Anant Vijay Soni vs The State Of Madhya Pradesh on 21 September, 2017

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HIGH COURT OF MADHYA PRADESH : AT JABALPUR

Criminal Revision No.2195/2015

Miscellaneous Criminal Case No.6960/2015

1. Anant Vijay Soni,
Son of Duli Chand Soni,
Aged 27 years,
R/o 129, Shanti Nagar,
Chhatarpur (M.P.)
Present Address:
B.95 Shahpura Bhopal
District Bhopal (MP)
Petitioner

versus

1. State of Madhya Pradesh,
Through: P.S. Mahila Thana,
Bhopal (MP)

2. Poonam Nagle,
D/o R.R. Nagle,
Aged about 35 years,
R/o 21A, Sarvjan Colony,
Akbarpur, Kolar Road,
Bhopal (MP)
Respondents/complainant
…………………………………………………………………………………………………..

Present:- Hon’ble Shri Justice C.V. Sirpurkar
……………………………………………………………………………………………………
Shri Sankalp Kochar, counsel for the petitioner.
Shri Yogesh Dhande, Government Advocate for the
respondent/State.
Shri Abhishek Arjaria, counsel for the complainant.
……………………………………………………………………………………………………
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ORDER

(21-09-2017)

1. Miscellaneous Criminal Case No.6960/2015 has been
instituted on 28.04.2015 on an application under section 482 of
the Code of Criminal Procedure filed on behalf of
petitioner/accused Anant Vijay Soni for quashing the first
information report no. 33/2015 registered by Mahila Thana,
Bhopal on 25.03.2015 under
section 376 of the Indian Penal
Code and 3(1)(xii) of SC ST (Prevention of Atrocities) Act,
1989.

2. Criminal Revision No.2195/2015 is directed against the
order dated 04.08.2015 passed by the Court of Special Judge,
Bhopal appointed under SC ST (Prevention of Atrocities)
Act, 1989 in Case No. SC-ATR/36/2015 registered upon the
charge sheet arising from aforesaid FIR no.33/2015 registered
by Mahila Thana, Bhopal against the accused/petitioner.

3. Since both of aforesaid cases have arisen from same crime
no.33/2015 registered by Mahila Thana, Bhopal against
petitioner Anant, they have been analogously heard and are
being decided by this common order.

4. The case of the prosecution before the trial Court may be
summarized as hereunder: Prosecutrix is a 27 years old educated
lady belonging to a scheduled caste, who runs her own non-
governmental organization. In the year 2008, she was Manager
in Birla Sun life Insurance Company. Petitioner Anant Vijay
Soni was her neighbour. The prosecutrix got the petitioner
employed as Adviser Agent in Birla Sun life Insurance
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Company. Thereafter the petitioner developed closeness with
her, which later turned into a romantic relationship. On
10.04.2010, on the birthday of the prosecutrix, the petitioner
took her to Salkanpur. When the prosecutrix asked as to when
petitioner intends to marry her. The petitioner replied that he
would marry only the prosecutrix and if she did not believe him
he would marry her immediately. Thereafter, the petitioner put
vermilion in her hair and assured her that they had become
husband and wife. After their return to Bhopal, the petitioner
went along with the prosecutrix to her house and the same night
had sexual intercourse with her. Thereafter, the petitioner used
to visit Bangalore and Mumbai off and on and stayed at the
residence of the prosecutrix, as her husband and continued to
exploit her physically. In the year 2012, the prosecutrix and the
petitioner told the mother of the prosecutrix that they had
married in the temple in the year 2010. During the period of
next two years, he promised three or four times to the mother of
the prosecutrix that he would marry the prosecutrix. In the year
2013, the petitioner’s sister Sarika Soni opened a call centre in
the partnership with the petitioner and shifted to her residence
after promising the prosecutrix that their relationship would
continue. On 07.10.2013, he had taken the prosecutrix for
treatment to Dr. Malti Bhugwani. On 16.06.2014, which was
birthday of the petitioner, they were sleeping together. At about
03:00 a.m., there was a call on mobile phone of the petitioner.
When the prosecutrix picked the phone, she found that there
was a girl on the other side. When the prosecutrix accosted the
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petitioner regarding the girl, he slapped her and instructed her
not to receive his mobile phone. Thereafter, he demanded
Rs.60-70,000/- from the prosecutrix on the pretext that he was
shifting to Pune and needed money to pay to the landlord.
However, the prosecutrix refused to give him any money. On
01.10.2014, when the prosecutrix was shifting residence, the
petitioner helped her in shifting the household goods. On that
occasion also, he promised the mother of the prosecutrix that he
would marry the prosecutrix around Makar Sankranti the
following year. On 14.12.2014, the petitioner had sexual
intercourse with the prosecutrix for the last time and the same
day, the prosecutrix had gone to the Railway Station to see off
the petitioner, who was going to Pune. When the prosecutrix
reminded the petitioner of his promise to marry her, he declined
and taunted her that the people from her caste clean toilets. He
humiliated the prosecutrix with reference to her caste. After
that, he started to avoid the prosecutrix and would not receive
her telephone calls or respond to her messages. On 03.02.2015,
when the prosecutrix called the petitioner on telephone, he
humiliated her with reference to her caste and instructed her not
to bother him on telephone again. Thus, the petitioner had
sexually exploited the prosecutrix on false promise of marriage,
cheated her off Rs.6-7 lacs, humiliated and insulted her with
reference to her caste and thereafter when he had had enough of
her, refused to have anything to do with her. The prosecutrix
lodged the first information report on 25.03.2015. Pursuant to
aforesaid first information report lodged by the prosecutrix,
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Mahila Thana, Bhopal investigated the matter and filed a charge
sheet in the Court of Special Judge, Bhopal. The Special Judge,
Bhopal framed charge of the offences punishable under
sections
376(1) of the Indian Penal Code and 3(2)(v) and 3(1)(xii) of the
SC ST (Prevention of Atrocities) Act,1989.

5. Petitioner Anant had challenged the first information
report lodged against him by means of the petition under
section
482 of the Code of Criminal Procedure filed on 28.04.2015.
During the pendency of aforesaid petition, the charge was
framed by the trial Court. Consequently, he filed criminal
revision no.2195/2015 on 03.09.2015 for setting aside the
charge.

6. Learned counsel for the petitioner has prayed for quashing
of the first information report and setting aside of the charge
mainly on the grounds that the prosecutrix was in her early
thirties when the petitioner is said to have married her in the
temple. She was a mature and educated working woman. She
had married one Rajesh Bele on 07.07.2007. Rajesh Bele and
the prosecutrix filed for divorce by mutual consent in the Court
of Principal Judge, Family Court, Bhopal under
section 13-B of
the Hindu Marriage Act, 1955 on 07.12.2011. Subsequently, a
decree of divorce by mutual consent was passed on 28.06.2012.
Thus, the marriage between Rajesh Bele and the prosecutrix
subsisted from 07.07.2007 till 28.06.2012. As such, on
10.04.2010 when the petitioner is said to have married the
prosecutrix in a temple and is said to have had sexual
intercourse with her for the first time, she was in the wedlock
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with aforesaid Rajesh Bele. In these circumstances, there could
have been no promise of marriage, false or otherwise. In support
of aforesaid contention, the petitioner has filed copies of the
petition under
S. 13-B of the Hindu Marriage Act filed jointly
by Rajesh Bele and the prosecutrix on 07.12.2011 and copy of
the judgment and decree of divorce by mutual consent dated
28.06.2012 passed thereon by Principal Judge, Family Court,
Bhopal.

7. Learned counsel for the petitioner has contended that even
if all allegations made in the first information report against the
petitioner are taken at their face value and presumed to be true,
it is clear that the consent for repeated instances of intercourse
was not granted by the prosecutrix on any misconception of
facts but this was a sexual relationship between two consenting
adults for mutual enjoyment without any commitment. A
consensual sexual intercourse would not become rape simply
because the relationship between the parties has become sour
subsequently. In this regard, learned counsel for the petitioner
has placed reliance upon the case of
Rajiv Thapar and others
vs. Madan Lal Kapoor, AIR 2013 SC (Supp) 1056 and has
submitted that for quashing first information report on a petition
under
section 482 of the Code of Criminal Procedure, the Court
can consider the documents filed by the defence provided they
are unimpeachable and are of sterling character. Learned
counsel for the petitioner has also placed reliance upon the
judgment rendered by the Supreme Court in the case of
Prashant Bharti vs. State (NCT of Delhi), AIR 2013 SC 2753
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and has contended that during the subsistence of earlier valid
marriage, it cannot be said that the prosecutrix was induced into
a physical relationship under an assurance of marriage. In these
circumstances, it has been urged that the first information report
has obviously been lodged with an ulterior motive to wreck
vengeance upon the petitioner; therefore, it deserves to be
quashed and the charge framed by the trial Court is liable to be
set aside.

8. Learned Government Advocate for the respondent/State
and learned counsel for the respondent no.2 have vehemently
opposed the petition under
section 482 of the Code of Criminal
Procedure and criminal revision filed under
section 397 of the
Code of Criminal Procedure. It has been contended that both of
them would not be maintainable.

9. Learned counsel for the prosecutrix has invited attention
of the Court to statements made by the prosecutrix under
sections 164 and 161 of the Code of Criminal Procedure and the
statement made by her mother under
section 161 of the Code of
Criminal Procedure and has submitted that the prosecutrix is a
woman belonging to a scheduled caste. She was sexually
exploited for a period of more than 4 years by the petitioner
who belonged to a upper caste. The prosecutrix submitted to
sexual exploitation due to false promise of marriage repeatedly
made by the petitioner to her and her mother. Thus, the consent
given by the prosecutrix was based upon misconception of fact
and would not convert the rape committed by the petitioner
upon the prosecutrix into the act of consent. It has also been
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submitted that the petitioner had insulted and humiliated the
prosecutrix with reference to her scheduled caste at a place in
public view; therefore, it has been contended that the first
information report is not liable to be quashed; however, the
learned counsel for the prosecutrix has not disputed the
documents filed by the petitioner with regard to earlier marriage
namely the petition under
section 13-B of the Hindu Marriage
Act and the judgment and decree dated 28.06.2012 rendered by
Family Court, Bhopal.

10. On perusal of record and due consideration of rival
contentions, the Court is of the view that the petition under
section 482 of the Code of Criminal Procedure must succeed for
the reasons hereinafter stated.

11. First of all the Court shall consider whether this petition
under
section 482 of the Code of Criminal Procedure is
maintainable even after framing of the charge in the case.

12. It is true that after filing of the petition under section 482
of the Code of Criminal Procedure, the case before the trial
Court proceeded and subsequently a charge as stated above, has
been framed by the trial Court; however, the Supreme Court has
held in the case of Satish Mehra Vs. State (NCT of Delhi) and
another, AIR 2013 SC 506 that the power under
section 482 of
the Code of Criminal Procedure for quashing the first
information report would be available for exercise not only at
the threshold of the criminal proceedings but also at a relatively
advance stage thereof, namely after framing of charge against
the accused. Thus, it is clear that a petition under
section 482 of
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the Code of Criminal Procedure would not be rendered
infructuous simply because the charge has been framed by the
trial Court. Thus, the Court would treat the petition under
section 482 of the Code of Criminal Procedure as being
maintainable and proceed to adjudicate it on merits.

13. The next question that arises for consideration is whether
in proceedings under
section 482 of the Code of Criminal
Procedure for quashing the first information report, the
documents filed by the defence, which are not annexed to the
charge sheet, can be taken into consideration ?

14. In the case of Rajiv Thapar (supra), the Supreme Court
had delineated the following steps to determine the veracity of a
prayer for quashing, raised by an accused by invoking the power
vested in the High Court under
section 482 of the Cr.P.C.:

(i) Step one, whether the material relied upon by the accused is sound, reasonable,
and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the
assertions contained in the charges levelled against the accused, i.e. the material
is sufficient to reject and overrule the factual assertions contained in the
complaint, i.e. the material is such, as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been
refuted by the prosecution/ complainant; and /or the material is such, that it
cannot be justifiably refuted by the prosecution/complainant

(iv) Step four, whether proceeding with the trial would result in an abuse of
process of the Court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High
Court should persuade it to quash such criminal proceedings, in exercise of power
vested in it under
Section 482 of the Cr. P. C.

15. The aforesaid principles may also be found to have been
adopted by the Supreme Court in the cases of
Harshendra
Kumar D. vs. Rebatilata Koley, AIR 2011 SC 1090 and
Anita
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Malhotra vs. Apparel Export Promotion Council, (2012) 1
SCC 520.

16. In the case at hand, we may note that the
petitioner/accused has placed reliance upon the joint petition for
divorce by mutual consent filed under
section 13-B of the Hindu
Marriage Act by the prosecutrix and her husband Rajesh Bele in
the Court of Principal Judge, Family Court and the judgment
and decree dated 28.06.2012 passed by that Court. These
documents have not been disputed by the prosecution or the
prosecutrix before this Court in any manner. Therefore, the
Court shall consider those documents for the purpose of
determining whether the first information report is liable to be
quashed.

17. A perusal of the petition under section 13-B of the Hindu
Marriage Act reveals that on 07.12.2011, the prosecutrix had
given her age as 26 years. It is not in dispute that though the
prosecutrix belonged to a scheduled caste, she was a mature and
educated lady with experience of working in different
organizations like non-governmental organization and Insurance
Companies. Thus, she was a modern lady having a mind of her
own. The prosecutrix has concealed the factum of her previous
marriage to aforesaid Rajesh Bele in the first information report
and her statements to the police under
section 161 and 164 of
the Code of Criminal Procedure; however, it is absolutely clear
from the documents filed by the petitioner that she had married
Rajesh Bele on 07.07.2007 by Hindu Rites. She separated from
Rajesh Bele in August, 2007. However, the petition for divorce
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by mutual consent was filed on 07.12.2011 and the decree of
divorce was granted on 28.06.2012. These facts and the
documents on which they are based have not been disputed by
the prosecutrix. As per the allegations made by the prosecutrix,
the petitioner put vermilion in her hair and asserted that they
had become husband and wife, on 10.04.2010. As per her
allegations, she first had sexual intercourse with the petitioner
the same night. Thereafter, they lived as husband and wife
continuously till 16.12.2014. Thus, she continued in a live in
relationship with the petitioner for a period of about 4 years and
8 months between 10.04.2010 and 16.12.2014. Out of aforesaid
duration, from 10.04.2010 till 12.06.2012 i.e. for a period of
about 2 years and 2 months, she continued to be legally wedded
to her first husband Rajesh Bele. As such, by her own
admission, her sexual relationship with the petitioner for a
period of about 2 years and 2 months was in the nature of an
adulterous relationship.

18. In the case of Prashant Bharti (supra), in similar fact
situation, the Supreme Court has held in paragraph no.16 that:

16. The factual position narrated above would enable us to draw some positive
inferences on the assertion made by the complainant/prosecutrix against the
appellant-accused (in the supplementary statement dated 21.2.2007). It is relevant
to notice, that she had alleged, that she was induced into a physical relationship
by Prashant Bharti, on the assurance that he would marry her. Obviously, an
inducement for marriage is understandable if the same is made to an unmarried
person. The judgment and decree dated 23.9.2008 reveals, that the
complainant/prosecutrix was married to Lalji Porwal on 14.6.2003. It also
reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two
divorced one another by mutual consent under
Section 13B of the Hindu Marriage
Act. In her supplementary statement dated 21.2.2007, the complainant/prosecutrix
accused Prashant Bharti of having had physical relations with her on 23.12.2006,
25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry
her. It is apparent from irrefutable evidence, that during the dates under reference
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and for a period of more than one year and eight months thereafter, she had
remained married to Lalji Porwal. In such a fact situation, the assertion made by
the complainant/prosecutrix, that the appellant-accused had physical relations
with her, on the assurance that he would marry her, is per se false and as such,
unacceptable. She, more than anybody else, was clearly aware of the fact that she
had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no
question of anyone being in a position to induce her into a physical relationship
under an assurance of marriage. If the judgment and decree dated 23.9.2008
produced before us by the complainant/prosecutrix herself is taken into
consideration along with the factual position depicted in the supplementary
statement dated 21.2.2007, it would clearly emerge, that the
complainant/prosecutrix was in a relationship of adultery on 23.12.2006,
25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly
married to her previous husband Lalji Porwal. In the aforesaid view of the matter,
we are satisfied that the assertion made by the complainant/prosecutrix, that she
was induced to a physical relationship by Prashant Bharti, the appellant-accused,
on the basis of a promise to marry her, stands irrefutably falsified.

19. Likewise, in the case of Uday Vs. State of Karnataka,
AIR 2003 SC 1639, the Supreme Court has held that :

In a case of this nature two conditions must be fulfilled for the application
of
S. 90, I. P. C. Firstly, it must be shown that the consent was given under a
misconception of fact. Secondly, it must be proved that the person who obtained
the consent knew, or had reason to believe that the consent was given in
consequence of such misconception.

It, therefore, appears that the consensus of judicial opinion is in favour of
the view that the consent given by the prosecutrix to sexual intercourse with a
person with whom she is deeply in love on a promise that he would marry her on a
later date, cannot be said to be given under a misconception of fact. A false
promise is not a fact within the meaning
of the Code. We are inclined to agree
with this view, but we must add that there is no strait jacket formula for
determining whether consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of fact. In the ultimate
analysis, the tests laid down by the Courts provide at best guidance to the judicial
mind while considering a question of consent, but the Court must, in each case,
consider the evidence before it and the surrounding circumstances, before
reaching a conclusion, because each case has its own peculiar facts which may
have a bearing on the question whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and every ingredient of the
offence, absence of consent being one of them.

20. In the light of aforesaid principles, when we revert back to
the facts of the case at hand, we find that the prosecutrix has
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alleged that she entered into a sexual relationship with the
petitioner on assurance that he would marry her; however, she
was clearly aware of the fact that she was in a subsisting valid
conjugal relationship with Rajesh Bele, yet she repeatedly
indulged in sexual intercourse with the petitioner for a period of
2 years and 2 months. Thus, her assertions that she submitted to
physical relationship with the petitioner on the assurance that he
would marry her, is per se false and as such, unacceptable. Due
to her subsisting valid marriage, there was no question of any
one being in a position to induce her into a physical relationship
under an assurance of marriage. Thus, it is clear that the
prosecutrix was in an adulterous relationship with the petitioner
from 10.04.2010 to 28.06.2012. In these circumstances, it is
clear as day that the assertions made by the prosecutrix that she
was induced into a physical relationship by petitioner Anant on
the basis of promise to marry, stands irrefutably falsified.

21. It is obvious that the prosecutrix entered into physical
relationship with the petitioner with her eyes open during the
subsistence of her previous valid marriage. It was a relationship
between two consenting adults who knew their respective
minds, for mutual sexual enjoyment without any commitment to
marry. The conduct of the petitioner as brought forth in the
statement of the prosecutrix that he floated in and out of her
residence as he pleased, indicate as much. In any case, a woman
like prosecutrix well acquainted with of the ways of the world,
would not wait for an inordinately long period of four years and
eight months to realize that the petitioner had no intention to
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marry her. Had she entered into physical relationship on the
promise of marriage, she would have realized long ago that this
relationship had no future and would have walked out of it long
ago. This also indicates that there indeed was no commitment to
marry.

22. The Supreme Court has held in the case of State of
Haryana Vs. Bhajan Lal, AIR 1992 SUPREME COURT 604 that
in following categories of cases, the Court may, in exercise of
powers under
Article 226 of the Constitution or under Section
482 of the Cr.P.C., interfere with proceedings relating to
cognizable offence to prevent abuse of the process of any Court
or otherwise to secure the ends of justice; however, the power
should be exercised sparingly and that too in rarest of rare
cases.

1) Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case against the accused.

2) Where the allegations in the First Information Report and other materials, if
any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under S.156(1)
of the Code except under an order
of a Magistrate within the purview of S.155(2)
of the Code.

3) Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.

4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police
officer without an order of a Magistrate as contemplated under S.155(2)
of the
Code.

5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the accused.

6) Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in
the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.

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7) Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge.

23. As already observed hereinabove the present one appears
to be a case of consent between the two adults for mutual
physical gratification. This is also a case where the false
promise of marriage was allegedly made during the subsistence
of earlier marriage of the prosecutrix. In these circumstances, it
appears that the case has been instituted after intimate
relationship between the parties for a period of about 5 years
had gone sour; therefore, the case falls in category number 7
enumerated above. In this backdrop, the allegation of the
prosecutrix that the petitioner had humiliated and insulted her
with reference to scheduled castes on the railway station in
public view, can also not be relied upon.

24 . In aforesaid view of the matter, allowing the prosecution
to continue in the case would amount to abuse of the process of
Court; therefore, it is necessary to quash the proceedings in
order to serve the ends of justice. As such, the FIR in the instant
case is liable to be quashed.

25. Consequently, this miscellaneous criminal case instituted
under
Section 482 of the Cr.P.C. is allowed. The first
information report number 33/2015, registered by Police Station
Mahila Thana, Bhopal dated 25.3.2015, is quashed.

26. Criminal Revision No.2195/2015 is also allowed and the
charge framing under
Section 376 (1) of the I.P.C. and Sections
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3 (2)(v) and 3(1)(xii) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1969, is also set aside.

(C.V. Sirpurkar)
Judge

b

BIJU BABY
2017.09.26
23:46:42 -07’00’
HIGH COURT OF MADHYA PRADESH : AT JABALPUR

Criminal Revision No.2195/2015

Miscellaneous Criminal Case No.6960/2015

Anant Vijay Soni

-Vs-

State of Madhya Pradesh and another

ORDER

Post for : 21/09/2017

(C.V. Sirpurkar)
Judge

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