Surya Prakash vs Smt. Rachna on 10 October, 2017

M.Cr.C. No.16718/2015
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HIGH COURT OF MADHYA PRADESH : JABALPUR

MCRC No. 16718/2015

Surya Prakash ………Petitioner
Versus
Smt. Rachna ……..Respondent

Coram:
Hon’ble Shri Justice Hemant Gupta, Chief Justice
Hon’ble Shri Justice Vijay Kumar Shukla, J.

Shri Amit Seth, Advocate as Amicus Curiae for the petitioner.
Shri D.K. Dixit, Advocate as Amicus Curiae for the respondent.

Whether approved for reporting? : Yes

Law Laid Down: If there is any instance of domestic violence, for
which an affirmative or prohibitory order is passed under Section 18 of
the Protection of Women from Domestic Violence Act, 2005, the
provisions of Section 31 of the Act can be invoked. Non-payment of
maintenance allowance is also a breach of ‘protection order’ or ‘interim
protection order’. The order passed in Sunil @ Sonu vs. Sarita Chawla
(Smt.), reported in 2009 (5) MPHT 319 is in accordance with the
provisions of the Act.

Significant paragraphs: 9, 10, 11 12.

Heard on : 03/10/2017
Passed on :10/10/2017

O R D E R

{ 10th October, 2017}
M.Cr.C. No.16718/2015
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Per: Hemant Gupta, Chief Justice:

1. The present petition has been placed before this Bench in

view of the reference made by the learned Single Bench on 11.09.2015

for the opinion on the following questions:-

“(i) Whether non-payment of maintenance allowance can
be treated to be a breach of ‘protection order’ or
‘interim protection order’? If it is not a breach of said
orders, whether Section 31 of the DV Act can be
invoked?

(ii) Whether any other breach of any provision of the
DV Act, which does not fall within the ambit of
‘protection order’ or ‘interim protection order’, can be
a basis to invoke Section 31 of the Act?

(iii) Whether the order passed in Sunil @ Sonu vs. Sarita
Chawla (Smt.), reported in 2009 (5) MPHT 319, is in
accordance with the scheme of DV Act?”

2. None appeared for the parties on number of dates and,

therefore, amicus were appointed to decide the important questions of

law arising from the order passed by the learned Single Bench.

3. The brief facts leading to the present petition are that the

respondent-wife filed a petition under the Protection of Women from

Domestic Violence Act, 2005 (for short “the Act”) against her husband

inter alia on the ground that her marriage took place on 11.05.2011 and
M.Cr.C. No.16718/2015
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she gave birth to a baby boy. The learned trial Court passed an order on

30.10.2013 that the non-applicant/ present petitioner and his family

members will not harass the wife and she be also paid Rs.2,500/- per

month as maintenance and Rs.20,000/- as compensation. An appeal

was filed against the said order which was partly allowed on

11.09.2014 whereby the amount of compensation was set aside.

4. The respondent-wife filed an application under Section 31

of the Act on account of non-payment of the maintenance amount. The

Court registered the case against the petitioner which order is subject

matter of challenge in the present petition.

5. The argument raised is that complaint under Section 31 of

the Act is not maintainable as penalty is provided in the said provision

for breach of protection order and not for breach of an order of grant of

maintenance.

6. The learned Single Bench of this Court in a judgment

reported as 2009(5) MPHT 319 (Sunil @ Sonu vs. Sarita Chawla (Smt.)

held as under:-

“Whether the interim order passed by the learned
Trial Court whereby the maintenance was awarded is
a protection order and on account of breach of
protection order, the proceedings can be initiated
against the petitioner under Section 31 of the Act.”

M.Cr.C. No.16718/2015
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The said question was dealt with as under:-

“Section 18 of the Act empowers the Court for
passing a protection order against a respondent, who
commits any act of domestic violence. In exercise of
the powers conferred by Section 37 of the Act and
Central Govt. has framed the Rules. As per rule 6
every application of the aggrieved person under
section 12 of the Act is required to be filed in Form

11. Sub-clause III of Form No.1 deals with economic
violence according to which not providing money for
maintaining of food, clothes, medicine etc. is
amounting to the economic violence for which the
Court is empowered to pass a protection order. As per
sub-section (1) of section 28 of the Act the
proceedings are required to be governed by the
provisions of Criminal Procedure Code. As per sub-
section (2) of section 28, the Court is not prevented
from laying down its own procedure for disposal of
the case where no amount of maintenance has been
paid by the petitioners, no illegality was committed
by the learned trial Court in initiating the proceedings
under section 31 of the Act.”

It is the said finding which was doubted by the learned

Single Bench while making reference to the larger Bench.

M.Cr.C. No.16718/2015
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7. Learned counsel for the petitioner relied upon the following

judgments:-

(i) Smt. Kanchan vs. Vikramjeet Setiya (Cr. Misc. Petition
No.123/2010, decided on 13.02.2012 by Single Bench of the
Rajasthan High Court).

(ii) Manoj Anand vs. State of U.P. and another (Criminal Revision
No.635/2011, decided on 10.02.2012 by the Single Bench of
Allahabad High Court).

(iii) Mr. Francis Cyril C Cunha vs. Smt. Lydia Jane D’Cunha
(Criminal revision Petition No.758/2015, decided on 18.12.2015
by the Single Bench of Karnataka High Court).

(iv) Mr. Sachin vs. Sau. Sushma (Criminal Writ Petition
No.305/2014, decided on 06.05.2014 by the Single Bench of
Nagpur Bench of Bombay High Court).

(v) S. Jeeva Ashok vs. Kalarani reported in (2015) 1 MLJ (Crl)

549.

On the basis of such judgments, it is contend that for non-

payment of maintenance, the proceedings under Section 31 of the Act

cannot be initiated. In the case of Smt. Kanchan (supra) it was held

that maintenance is provided under Section 20 of the Act dealing with

monetary relief, therefore, the said order can be executed in the manner

provided under Section 125 of the Code of Criminal Procedure.

8. On the other hand, learned counsel for the respondent

pointed out that Section 18 of the Act is in two parts. The first part is to
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grant an affirmative protection order in favour of the aggrieved person

whereas the second part is to prohibit the respondent from various acts

enumerated therein. The use of expression “and” makes the provision

disjunctive i.e. first part is an affirmative action whereas the second

part is prohibitory action. It is further contended that Section 3 of the

Act defines “domestic violence” which includes economic abuse. The

“economic abuse” has been defined in Explanation I of Section 3 of the

Act. Therefore, domestic violence as contemplated under Section 18 of

the Act includes economic abuse i.e. deprivation of economic and

financial resources to which the aggrieved person is entitled under any

law or custom. Therefore, the wife is entitled to file a complaint under

Section 31 of the Act for non-payment of the maintenance- an

economic abuse which is, in fact, in terms of Section 18 of the Act for

which complaint is maintainable under Section 31 of the Act.

9. It is advantageous to extract the relevant provisions of the Act,

which read as under:-

“2. Definitions. – In this Act, unless the context otherwise
requires, –

*** *** ***

(g) “domestic violence” has the same meaning as
assigned to it in section 3;

*** *** ***
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“3. Definition of domestic violence.- For the purposes of
this Act, any act, omission or commission or conduct
of the respondent shall constitute domestic violence in
case it –

(a) harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical, of
the aggrieved person or tends to do so and includes
causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse; or

*** *** ***

Explanation I.–For the purposes of this section,–

(i) “physical abuse” means any act or conduct
which is of such a nature as to cause bodily pain,
harm, or danger to life, limb, or health or impair
the health or development of the aggrieved
person and includes assault, criminal
intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual
nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes–

(a) insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not
having a child or a male child; and

(b) repeated threats to cause physical pain to any
person in whom the aggrieved person is
interested.

M.Cr.C. No.16718/2015
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(iv) “economic abuse” includes–

(a) deprivation of all or any economic or financial
resources to which the aggrieved person is
entitled under any law or custom whether
payable under an order of a court or otherwise
or which the aggrieved person requires out of
necessity including, but not limited to,
household necessities for the aggrieved person
and her children, if any, stridhan, property,
jointly or separately owned by the aggrieved
person, payment of rental related to the shared
household and maintenance;

(b) disposal of household effects, any alienation of
assets whether movable or immovable,
valuables, shares, securities, bonds and the like
or other property in which the aggrieved person
has an interest or is entitled to use by virtue of
the domestic relationship or which may be
reasonably required by the aggrieved person or
her children or her stridhan or any other property
jointly or separately held by the aggrieved
person; and

(c) prohibition or restriction to continued access to
resources or facilities which the aggrieved
person is entitled to use or enjoy by virtue of the
domestic relationship including access to the
shared household.

M.Cr.C. No.16718/2015
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Explanation II.–For the purpose of determining
whether any act, omission, commission or
conduct of the respondent constitutes “domestic
violence” under this section, the overall facts and
circumstances of the case shall be taken into
consideration.” (Emphasis supplied)

“18. Protection orders.–The Magistrate may, after
giving the aggrieved person and the respondent an
opportunity of being heard and on being prima facie satisfied
that domestic violence has taken place or is likely to take
place, pass a protection order in favour of the aggrieved
person and prohibit the respondent from–

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of
domestic violence;

*** *** ***

(g) committing any other act as specified in the protection
order.” (Emphasis Supplied)

“20. Monetary reliefs.– (1) While disposing of an
application under sub-section (1) of section 12, the
Magistrate may direct the respondent to pay monetary relief
to meet the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved person as a
result of the domestic violence and such relief may include
but is not limited to–

(a) the loss of earnings;

(b) the medical expenses;

M.Cr.C. No.16718/2015
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(c) the loss caused due to the destruction, damage or
removal of any property from the control of the
aggrieved person; and

(d) the maintenance for the aggrieved person as well as her
children, if any, including an order under or in addition
to an order of maintenance under section 125 of the
Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force.

*** *** ***”

“31. Penalty for breach of protection order by

respondent – (1) A breach of protection order, or of an
interim protection order, by the respondent shall be an
offence under this Act and shall be punishable with
imprisonment of either description for a term which
may extend to one year, or with fine which may extend
to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as
far as practicable be tried by the Magistrate who has
passed the order, the breach of which has been alleged
to have been caused by the accused.

(3) While framing charges under sub-section
(1), the Magistrate may also frame charges under
section 498A of the Indian Penal Code (45 of 1860) or
any other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the case may be,
if the facts disclose the commission of an offence under
those provisions.”

M.Cr.C. No.16718/2015
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10. Before, we deal with respective contentions of the learned

counsel, some principals of interpretation needs to be discussed. The

object of the Act is to provide effective protection of the rights of

women who are victims of violence of any kind occurring within the

family and for matters connected therewith or incidental thereto. The

provisions of the Act came up for consideration before the Supreme

Court in the judgment reported as (2016) 10 SCC 165 (Hiral P.

Harsora and others vs. Kusum Narottamdas Harsora and others). In

the said judgment, the Court struck down, the words “adult male”

appearing in Section 2(q) of the Act as discriminatory. While

discussing the provisions of the Act, the Court held as under:-

“16. A cursory reading of the Statement of
Objects and Reasons makes it clear that the
phenomenon of domestic violence against women is
widely prevalent and needs redressal. Whereas
criminal law does offer some redressal, civil law does
not address this phenomenon in its entirety. The idea
therefore is to provide various innovative remedies in
favour of women who suffer from domestic violence,
against the perpetrators of such violence.

18. What is of great significance is that the
2005 Act is to provide for effective protection of the
rights of women who are victims of violence of any
kind occurring within the family. The Preamble also
M.Cr.C. No.16718/2015
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makes it clear that the reach of the Act is that
violence, whether physical, sexual, verbal, emotional
or economic, are all to be redressed by the statute.
That the perpetrators and abettors of such violence
can, in given situations, be women themselves, is
obvious. With this object in mind, let us now examine
the provisions of the statute itself.”

11. In a judgment reported as (2016) 10 SCC 329 (Lanco

Anpara Power Limited vs. State of Uttar Pradesh and others), while

considering the provisions of Building and Other Construction

Workers’ (Regulation of Employment and Conditions of Service) Act,

1996 held that since the purpose of the Act is to take care of a particular

necessity i.e. welfare of unorganised labour class involved in

construction activity, that needs to be achieved and not to be discarded,

therefore, doctrine of purposive interpretation also gets attracted. The

relevant extract of the judgment reads as under:-

“45. In taking the aforesaid view, we also
agree with the learned counsel for the respondents
that “superior purpose” contained in the BOCW Act
and the Welfare Cess Act has to be kept in mind
when two enactments – the Factories Act on the one
hand and the BOCW Act/Welfare Cess Act on the
other hand, are involved, both of which are welfare
legislations. [See Allahabad Bank v. Canara Bank,
(2000) 4 SCC 406, which has been followed in
M.Cr.C. No.16718/2015
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Pegasus Assets Reconstruction (P) Ltd. v. Haryana
Concast Ltd., (2016) 4 SCC 47 in the context of the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 and
the Companies Act, 1956.] Here the concept of “felt
necessity” would get triggered and as per the
Statement of Objects and Reasons contained in the
BOCW Act, since the purpose of this Act is to take
care of a particular necessity i.e. welfare of
unorganised labour class involved in construction
activity, that needs to be achieved and not to be
discarded. Here the doctrine of purposive
interpretation also gets attracted which is explained in
recent judgments of this Court in Richa Mishra v.
State of Chhattisgarh, (2016) 4 SCC 179 (SCC p.
197, para 30) and Shailesh Dhairyawan v. Mohan
Balkrishna Lulla, (2016) 3 SCC 619 (SCC p. 641,
para 31).”

12. In another recent seven-judge Bench judgment reported as

(2017) 2 SCC 629 (Abhiram Singh vs. C.D. Commachen (Dead) by

Legal Representatives and others, the majority judgment is that the

conflict between giving a literal interpretation or a purposive

interpretation to a statute or a provision in a statute is perennial. It can

be settled only if the draftsman gives a long-winded explanation in

drafting the law but this would result in an awkward draft that might

well turn out to be unintelligible. The Court held as under:-

M.Cr.C. No.16718/2015
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36. The conflict between giving a literal interpretation or a
purposive interpretation to a statute or a provision in a statute is
perennial. It can be settled only if the draftsman gives a long-winded
explanation in drafting the law but this would result in an awkward
draft that might well turn out to be unintelligible. The interpreter has,
therefore, to consider not only the text of the law but the context in
which the law was enacted and the social context in which the law
should be interpreted. This was articulated rather felicitously by Lord
Bingham of Cornhill in R. (Quintavalle) v. Secy. of State for

Health19 when it was said: (AC p. 695 C-H, paras 8-9)

“8. The basic task of the court is to ascertain and give effect to
the true meaning of what Parliament has said in the enactment to
be construed. But that is not to say that attention should be
confined and a literal interpretation given to the particular
provisions which give rise to difficulty. Such an approach not
only encourages immense prolixity in drafting, since the
draftsman will feel obliged to provide expressly for every
contingency which may possibly arise. It may also (under the
banner of loyalty to the will of Parliament) lead to the frustration
of that will, because undue concentration on the minutiae of the
enactment may lead the court to neglect the purpose which
Parliament intended to achieve when it enacted the statute. Every
statute other than a pure consolidating statute is, after all, enacted
to make some change, or address some problem, or remove some
blemish, or effect some improvement in the national life. The
court’s task, within the permissible bounds of interpretation, is to
give effect to Parliament’s purpose. So the controversial
provisions should be read in the context of the statute as a whole,
and the statute as a whole should be read in the historical context
of the situation which led to its enactment.

M.Cr.C. No.16718/2015
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9. There is, I think, no inconsistency between the rule that
statutory language retains the meaning it had when Parliament
used it and the rule that a statute is always speaking. If
Parliament, however long ago, passed an Act applicable to dogs,
it could not properly be interpreted to apply to cats; but it could
properly be held to apply to animals which were not regarded as
dogs when the Act was passed but are so regarded now. The
meaning of “cruel and unusual punishments” has not changed
over the years since 1689, but many punishments which were not
then thought to fall within that category would now be held to do
so. The courts have frequently had to grapple with the question
whether a modern invention or activity falls within old statutory
language: see Bennion, Statutory Interpretation, 4th Edn. (2002)
Part XVIII, Section 288. A revealing example is found in Grant
v. Southwestern and Country Properties Ltd., 1975 Ch 185 :
(1974) 3 WLR 221, where Walton, J. had to decide whether a
tape recording fell within the expression “document” in the
Rules of the Supreme Court. Pointing out (at p. 190) that the
furnishing of information had been treated as one of the main
functions of a document, the Judge concluded that the tape
recording was a document.”

44. Another facet of purposive interpretation of a statute is
that of social context adjudication. This has been the subject matter
of consideration and encouragement by the Constitution Bench of
this Court in Union of India v. Raghubir Singh (Dead) by Lrs. (1989)
2 SCC 754. In that decision, this Court noted with approval the view
propounded by Justice Holmes, Julius Stone and Dean Roscoe
Pound to the effect that law must not remain static but move ahead
with the times keeping in mind the social context. It was said:

“10. But like all principles evolved by man for the
regulation of the social order, the doctrine of binding
precedent is circumscribed in its governance by perceptible
limitations, limitations arising by reference to the need for
M.Cr.C. No.16718/2015
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readjustment in a changing society, a readjustment of legal
norms demanded by a changed social context. This need for
adapting the law to new urges in society brings home the truth
of the Holmesian aphorism that “the life of the law has not
been logic it has been experience” (Oliver Wendell Holmes),
and again when he declared in another study (Oliver Wendell
Holmes, Common Carriers and the Common Law) (1943) 9
Curr LT 387 at p. 388), that “the law is forever adopting new
principles from life at one end”, and “sloughing off” old ones
at the other. Explaining the conceptual import of what
Holmes had said, Julius Stone elaborated that it is by the
introduction of new extra-legal propositions emerging from
experience to serve as premises, or by experience-guided
choice between competing legal propositions, rather than by
the operation of logic upon existing legal propositions, that
the growth of law tends to be determined (Julius Stone, Legal
Systems Lawyers Reasoning, pp. 58-59).”

(emphasis supplied)
A little later in the decision it was said: (SCC pp. 767-68, para 13)

“13. Not infrequently, in the nature of things there is
a gravity-heavy inclination to follow the groove set by
precedential law. Yet a sensitive judicial conscience often
persuades the mind to search for a different set of norms more
responsive to the changed social context. The dilemma before
the Judge poses the task of finding a new equilibrium
prompted not seldom by the desire to reconcile opposing
mobilities. The competing goals, according to Dean Roscoe
Pound, invest the Judge with the responsibility “of proving to
mankind that the law was something fixed and settled, whose
authority was beyond question, while at the same time
enabling it to make constant readjustments and occasional
radical changes under the pressure of infinite and variable
human desires” (Roscoe Pound, An Introduction to the
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Philosophy of Law, p. 19. The reconciliation suggested by
Lord Reid in The Judge as Law Maker (1972) The Journal of
Public Teachers of Law 22 at pp. 25-26, lies in keeping both
objectives in view, ‘that the law shall be certain, and that it
shall be just and shall move with the times’.”

13. We have heard the learned counsel for the parties and find

that the orders passed by the Single Benches of different High Courts

do not lay down correct law. In as much as, the definition of “domestic

violence” including economic abuse has not been considered.

14. Section 18 of the Act empowers the Magistrate to pass a

protection order in affirmative in favour of an aggrieved person when

he is satisfied that domestic violence has taken place or is likely to take

place. The Magistrate is also competent to prohibit the respondent from

committing any act of domestic violence or such other acts as

mentioned in the said section. The domestic violence has been defined

in Section 3 of the Act which includes causing physical abuse, sexual

abuse, verbal and emotional abuse and economic abuse. The “economic

abuse” has been explained in clause (iv) of Explanation I of Section 3

of the Act wherein deprivation of all or any economic or financial

resources to which the aggrieved person is entitled under any law or

custom whether payable under an order of a court or otherwise or

which the aggrieved person requires out of necessity is an expression of

“domestic violence”.

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15. The amount of maintenance awarded by the Magistrate is

an amount which an aggrieved person requires to meet necessities of

life and for survival. Such amount is not limited to household

necessities but also includes payment of rental related to the shared

household. It includes maintenance as well. Therefore, the order passed

by the Magistrate granting maintenance is an affirmative order of

protection in relation to domestic violence as defined in Section 3 of

the Act. For such violation, the penalty is provided in Section 31 of the

Act.

16. Section 20 of the Act deals with grant of monetary relief to

meet the expenses incurred and the losses suffered by aggrieved person

and any child of the aggrieved person as a result of domestic violence.

Such provision enlarges the scope of domestic violence as defined in

Section 3 of the Act. In terms of Section 3 of the Act, the “economic

abuse” includes deprivation of all or any economic or financial

resources, payment of rental related to shared household and

maintenance. Whereas Section 20 includes a loss of earnings, medical

expenses, loss caused due to destruction, damage or removal of any

property as also the maintenance. The grant of monetary relief under

Section 20 does not exclude the amount of maintenance which can be
M.Cr.C. No.16718/2015
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awarded in terms of Section 18 of the Act as part of affirmative order in

respect of the domestic violence as defined in Section 3 of the Act.

Therefore, we find that non-payment of maintenance is a breach of

protection order; therefore, Section 31 of the Act can be invoked.

Therefore, in respect of first question, it is held that non-payment of

maintenance allowance is a breach of protection order for which

proceedings under Section 31 of the Act can be invoked.

17. The second question is required to be examined in the light

of definition of Section 3 of the Act. If there is any instance of domestic

violence, for which an affirmative or prohibitory order is passed under

Section 18 of the Act, the provisions of Section 31 of the Act can be

invoked.

18. In respect of the last question, we find that the order passed

in Sunil @ Sonu vs. Sarita Chawla (Smt.), reported in 2009 (5)

MPHT 319 is in accordance with the Act.

19. We find that the purposive interpretation is to be given to

the provisions of the Act, in view of the intent of the Act to provide

support to the victims of domestic violence. Thus we hold that in view

of the definition of domestic violence, proceedings under Section 31 of

the Act would be maintainable.

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20. In the light of the aforesaid, the petition be posted for

hearing as per Roster.

(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
psm

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