-interim relief, if any, stands vacated forthwith.
Sd/-
(ASHUTOSH J. SHASTRI, J) OMKAR Page 14 of 14 Downloaded on : Sun Jan 16 02:48:43 IST 2022