Gujarat High Court
Irshadali Anwarali Saiyed vs Central Bureau Of Investigation on 25 July, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/6/2023 ORDER DATED: 25/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 6 of 2023
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IRSHADALI ANWARALI SAIYED
Versus
CENTRAL BUREAU OF INVESTIGATION,
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Appearance:
MR AMIT M NAIR(5895) for the Applicant(s) No. 1
VINIT A NAIR(9627) for the Applicant(s) No. 1
MR RC KODEKAR(1395) for the Respondent(s) No. 1
MS JIRGA JHAVERI APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/07/2023
ORAL ORDER
1. The applicant is retired Dy.S.P., who challenges the judgment and order dated 20.12.2022 passed by learned Special CBI Judge, Special Court No.1, Ahmedabad, in connection with C.B.I. Sessions Case No.1 of 2013, whereby his discharge application came to be rejected.
2. The grounds raised to impugn the order of the Special C.B.I. Judge inter alia states that C.B.I. Special Court failed to appreciate Page 1 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined the aim and object of Section 197 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), and has failed to appreciate that though, the present applicant as accused no.2, is innocent and has been falsely and wrongly chargesheeted, and there being no incriminating evidence recovered or discovered at the instance of the applicant to connect him directly or indirectly to the alleged offence, the learned Judge has failed to appreciate the same, as there was no sanction to prosecute the applicant, and has failed to consider that the applicant was not at all involved in any criminal conspiracy to attribute any motive against him in the charge- sheet.
3. Mr. Amit M.Nair, learned advocate for the applicant submits that in C.B.I. Sessions Case No.1 of 2013, in total, eight were arraigned as accused and present applicant was shown as Page 2 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined accused no.2. The accused no.3 - Kishoresinh Motisinh Vaghela came to be discharged by this Court by an order dated 03.02.2023 in Criminal Revision Application No.613 of 2017, while accused nos.4 and 6 were discharged by order dated 24.11.2020 by the CBI Special Court below Exh.192 and 195. Accused no.5 was discharged vide order dated 20.12.2022 by CBI Special Court and accused nos.7 and 8 were discharged on 20.12.2022 by CBI Special Court below Exh.209 and 211. Advocate Mr. Nair submitted that accused no.1 - Jaysinh Gulabsinh Parmar's case came to be abated since deceased.
3.1 Referring to the facts of the case, Mr. Nair stated that one Sabbir Jamal Mehtar filed Special Criminal Application No.963 of 2007 before this Court, and in the proceedings the Court had directed for registration of F.I.R. to carry out investigation in connection with the Page 3 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined alleged encounter of Sadiq Jamal, the brother of the said petitioner. The investigation culminated into charge-sheet, which alleges that the encounter of Sadiq Jamal Mehtar was a pre-planned conspiracy.
3.2 Mr. Nair states that allegations are also to the effect that Tarunkumar Amrutlal Barot, who had been arraigned as accused no.8 and who came to be discharged on 20.02.2021 by the C.B.I. Court he along with other staff, took the custody of Sadiq Jamal Mehtar from Mumbai on 02.01.2003 and confined him in Bungalow No.15, Duffnala, Sahibaug, Ahmedabad till 12.01.2003, and in the intervening night of 12.01.2023, it is alleged that the deceased - Sadiq Jamal was killed in the state managed encounter. 3.3 Mr. Nair stated that the role attributed to the present applicant is giving six shots from his 0.38 service revolver, where it was alleged Page 4 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined that about 11 rounds/bullets fired by the encounter party and five rounds have been attributed to deceased P.I. J.G. Parmar, and further it was alleged that the state managed encounter was given a colour of genuine encounter and the encounter party members planted a country made revolver of 0.32 bore and ammunition on deceased Sadiq Jamal, and shown their recovery from the place of encounter.
3.4 Mr. Nair stated that there is no allegation against the present applicant of being a party to any prior meeting to attribute any case of criminal conspiracy. The allegation of bringing Sadiq Jamal and having detained him in Bungalow No.15, Duffnala, Sahibaug, Ahmedabad, was against Tarunkumar Amrutlal Barot, who has been discharged. While, the statement of the driver on the vehicle, which was used by the present applicant, as alleged, on 12.01.2003 till morning 13.01.2003, recorded by C.B.I. on Page 5 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined 28.02.2012, of Samiullaha Fakrumia Malik, notes as per the logbook at page 137, that he was on the vehicle deputed to him with Registration No.2725 Ambassador Car, and he on 12.01.2003 at 10:00 p.m. drove the present applicant from DCB Office Ahmedabad, to a placenear Naroda Galaxy Cinema, where he alighted from the vehicle and the vehicle was parked nearby.
3.5 Mr. Nair stated that this witness has not referred to any person along with the present applicant, but the statement clearly reflects that the applicant had left the DCB office, Ahmedabad alone and had reached Naroda Galaxy Cinema. The driver till 5:00 morning on 13.01.2003 was there, and according to him he was sleeping in the car. The statement further reflects that the drive near Galaxy Cinema was to keep a watch of terrorist purpose, and the same had been noted in the logbook, and against that the present applicant had put his signature, this Page 6 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined witness on 13.01.2003 had handed over the charge of the vehicle to another driver Bhikhabhai Javerbhai, and as per the statement of Bhikhabhai Javerbhai, it was Samiullaha Malik, who was on duty on 12.01.2003 till he handed over the charge.
4. Countering the same, Mr. R.C. Kodekar for the CBI submitted that after the said alleged encounter, FIR being C.R. No.I-3 of 2003, was registered before the DCB Police Station against Sadiq Jamal and others. The investigation was carried out by officials of the DCB P.S., and after conclusion 'A Summary' report was filed by DCB P.S. in the Court of Metropolitan Magistrate, which came to be accepted by the learned Judge on 12.01.2005.
4.1 Mr. Kodekar states that Sabbir Jamal Mehetar, brother of the deceased, filed Special Criminal Application No.963 of 2007, praying for Page 7 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined investigation by the CBI or by any other agency, and, by an order dated 16.06.2011, CBI was directed to take up the investigation in relation to killing of Sadiq Jamal on 13.01.2003 by the police officers/officials of Crime Branch, Ahmedabad. Pursuant to the direction of the Hon'ble High Court, CBI registered an FIR vide case RC-3(S)/2011-SC-III, New Delhi on 15.07.2011, conducted the investigation, and thereafter filed charge-sheet against eight persons including the present applicant for the offence punishable under Sections 120B read with sections 341, 342, 302 and 203 of the IPC. 4.2 Mr. Kodekar further submitted that witness, who had reached at the place of occurrence at around 3.00-3.15 a.m., had named the present applicant, who was present at the place of incident, while the encounter had taken place at around 1.15 a.m.; specific statement of Page 8 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined Devjibhai Jograna (P.W.36) submits about the incident and F.S.L. report corroborates that firing on Sadiq Jamal was from close range. Mr. Kodekar submitted that complaint by Shri J.G. Parmar as C.R. No.I-3 of 2003 of D.C.B. Police is an important documentary, which shows the motive for committing the crime, as such motive cannot be prima facie discern from complaint itself, and, thus, referring to the judgment of Firozuddin Basheeruddin & Ors. Vs. State of Kerala, reported in (2001) 7 SCC 596, Mr. Kodekar stated that the very act of the applicant to have joined the others at the place of incident discloses him to be party to the crime and conspiracy.
4.3 Mr. Kodekar submitted that section 161 of the Gujarat Police Act and section 197 of the Cr.P.C. would not be applicable, as the case is not of any official act under the course of Page 9 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined service, while there is clear allegation of fake encounter. Mr. Kodekar stated that during the course of investigation, sufficient evidence were collected to establish the alleged encounter as being fake. Mr. Kodekar stated that the role of each accused cannot be separated or bifurcated in a case, when there is case of criminal conspiracy under section 120B of the IPC.
4.4 Mr. Kodekar further stated that the complaint as was filed by J.G. Parmar on 13.01.2003 states that on 12.01.2003, information was received by Crime Branch, Ahmedabad that Sadiq Jamal was to come near Jay Ambe Traders, Sai Baba Complex, Galaxy Cinema, Ahmedabad to meet his associates at about 23.30 hours, and it is the case of the Crime Branch Officer that they had kept a watch near the said place, and about 1.50 hours on 13.01.2003, when efforts were made to apprehend Sadiq Jamal, he opened fire on the Page 10 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined police party, and therefore, the present applicant and deceased J.G. Parmar, the complainant, before the DCB office, fired five to six rounds from the respective service revolvers and as a result of firing, it is stated that Sadiq Jamal got injured and thereafter was admitted to Civil Hospital, where he was declared dead by the Doctor.
4.5 Advocate Mr. Kodekar, thus, stated that at the stage of hearing a discharge application, section 227 of the Cr.P.C. gives a limited right to Judge concern to analyze the material on record, but that would not permit the Court to enter into the pros and cons and reliability and acceptability of the material, and evidenciary value of the material, so placed, would be examined during the trial, thus, submitted that there is prima facie case against the present applicant of having used his service revolver, Page 11 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined and the deceased was encountered by him.
5. While countering the argument, Mr. Nair stated that the applicant was duty bound to follow the instructions of the officers and there are cogent evidence of the specific inputs, which was addressed to all CsP in G.S., Spl. I.G.P. (Ops.), A.T.S. Ahmedabad, All Dispol in G.S. including Westpol Vadodara, All Asstt. Commissioner Int. Region in G.S., Addl. D.G.P. CID Crime, G.S., Gandhinagar, Addl. D.G.P., Intelligence, G.S. Gandhinagar. The information was from Police, Gandhinagar (D.H.) Additional D.G.P., Intelligence G.S., Gandhinagar that in continuation of the referred message, as per further report of a Central Agency one Sadiq, Dubai based person, Height 5.4 and close associates of Dawood Ibrahim is to target Shri L.K. Advani, Shri Narendra Modi and Dr. Pravinbhai Togadia, and he was reported to have Page 12 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined already arrived in India and is to proceed for his assignment from Bhavnagar on 29.11.2002. The information was to be shared with the office as conveyed by Deputy Commissioner (Security) for Addl. D.G.P., Intelligence, Gandhinagar and, thus, stated that on specific inputs received, the applicant had proceeded in vehicle, which was allotted to him along with driver of the vehicle, and as per the intelligence inputs, the said person was found at the place, and when he had fired on the police party, the applicant as well as deceased Parmar in retaliation and in self defence has opened fire from the service revolver, while the present applicant has no personal enmity against Sadiq Jamal nor any motive can be attributed for him to eliminate the deceased.
5.1 Thus, Advocate Mr. Nair placing reliance on section 161 of the Gujarat Police Act stated Page 13 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined that in respect of any wrong by the police officer purported to have been done under the colour or in excess of any such duty or authority, shall have to be brought to the notice of the superior within one year from the date of the alleged act.
5.2 Mr. Nair relied on the judgment in the case of Mr.K.K.Patel Vs. State of Gujarat reported in (2000) 3 GLH, 230, this Court has observed as under:
"40. ...The sub-section imposed a ban on the Court from entertaining a prosecution for an offence falling within the purview of subsection and so committed by a police officer, if the prosecution was instituted more than one year after the date of the act complaint off. The only exception to the said ban is, if the complainant gets sanction from the State Government to prosecute the police officers, aforesaid period of one year would be enlarged to two Page 14 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined years. Offence falling within the purview of sub- section relate to those acts done "under the colour or in excess of any duty or authority as the aforesaid". The sub-section then widens the net little further bringing within its swift those offences committed though any act done which are "of the character aforesaid". The character "aforesaid" in sub-section is evidently with reference to what is mentioned in section 159 and 160 of the said enactment. Those provision afford an absolute immunity to public servant from any penalty or liability to pay damages in respect of any, act done in good faith. In pursuance of or intended pursuance of "any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any Rule, order or direction made or given thereunder." Such absolute immunity is not afforded in respect of any offence or wrong alleged to have been done by such public servant, if it was done "under Page 15 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined colour or excess of any such duty or authority as aforesaid". Nonetheless the said statute has fixed a time limit for initiation of prosecution proceedings in such cases against the public servant. If prosecution proceedings were not initiated within such time limit, they cannot be commenced thereafter. That similar ratio has been laid down by the Hon'ble Apex Court in the case of Viipaxappa vs. State of Mysore reported in AIR 1963 SC 849."
5.3 Advocate Mr.Nair has also relied on the judgment of Om Prakash Vs. State of Jharkhand reported in (2012) 12 SCC 72, the Hon'ble Supreme has observed in para-29 as under:-
"29.. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel.
Page 16 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined Plea regarding sanction can be raised at the inception." 5.4 Advocate Mr. Nair has further relied on
the judgment of State of Himachal Pradesh Vs. M.P.Gupta, reported in (2004)3 SCC 349, wherein this Court has observed in para-17, which reads thus:
"17. We may mention that Law Commission in its 41st Report in para 15.123 while dealing with Section 197 as it then observed, "it appears to us that the protection under section is needed as much after retirement of public servant as before retirement. The protection afforded by the said section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant cease to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by section 197 is the public interest in seeing that Page 17 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined official act do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant".
6. The CBI charge-sheet refers to the role of the present applicant and others in following terms:
As a part of pre-planned conspiracy, on 12.01.2000 evening, PI J.G Parmar along with his other colleagues, namely, PI I.A Saiyed PI K.M.Vaghela PSI R.L Mavani PSI G.H.Gohil, PC Ajaypatsingh Siyaram Yadav and PC Chhatrasinh Manubha Chudasama discussed the modalities of elimination of Sadiq Jama in a stage managed encounter at Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad. Accordingly, PSI Page 18 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined G. N. Gohil visited Bungalow no.
15, Dafnala, Shahibaug, Ahmedabad
at about 20.00 hrs. and then at
about 22.00 hrs., he accompanied by other team members took Sadiq Jamal from Bungalow no. 18 to Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad in the tempo traveler Police Vehicle no. P170. At about 22.00 hrs. PI I.A Saiyed accompanied by other team members left Crime Branch office, Gaikwad Haveli, Ahmedabad in official vehicle P-137 (Regn No.GJ 1G 2/25 Ambassador car) whereas Pl J.G. Parmar accompanied by other team members left the office in a private Tata Sumo vehicle (Regn.
No. GJ 10F 3855) at about 22.30 hrs, they all reached near Sai Baba Page 19 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined Complex, Galaxy Cinema Naroda Ahmedabad.
6.1 The allegation against the present applicant is that he along with other team member had left the Crime Branch office, Gaikwad Haveli, Ahmedabad in official vehicle P-137 (Regn. No.GJ 1G-2725, Ambassador car); While allegations against the deceased J.G. Parmar was also to the effect that he along with other team members left the office in a private Tata Sumo vehicle (Regn. No. GJ-10-F-3855) at about 22.30 hrs. and all reached near Sai Baba Complex, Galaxy Cinema Naroda Ahmedabad.
6.2 The prosecution case does not suggest that the present applicant had brought Sadiq Jamal at Bungalow at Dafnala, Shahibaug. The said allegation is attributed to Tarunkumar Amrutlal Barot. The specific intelligence inputs circulated by Dy. Commissioner (Security) For Page 20 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined Addl. D.G.P., Int. G.S., Gandhinagar, gives a specific mention of deceased Sadiq, stated to be a close associates of Dawood Ibrahim, who had come to target the persons named in the intelligence. The driver of the vehicle, Registration No.2725 Ambassador Car, which was used by the present applicant, does not name any person, who had accompanied the present applicant from DCB Office, Ahmedabad, if at all, however, any other co-accused had joined him in the service vehicle, then the said act was in pursuance of his official duty. The applicant was in his official vehicle, which was used during the course of his service. As stated, in continuation of the intelligence inputs constituted team had reached the place and on the ground, as stated, the firing was on the basis of self defence. The act, as alleged against the present applicant of using his service revolver and giving about six shots to the deceased Sadiq Page 21 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined Jamal, would be an Act in his official duty. 6.3 It is further to be noted that brother of the deceased had withdrawn Special Criminal Application No.761 of 2022 on 25.04.2022, Special Criminal Application No.763 of 2022 on 25.04.2022 and Special Criminal Application No.6322 of 2021 on 25.04.2021, against the accused and the role attributed to all the other accused are graver.
7. The powers of the Special Judge under section 227 of the Cr.P.C. has been laid down in the judgment of Union of India Vs. Prafulla Kumar Samal and Another, reported in AIR 1979 SC 366, The Hon'ble Apex Court held that in exercising the jurisdiction under section 227, the Special Judge, which under the present Code is a senior and experienced court cannot act merely as a post office or mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the Page 22 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined documents produced before the Court, any basic infirmities appearing in the case and so on, however, it would not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he is conducting a trial; while considering the question of framing charges under this section, he 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. The Hon'ble Apex Court further observed that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application, and, where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. Further observed that, by and large Page 23 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined however, 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 right to discharge the accused.
8. The present applicant was not the author of the complaint before DCB Police Station. The complaint was given by J.G. Parmar. Further, the said FIR was filed against deceased Sadiq Jamal after the act, which was stated to be in connection with the intelligence inputs received from Deputy Commissioner, Gandhinagar Office. The applicant was not alleged by the CBI as being part of any team prior to the alleged act to have intentionally conspired to eliminate Sadiq Jamal. The present applicant's act as a Police Inspector, in the team, cannot be individually bifurcated, as he had gone to the place in a team in a position as a Police Inspector. Page 24 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023
NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined 8.1 In that fact of the matter, the sanction under section 197 of Cr.P.C. would be important, as the said section aims at giving protection to the public servant against vexatious and malicious prosecution. Section 197 contemplates to safeguard the interests of the public servants, who are accused of having committed an offence "while acting or purporting to act in the discharge of their official duty". No motive has been individually attributed to the present applicant, and when the alleged act, as could be seen, was of performing his official duty, there could be no prosecution against the present applicant, more so, when no sanction has been granted against him to prosecute him.
9. In view of the above, considering the facts and circumstances of the case and the ratio laid down in the aforesaid judgments, the present Page 25 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023 NEUTRAL CITATION R/CR.RA/6/2023 ORDER DATED: 25/07/2023 undefined application is allowed. The impugned order dated 20.12.2022 passed below Exh.220 in CBI Sessions Case No.1 of 2013 is hereby quashed and set aside and all other consequential order is also set aside qua the present applicant. The applicant's application below Exh.220 in CBI Sessions Case No.1 of 2013 is hereby allowed. The applicant is hereby discharged from all the charges in connection with the CBI Sessions Case No.01 of 2013. The application is disposed of, accordingly.
Direct service is permitted.
(GITA GOPI,J) Pankaj Page 26 of 26 Downloaded on : Sat Sep 16 22:47:43 IST 2023