Karnataka High Court
Mithun Chakravarthi Devidas Shet vs The State Of Karnataka And Anr on 27 September, 2024
Author: K Natarajan
Bench: K Natarajan
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NC: 2024:KHC-K:7437
CRL.P No. 200076 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO.200076 OF 2024
(482(Cr.PC)/528(BNSS))
BETWEEN:
SRI. MITHUN CHAKRAVARTHI DEVIDAS SHET
S/O DEVIDAS SHET, AGED ABOUT 44 YEARS,
RESIDENCE AT SULIBELE, BENGALURU RURAL,
SULIBELE-562129.
...PETITIONER
(BY SRI. ARUNSHYAM, (BY V.C.) SENIOR COUNSEL FOR
SRI. BASAVAKIRAN G. R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH SIRAWAR POLICE STATION,
Digitally signed REPRESENTED BY ADDL. SPP,
by SHIVALEELA
DATTATRAYA HIGH COURT OF KARNATAKA
UDAGI KALABURAGI-585102
Location: High
Court Of
Karnataka 2. SRI. JAGADEV GUTTEDAR KALAGI
AGED ABOUT 55 YEARS,
FATHER'S NAME NOT KNOWN,
TO THE PETITIONER,
DISTRICT CONGRESS COMMITTEE PRESIDENT,
RESIDENCE OF BRAHMPUR KALABURAGI CITY,
KALABURAGI DISTRICT-585103.
...RESPONDENTS
(BY SRI. SIDDALING P. PATIL, ADDL. SPP AND
SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1;
SRI. ARUNKUMAR AMARGUNDAPPA, ADVOCATE FOR R2)
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NC: 2024:KHC-K:7437
CRL.P No. 200076 of 2024
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO ALLOW THIS CRIMINAL PETITION AND QUASH
THE FIR AND COMPLAINT IN CRIME NO.8/2024 REGISTERED BY
RESPONDENT NO.1 SIRWAR POLICE STATION (ON THE FILE OF THE
LEARNED ADDITIONAL DISTRICT AND SESSIONS COURT, RAICHUR
DISTRICT) FOR THE ALLEGED OFFENCE UNDER SECTIONS 153-A,
153-B, 505 OF I.P.C. AND UNDER SECTION 3(2)(V-A) OF SC AND ST
(PREVENTION OF ATROCITIES) ACT, 1989, PRODUCED AT
DOCUMENTS NOS.1 AND 2.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN) This petition is filed by the petitioner/accused under Section 482 of Cr.P.C. for quashing the FIR registered by the Sirwar Police Station in Crime No.8/2024 for the offence punishable under Sections 153-A, 153-B, 505 of IPC and Section 3(2)(v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short, hereinafter referred to as 'the SC/ST (POA) Act').
2. Heard the learned counsel for the petitioner and the learned Addl. SPP and learned High Court Government -3- NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 Pleader for respondent No.1/State and learned counsel for the respondent No.2.
3. The case of the prosecution is that the petitioner said to be a NGO staying in Raichur uttered the words in a public meeting at Sirwar, Raichur district. He is said to be president of one brigade Sirwar NGO in Raichur district said to be arranged the programme and made speech in the public meeting by tarnishing the image of the AICC president of a political party (Congress party) belongs to the complainant. It is stated that the AICC president he has uttered word by using word 'Ayogya' during the speech. Therefore, the complaint can be filed that he has committed the offence under Section 153-A, 153-B and 505 of IPC. Initially the complaint came to be filed before Brahmapur police station, Kalaburagi district and later it was transferred to Raichur district by order of Court on the request of the Assistant Commissioner of Police, Kalaburagi. Accordingly, the FIR has been transferred to Sirwar police and once again the Sirwar -4- NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 police registered the FIR and took up the investigation, which is under challenge.
4. The learned counsel for the petitioner has seriously contended that the speech made by the petitioner is not at all attracted the offences either 153-A or 153-B and 505 of IPC. And the second contention was that the offence under Section 3(2)(v-a) of SC/ST (POA) Act is not comes under the Schedule offences in order to invoke the provision 3(2)(v-a) of SC/ST (POA). And further contended the word used is not with an intention to tarnish the image or it may be a defamatory word used by the petitioner and the complainant may file the complaint to the Magistrate by filing private complaint for the offences under Sections 499 and 500 of IPC. Therefore, the IPC offences as well as the Special Act will not at all attracted.
5. The learned counsel for petitioner also contended that the police with the influence of the District in-charge Minister, a false case has been registered in -5- NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 Kalaburagi and got it transferred to the Sirwar police, Raichur district, only to falsely implicate the petitioner. There is no intention of the petitioner to tarnish image of any of the persons. Therefore, conducting investigation is nothing but abuse of process of law. Therefore, the FIR liable to be quashed. In support of his contention, the learned counsel for the petitioner relied upon the various judgments of the Hon'ble Supreme Court and Co-ordinate Bench of this Court.
6. Per contra, the learned Addl. SPP has seriously objected the petition and contending that the petitioner used the word 'Ayogya', which is a very serious abusive word, and it tarnish the image of the leader of the opposition party in the Rajya Shabha and who is the familiar leader in the Karnataka as well as Kalaburagi District. He has used abusive word, which was published in the TV-9 news channel where the crores of people viewed the news channel and the accused was uttered the word in the public meeting there were more than 10,000 people -6- NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 gathered in the meeting. There is video, audio, clippings were seized by the police. Therefore, the matter is required for investigation and FIR cannot be quashed.
7. The learned Addl. SPP also contended that the petitioner is though running a private NGO in the name of brigade, but he is a supporter of the BJP party. Therefore, he has politically attacked the leader of the Congress party, which definitely provokes the public peace and tranquility in the area and it clearly attracts Section 153-A and 153-B of IPC. The matter is still under investigation. Therefore, it is contented that there is no question of filing defamation case either under Sections 499 or 500 IPC arises. Hence, prayed for dismissing the petition and seeking permission to investigate the matter.
8. The learned counsel for respondent No.2 has also objected the petition and contending that the ingredients of Section 153-A and 153-B and 505 of IPC is attracted though the schedule offences under SC/ST (POA) Act may not be attracted, but the matter is required for -7- NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 investigation. At this stage, the Court cannot hold a mini trial and at this stage this Court cannot seek material for establishing the guilt of the accused without going for the investigation. Therefore, prayed for dismissing the petition.
9. Having heard the arguments and perused the records, on perusal of the same especially the complaint filed by the respondent No.2, who said to be in-charge president of the Congress Party of the District Kalaburgi. The petitioner said to be held a meeting/public meeting in Sirwar taluk. In the public meeting the petitioner used the word, naming the opposite party leader as 'Ayogya' and used some other defamatory words, which was published in the TV-9 news channel. Therefore, the complaint came to be filed. At initial stage, the complaint was filed in the Kalaburagi district, where the complainant was residing in Kalaburagi and subsequently on the point of jurisdiction, the FIR has been transferred to Sirwar police, Raichur District. In turn, the Sirwar police registered the FIR. -8-
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10. Now coming to the case, especially the offences alleged against the petitioner was 153-A, 153-B, 505 of IPC and Section 3(2)(v-a) SC/ST (POA) Act. In this regard, the learned counsel for the petitioner has seriously contended there is no offence committed under the scheduled offences Act in order to invoke the provisions of SC/ST (POA) Act .
11. In this regard, though the learned Addl. SPP and respondent No.2 counsel objected the petition, but on perusal of the entire contents of the complaint, nowhere the petitioner uttered any word insulting the members of the SC/ST in order to attract Section 3(2)(v-a) of SC/ST (POA) Act, he never used the caste name of the leader of the opposition in the contents of the complaint in order to attract the Section 3(2)(v-a) of SC/ST (POA) Act.
12. Apart from that, it is brought to the notice of the Court by the learned counsel for the petitioner that the alleged offences, especially either 505 or 153-A, 153-B are -9- NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 not scheduled offences in order to take cognizance for filing the FIR or investigate the matter under the Special Act.
13. On careful reading of the scheduled to the SC/ST (POA) Act in respect of 3(2)(v-a), the offences were made out or shown as scheduled offences and the Sections 153-A or 153-B or 505 of IPC is not mentioned as schedule offences. Therefore, by looking to the scheduled to the Section 3(2)(v-a) of SC/ST (POA) Act and contents of the FIR, admittedly there is no such word or abusive word by taking the caste name of the leader of the opposition party by insulting the members of the SC/ST in order to take or register the FIR for the offences punishable under Section 3(2)(v-a) of SC/ST (POA) Act. Therefore, very registering the FIR for the special offence 3(2)(v-a) of SC/ST (POA) Act is not sustainable and it is not required to investigate by the police. Therefore, the alleged offence required to be quashed.
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024
14. As regards to the section 153-A and 153-B of IPC, the learned counsel for the petitioner mainly relied upon the landmark judgment of the Hon'ble Supreme Court in the case of Balwant Singh and Another vs. State of Punjab in (1995) 3 SCC 214 wherein at para- 9 of the judgment the Hon'ble Supreme Court has held as under:
"9. In so far as the offence under Section 153-A IPC is concerned, it provides for punishment for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious, racial, language or regional groups or castes or communities. In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or effect public tranquility, that the law needs to step in to prevent such an activity. The facts and circumstances of this case unmistakably show that there was no disturbance or semblance of disturbance of law and order or of public order or peace and tranquility in the area from where the appellants were apprehended while raising slogans on account of the activities of the appellants. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove the existence of mens rea in order to succeed. In this case, the prosecution has not been able to establish any mens rea on the part of the appellants, as envisaged by the provisions of Section 153A IPC, by their raising causally the three slogans a couple of times. The offence under Section 153-A IPC is, therefore, not made out."
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024
15. Based upon the said judgment, the Hon'ble Supreme Court also relied in the case of Patricia Mukhim vs. State of Meghalaya and Others in (2021) 15 SCC 35 and quashed the criminal proceedings.
16. On perusal of the judgment of the Supreme Court in the case of Balwant Singh (supra) wherein the prosecution was launched for the offences 124-A and 153- A of IPC and a trial was held, the accused was convicted and later in the appeal, the Hon'ble Supreme Court set aside the conviction, holding that the prosecution failed to establish the guilt of the accused either for promoting the enmity between two groups or religion, race, place or birth or residence, language, caste, etcetera, and offence of section 153-A IPC is not made out.
17. The another judgment relied by the learned counsel in the case of Javed Ahmad Hajam vs. State of Maharashtra and another reported in 2024 SCC Online SC 249 wherein the Hon'ble Supreme Court considered the 153-A of IPC at para-5, 14 and 16 held as under:
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 "CONSIDERATION OF SUBMISSIONS
5. The only offence alleged against the appellant is the one punishable under Section 153-A of the IPC. Section 153-A of the IPC, as it exists with effect from 4th September 1969, reads thus:
"153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-- (1) Whoever--
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity,
(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Offence committed in place of worship, etc.--Whoever commits an offence specified in sub- section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine."
14. The High Court has held that the possibility of stirring up the emotions of a group of people cannot be ruled out. The appellant's college teachers, students, and parents were allegedly members of the WhatsApp group. As held by Vivian Bose, J, the effect of the words used by the appellant on his WhatsApp status will have to be judged from the standards of reasonable women and men. We cannot apply the standards of people with weak and vacillating minds. Our country has been a democratic republic for more than 75 years. The people of our country know the importance of democratic values. Therefore, it is not possible to conclude that the words will promote disharmony or feelings of enmity, hatred or ill-will between different religious groups. The test to be applied is not the effect of the words on some individuals with weak minds or who see a danger in every hostile point of view. The test is of the general impact of the utterances on reasonable people who are significant in numbers. Merely because a few individuals may develop hatred or ill will, it will not be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the IPC.
16. Now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution."
18. The Hon'ble Supreme Court has held that the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of reasonable restraint on their free speech and expression. They must sensitized about the democratic values enshrined on our Constitution.
19. The another judgment in the case of Patricia Mukhim (supra), in similar offences in 153-A where the words are written or spoken have the tendency of creating public disorder or disturbance of law and order or affecting the public tranquility, the law needs to be step in to prevent such an activity and, therefore intention to cause disorder or incite people to violence in the sine qua non of the offence under Section 153-A and prosecution has to prove the existence of mens rea in order to succeed. There is no second opinion in respect of the law laid down by the Hon'ble Supreme Court in the said judgment there must
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 be mens rea to be established by the prosecution to prove the guilt under Section 153-A of IPC. At para-14 of the judgment, which is held as under:
"14. India is a plural and multicultural society. The promise of liberty, enunciated in the Preamble, manifests itself in various provisions which outline each citizen's rights; they include the right to free speech, to travel freely and settle (subject to such reasonable restrictions that may be validly enacted) throughout the length and breadth of India. At times, when in the legitimate exercise of such a right, individuals travel, settle down or carry on a vocation in a place where they find conditions conducive, there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence. In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied - or delayed. This is exactly what appears to have happened in this case."
20. The learned counsel for the petitioner further relied on the judgment of the Hon'ble Supreme Court in the case of Prathvi Raj Chauhan vs. Union of India and Others reported in (2020) 4 SCC 727, in respect of quashing the proceedings under SC/ST (POA) Act.
21. This Court already observed in the above para holding that the offence under Section 3(2) or 3(2)(v-a) of
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 SC/ST (POA) Act is not attracted. Therefore, the said judgment is not required to consider by this Court at this stage as it is pertaining to the granting of anticipatory bail and bar for invoking the provision of 438 of Cr.P.C. for granting anticipated bail in SC/ST (POA) Act.
22. The learned counsel also relied upon the judgment of the Co-ordinate Bench of this Court in Ajit Hanumakkanavar vs. State of Karnataka and another in Criminal Petition No.6/2019 Dated 24.01.2019, wherein the High Court quashed the FIR for the offence punishable under Section 153-A and 505(2) of IPC, wherein the fact of the said case is that a programme was conducted by the person or accused in the said case is known as called "Left, Right & Centre with Ajit" and the Co-ordinate Bench of this Court has considered this word is nothing to do with either attracting Section 153-A or 505(2) of IPC.
23. The learned counsel also relied upon another judgment of the Co-ordinate Bench of this Court in the
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 case of Pramod Muthalik vs. The State of Karnataka and another in Writ Petition No.25638/2019 dated 11.07.2019, which is in respect of the sanction of prosecution for taking cognizance. In this case FIR is under progress. Therefore, taking cognizance at this stage does not arise. The said judgment is not applicable to the case at this stage.
24. The another order of the Co-ordinate Bench in the case of T.Negeshwara Rao and others vs. State of Karnataka and another in Writ Petition No.200425/2021(GM-RES) dated 24.06.2021, wherein the case is based upon the Section 3(1)(r), 3(1)(s) of SC/ST (POA) Act. Wherein that case the accused person said to be entered into a chamber of the factory and they are said to be abused inside the factory, as by taking the caste name as 'dore sole makkale' and insulting the complainant by the accused persons. But this Court has taken the view that the offence committed inside the factory and in the chamber and it is not in the public place
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 to attract Section 3(1)(r), 3(1)(s) of SC/ST (POA) Act. Therefore, this Court already given a findings in respect of Special Act under SC/ST (POA) Act. Therefore, this judgment also not useful to the petitioner case.
25. Now coming to the word uttered by the petitioner whether it attracts Section 153-A of IPC or not.
26. On perusal of the entire judgment relied by the learned counsel, which was delivered by the Hon'ble Supreme Court, none of the cases the word used by the petitioner was mentioned in the above said judgment. Herein this case the petitioner alleged to have been used the opposition leader of the Parliament and who said to be a familiar leader of the Karnataka in Congress party and especially he is said to be leader of the Kalaburgi district where his son said to be in-charge Minister. It appears the person who uttered the words by the petitioner is politically a familiar person in the Country.
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27. The word used by the petitioner as the said person as 'Ayogya'. The learned counsel for the petitioner produced the Kannada dictionary meaning of the word 'Ayogya', wherein is referred that as under:
1) AiÉÆÃUÀå£À®èzÀªÀ£ÀÄ; UËgÀªÀPÉÌ ¥ÁvÀ森 À èzÀªÀ£ÀÄ (n) wretch;
worthless fellow; scamp; scalawag; rascal (gu)
2) GavÀª® À èzÀ; AiÉÆÃUÀåªÀ®èzÀ (adj) unworthy;
unbecoming; improper.
28. These are all synonymous words to the 'Ayogya'. On careful reading, the word used by the petitioner is clearly goes he has used the name of the opposition leader as 'Ayogya', which directly attacks the character of the person, which is used in the dictionary meaning 'rascal'. None of the judgment of the Hon'ble Supreme Court in above case were used directly as taking the person and attacked personally.
29. The learned counsel for the petitioner during the argument has contended that the Co-ordinate Bench
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 of this Court has stated, even if a person abused by using the word as 'sule makkale', which is not an abusive word, in order to attract Section 499 or 500 of IPC.
30. The contention of the learned counsel for the petitioner cannot be acceptable that using the word 'sule makkale' are children of prostitute, definitely it will provoke the person for committing breach of peace, which is directly attract Section 504 of IPC, which is abusive word. Therefore, it cannot be said it is not an offence.
31. Apart from that using the word as rascal cannot be bring under the purview of the right of expression guaranteed under Article 19(1) of the Indian Constitution. The Hon'ble Supreme Court in the case of Javed Ahmad Hajam (supra) at para-16 has categorically held the reasonable expression should be restrained in the freedom of speech and expression.
32. Therefore, the investigation is still under progress. The FIR has been stayed by this Court. In order
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 to establish either the petitioner is having criminal intention or not, it has to be considered by the Investigating Officer during the investigation. The police said to be collected, the audio, video, CD or clippings from the complainant it has to be verified for the purpose of investigation and to file the final report.
33. Therefore, at this stage, the Court cannot expect whether the petitioner is criminally intended to cause alarm or caused the public peace or tranquility cannot be considered. That apart the respondent, the person who said to be abused by the petitioner by taking the word as 'ayogya' about opposite party leader and he is a familiar person in the district and country, definitely the followers of the Congress or his fans may take law into motion or law into their own hands, they may assault or attack the public, they may cause the public peace and tranquility. Therefore, without going for the investigation, this Court cannot quash the FIR at a pre-investigation stage. The Hon'ble Supreme Court also held in the case
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NC: 2024:KHC-K:7437 CRL.P No. 200076 of 2024 M/S Neeharika, Infrastructure Pvt. vs The State Of Maharashtra dated 13.04.2021 case, the FIR cannot be quashed and it can be quashed only in the rarest of rare case.
34. Accordingly, I pass the following:
ORDER
i) The petition is allowed in-part.
ii) As regards to the FIR for the offence punishable under Section 3(2)(v-a) of SC/ST (POA) Act, is hereby quashed.
iii) The petition is dismissed as regards to the FIR for the offence punishable under Sections 153-A, 153-B and 505 of IPC.
iv) The interim order granted by this Court is hereby vacated.
v) However, the prosecution is hereby
permitted to investigate the matter
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CRL.P No. 200076 of 2024
regarding other offences and file final
report in accordance with the law.
vi) The Investigating Officer shall not influence any observation made by this Court.
In view of disposal of main matter, pending IAs, if any, do not survive for consideration and same shall stand disposed of.
Sd/-
(K NATARAJAN) JUDGE SDU LIST NO.: 1 SL NO.: 1 CT:SI