Himachal Pradesh High Court
Pooja Kashyap vs State Of H. P. Ors on 29 December, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.WP No. 15 of 2023
.
Reserved on: 26.12.2023
Decided on: 29.12.2023
Pooja Kashyap …Petitioner
Versus
State of H. P. Ors. …Respondents
Coram:
of
Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon’ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner :
rt Mr. Atul Jhingan, Advocate.
For the Respondents : Mr. I. N. Mehta, Sr. Addl. A.G. with Ms.
Sharmila Patial and Mr. Navlesh Verma,
Addl. A.G. for respondents-State.
Tarlok Singh Chauhan, Judge
The instant petition has been filed for grant of the
following substantive reliefs:-
A) The Hon’ble Court may be pleased to issue a writ of
habeas corpus directing the respondents No. 1 to 5 to
produce the minor son of the petitioner, Master Adhrit,
before this Hon’ble Court.
B) The Hon’ble Court may be further pleased to direct the
respondents No. 1 to 3 authorities to take appropriate
action against respondents No. 4 and 5 for their illegal
acts.
2. It is averred that the petitioner was married to
respondent No. 4 on 30.11.2012 at village Jaswani, Tehsil and
District Bilaspur, H.P. The petitioner had accompanied
1
Whether reporters of the local papers may be allowed to see the judgment? yes
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respondent No. 4 (husband) to his matrimonial home at Nasik
and thereafter to his place of posting at Alwar. The relations
.
between the petitioner and respondents No. 4 (husband) and 5
(mother-in-law) were not cordial from the inception of marriage.
3. The petitioner gave birth to a male child (Adhrit) on
30.12.2013 but the situation became so unbearable that she
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alongwith the infant had to be brought to her native place at
Ghumarwin from Nasik by her mother and maternal uncle.
4.
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The petitioner was constrained to approach the Court
under the Protection of Women from Domestic Violence Act
wherein apart from other reliefs she also claimed custody of the
minor child (Adhrit). The learned Trial Court vide order dated
08.05.2018 allowed the interim custody of the minor child to the
petitioner and at the same time allowed visitation right to
respondent No. 4.
5. The Respondent No. 4 assailed the order of the
learned Trial Court before the learned Sessions Judge, Bilaspur,
however, the appeal so filed was dismissed vide judgment dated
19.03.2019.
6. Thereafter, respondent No. 4 assailed both the
aforesaid orders by filing Criminal Revision No. 327 of 2019 and
even this revision petition was dismissed vide judgment dated
07.01.2022, by specifically observing that the child was in the
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3
custody of the mother when the same was taken away by
respondent No. 4. This Court also made it clear that the order
.
passed by the learned Magistrate would only amount to a
temporary custody as the final adjudication is to be made by the
competent Court under the Guardians and Wards Act, 1890, but
no proceedings thereunder have been initiated by respondent
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No. 4.
7. It is further averred that after passing of the
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judgment by this Court on 07.01.2022, respondent No. 4 in
furtherance of a conspiracy came to Bilaspur on 16/17.03.2022
and apologised to the petitioner and her parents and offered to
take the petitioner and the child with him, with a promise to
mend his ways and take good care of them. The petitioner in an
endeavour to mend fences, agreed to accompanied respondent
No. 4 alongwith the minor child. Respondent No. 4 took them to
Jammu, where he was posted at that time. The petitioner
alongwith the minor (Adhrit) stayed with him at Jammu for about
one year but the behaviour of respondent No. 4 had not changed
much and he would often ill-treat and physically abuse her under
the influence of alcohol, but the petitioner tried to adjust and
endure in the hope that the child was able to get attention, love
and affection of both parents, but in vain.
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8. Respondent No. 4 joined an IIM Course at Mumbai
and left the petitioner and Adhrit with respondent No. 5 at his
.
permanent residence at Nasik for about six months. Thereafter,
respondent No. 4 came to Nasik after completing course and
physically abused the petitioner and forcefully turned her out of
house on 10.09.2023.
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9. The petitioner sought refuge with some neighbours
and later shifted to Army Guest House alongwith her son. The
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petitioner was later forcibly taken to Sujata Birla Hospital at
Nasik by respondents No. 4 and 5 on 14.09.2023, where she was
deceitfully got administered some sedative medicines and the
minor child was surreptitiously and illegally taken away from her
custody.
10. Respondent No. 4 telephonically informed the
petitioner’s family at Bilaspur to take her away from the hospital
where she had been admitted. The petitioner’s brother and
paternal uncle rushed to Nasik to bring back the petitioner. They
tried to get in touch with respondents No. 4 and 5 but they did
not answer their calls. Respondents No. 4 and 5 locked the house
at Nasik and their whereabouts were not known to the petitioner.
The petitioner tried to find out the whereabouts of respondents
No. 4 and 5, but to no avail, constraining the petitioner to lodge a
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5
complaint with the Police at Nasik as well as Police Women Cell
at Nasik.
.
11. The petitioner came back to Bilaspur and thereafter
lodged a complaint at PS Bharari in Bilaspur, but the
whereabouts of respondents No. 4 and 5 and the minor child
(Adhrit) could not be ascertained. The police although received
of
the complaint, but lodged the FIR only on 17.11.2023. It is
further averred that mobile numbers of respondents No. 4 and 5
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though available but she is unable to contact them since her
mobile number has been blocked by them. The petitioner had
tried to call them from other numbers but they would disconnect
the phone as soon as they got to know that it is the petitioner
who is making the call.
12. It is in this background that the petitioner has filed
the instant petition for the grant of the reliefs as quoted above.
13. When the matter came up for consideration on
24.11.2023, we, after going through the petition and the
arguments addressed, were not even inclined to issue notice but
on the restricted and limited submissions of the learned counsel
for the petitioner that the petitioner is only interested to know
about the well being of the minor as also the whereabouts of
respondents No. 4 and 5, issued notice confined to officials-
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respondents No. 1 to 3, and directed them to file a status report
by the next date of hearing.
.
14. When the matter came up for consideration on
01.12.2023, the investigating agency filed the status report but
we are not satisfied with the progress made therein and directed
the I.O. to remain present alongwith the relevant record on
of
05.12.2023. It is thereafter that the I.O. filed his report and we
recorded satisfaction with regard to the progress made so far.
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However, we directed the State of file a fresh status report on
19.12.2023, which was accordingly done by the State and when
the matter came up for consideration on 19.12.2023, the learned
counsel for the petitioner sought a week’s time to go through the
same.
15. As observed above, the limited prayer of the
petitioner at the time when the notice was issued to know the
whereabouts of minor child, her husband respondent No. 4 and
her mother-in-law respondent No. 5, but now the petitioner has
argued that the custody of the minor be resorted to her.
16. In the status report that was filed on 19.12.2023, it
has been stated that a team headed by ASI Ravi Guleria
comprising of H. C. Vikas Sharma No. 98 and L.C. Manju No. 236
was constituted to find out the whereabouts of the minor in
compliance to the direction passed by this Hon’ble Court and
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also in further investigation to FIR No. 131/23 lodged by the
petitioner on 17.12.2023, under Sections 498A, 323 and 34 IPC,
.
Police Station Bhrari.
17. The police team reached Police Station Deo Lali,
camp at Nasik, where they apprised the local police of the writ
petition as also the FIR and copies thereof were also given to
of
them with a further request to cooperate in the matter. The
Commissioner of Police, Nasik vide his letter No. 3165, dated
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04.12.2023, directed the local police to cooperate in the
investigation. With the cooperation of the local police, the police
team went to Army Public School Deo Lali, where the son of the
petitioner was stated to be studying and on enquiry, it was found
that the minor child had been enrolled in the school vide
Admission No. 20193, but had not been attending school after
04.09.2023. Whereas as per the report dated 11.09.2023, the
petitioner had alleged that her husband had given beating,
meaning thereby, that prior to 11.09.2023, the petitioner and
respondent No. 4, even on 04.09.2023 had been residing
together and the minor had not been going to school.
18. Thereafter, the police team associated mother of
respondent No. 4 i.e. respondent No. 5 in investigation and
recorded her statement, in which she stated that respondent No.
4 was doing some private job, but she was not aware about the
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8
company. She also stated that her son respondent No. 4 residing
with his minor son (Adhrit) in a rented premises and he came
.
home every Friday and returned back on Sundary alongwith his
minor son Adhrit. Respondent No. 5 was thereafter released on
bail under Section 41(1)(A) Cr.P.C. The local police certified the
character of respondent No. 5 to be good and stated that there
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was no other case lodged against her.
19. Thereafter, respondent No. 4 was contacted over the
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phone and he informed that he cannot come to Nasik. The
respondent No. 4 was then directed to get a whatsapp call made
from the minor to the petitioner. During this call, the petitioner
informed the minor that she had come alongwith the police to
take him, upon which respondent No. 4 took the mobile and said
that the child is perfectly all right, safe and sound and after this,
informed that he could let the petitioner meet with minor child
Adhrit at Vamukaam Malun Toll Post. Police Team stated that they
would be reaching there by taxi and he should meet them. After
this respondent No. 4 cut the conversation.
20. Thereafter, the police team hired a taxi and travelled
about 170 kms. and reached Mulun Toll Post and contacted with
respondent No. 4 over his mobile but his mobile was found to be
switched off. It was then the service provider was contacted and
asked to give location but it was informed that since the mobile
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had been switched off, therefore, the location could not be
available. The police team thereafter searched for respondent
.
No. 4 in the area, but he could not be found, because of which
the police team was then given orders to remain in and around
the Mulun Toll Post for which they had stayed in a hotel.
21. Next morning of 05.12.2023, the police team
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reached back at Deo Lali Camp and started further investigation.
Respondent No. 4 was repeatedly contacted over telephone and
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was even messages were repeatedly given on whatsapp to
associate himself with the investigation but the respondent
mobile found to be switched off.
22. Later on 05.12.2023, respondent No. 4 gave a
message to the police team on the whatsapp and stated that he
had to leave for Bangalore for some urgent work and for this
reason he could not join the police investigation. On repeated
whatsapp conversation, finally respondent No. 4 stated that he
would get the minor before the police team provided the
petitioner is not with them, because she would fight and tried to
impress upon the child, so that she can take the minor child
away. Upon this, respondent No. 4 was informed that the
petitioner would be made to stay in the hotel, upon which,
respondent No. 4 agreed to get the child available at 10:00 a.m.
on 07.12.2023 at Railway Station Kalyan Junction, Mumbai.
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23. Thereafter, the police team went to the Kalyan
Junction on 07.12.2023, where respondent No. 4 was present
.
alongwith his minor child and was informed about the pendency
of the writ petition and orders passed thereupon and also the
FIR. The statement of respondent No. 4 was recorded wherein he
disclosed that his wife i.e. petitioner was suffering from some
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mental disease, for the treatment whereof she was admitted at
Sujata Birla Hospital on 14.09.2023, but on 16.09.2023, brother
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and uncle of the petitioner came and got her discharged and
took her to village Jaswani. He further disclosed that he has old
mother, who is staying at the permanent address because of
which he takes the minor to his work-place where he is imparted
tuition. The local police certified the character of respondent No.
4 and stated that apart from the instant case there is no other
case registered against him and the status report has been
summed up as under:-
It is requested to the Hon’ble High Court that the
respondent No. 4. Somnath Palde, has retired from Indian
army on voluntary retirement as a lieutenant Colonel
since, September, 2023 and is a permanent resident of
House No. C-2, Vaishnav Pushp, Sansari Village, Devlali,
Nasik, Mumbai and living with her mother (Tai) namely
Smt. Sushila Sant Palde, respondent No. 5, and child Adrit
Somnath. Respondent No. 4, Somnath Palde is presently
working as a Senior Manager in the Event Management
Company, headquarter at 402-B, Druv Building Gulmohar
Road Juhu, Mumbai and having mobile No. 75881-1995230/12/2023 20:32:44 :::CIS
11and works from home. In case of any event organized, he
visits the place occasionally as well. The Child, Adrit.
Somnath is presently residing with his father, Somnath
Palde, deferant No.4, in a rented house i.e. flat No. 1302 L-
Varaslona Puranik City, Thane (Mumbai). whose owner is
Neeraj Yadav having mobile No. 98903-26002 and doingwell. The child used to come with his father to his own
residential house situated at Sansari village Devlali, Nasik
on every Friday and goes back with his father on Sunday.
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The child, Adrit Somnath has been found to be enrolled
against admission No. 20193 in class five in Army Public
School Devlali, Nasik. But, as per the certificate issued by
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the School, the child, Adrit Somnath has not been found to
come to School since, 4th September, 2023, who ispresently found to be taking education through tuition,
whereas, according to the petitioner Pooja Somnath Palde,
she was beaten up by her husband on 11.09.2023, butbefore 11.09.2023, both husband and wife were living
together till 04.09.2023, and even during their stay
together, the child had not been going to School since,04.09.2023. respondent No.4, Somnath Palde, and
defendent No. 5. Smt. Sushila Sant Palde have beenassociated in the inquiry or investigation at Railway
Station Kalyan Junction, Mumbai and Police Station DevlaliCamp Nasik, respectively and the police team has made
face to face interaction with the child, Adrit Somnath at
Railway Station Kalyan Junction, Mumbai, the child is doing
well.
24. Thus, what would be clearly evident from the
aforesaid narration of fact is that the cause of action, if any, in
favour of the petitioner arose at Nasik i.e. in th State of
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12Maharashtra and no cause of action or part thereof has arisen
within the territorial jurisdiction of this Court.
.
25. Article 226 of the Constitution of India reads as
under:-
226. Power of High Courts to issue certain writs.
(1) Notwithstanding anything in article 32, every High
Court shall have power, throughout the territories inof
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any
Government, within those territories directions, orders or
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writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, orany of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions,
orders or writs to any Government, authority or person
may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which thecause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such
Government or authority or the residence of such person
is not within those territories.
(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a
petition under clause (1), without-
(a) furnishing to such party copies of such petition
and all documents in support of the plea for such
interim order; and30/12/2023 20:32:44 :::CIS
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(b) giving such party an opportunity of being heard,
makes an application to the High Court for the.
vacation of such order and
furnishes a copy of such application to the party in
whose favour such order has been made or the
counsel of such party, the High Court shall dispose ofthe application within a period of two weeks from the
date on which it is received or from the date on
which the copy of such application is so furnished,of
whichever is later, or where the High Court is closed
on the last day of that period, before the expiry of
rtthe next day afterwards on which the High Court is
open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or,as the case may be, the expiry of the said next day,
stand vacated.
(4) The power conferred on a High Court by this article
shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of article 32.
26. Even though there can be no quarrel with the
position in law that habeas corpus petition seeking custody of a
minor child is maintainable under Article 226 of the Constitution
of India, however, in the present case, it must be observed that
the Court that exercises its territorial jurisdiction over the minor
child (Adhrit) will be the Court where latter ordinarily resides in
terms of the provisions of the Family Court Act, 1984 and, in
particular, provisions of Section 7(g), which reads as under:-
7. Jurisdiction-(1) subject to the other provisions of this Act, a Family
Court shall-
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(a) xxxxx
(b) xxxxx
.
(c) xxxxx
(d) xxxxx
(e) xxxxx
(f) xxxxx
(g) a suit or proceeding in relation to the guardianship of the person or
the custody of, or access to, any minor.”
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27. A bare reading of the above provision clearly
specifies that where the Family Court has been established for
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any area, no District Court or any subordinate Civil Court shall in
relation to such area have or exercise any jurisdiction in respect
of any suit or proceedings referred to, in the explanation which
includes Clause (g) extracted above.
28. Section 9 of the Guardians and Wards Act, reads as
under:-
Section 9 in The Guardians and Wards Act, 1890
9. Court having jurisdiction to entertain application.–
(1) If the application is with respect to the guardianship of
the person of the minor, it shall be made to the District
Court having jurisdiction in the place where the minor
ordinarily resides.
(2) If the application is with respect to the guardianship of
the property of the minor, it may be made either to the
District Court having jurisdiction in the place where the
minor ordinarily resides or to a District Court having
jurisdiction in a place where he has property.
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(3) If an application with respect to the guardianship of
the property of a minor is made to a District Court other.
than that having jurisdiction in the place where the minor
ordinarily resides, the Court may return the application if
in its opinion the application would be disposed of more
justly or conveniently by any other District Court having
jurisdiction.
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29. The aforesaid section deals with jurisdiction of the
Court to entertain application, which makes it clear that
application in respect of guardianship of a person of a minor
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requires to be filed, where the minor ordinarily resides, the
jurisdiction of a Court is determined by law, not by consideration
of expediency or convenience or choices of party, who invoke
jurisdiction of such Court.
30. The Hindu Minority and Guardians Act, 1956 as also
the Guardians and Wards Act, 1890 are general and Central Acts.
The Family Courts Act, 1984, though a Central Act, is a special
Act and thereby will have a precedence over other Acts. The
Family Courts are established with a view to promote conciliation
in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters concerned therewith.
As the Family Courts Act, 1984, excludes the jurisdiction of the
District Courts in respect of proceedings relating to the
guardianship of a person or custody of, or access to, any minor
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the forum for application would be the Family court established
for the area where the minor resides.
.
31. We may at this stage fruitfully refer to the judgment
of the Hon’ble Supreme Court in Nawal Kishore Sharma vs.
Union of India (2014) 9 SCC 329, wherein it was observed as
under:-
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19. Regard being had to the discussion made
hereinabove, there cannot be any doubt that the question
whether or not cause of action wholly or in part for filing a
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writ petition has arisen within the territorial limit of any
High Court has to be decided in the light of the nature andcharacter of the proceedings under Article 226 of the
Constitution. In order to maintain a writ petition, the
petitioner has to establish that a legal right claimed byhim has been infringed by the respondents within the
territorial limit of the Court’s jurisdiction.
32. In view of the law laid down in Nawal Kishore
Sharma’s case (supra), with regard to the jurisdiction to entertain
a writ petition including a writ of habeas corpus, we are not
satisfied from the facts pleaded in support of the cause of action
in the present case that these facts constitute that a cause of
action has arisen in favour of the petitioner within the territorial
jurisdiction of this Court, so as to empower us to decide a
dispute, which has admittedly arisen outside the jurisdiction of
this Court.
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33. In the instant case, it is an admitted position that no
part of the claim falls within the territorial jurisdiction of this
.
Court, as the child even as per the petitioner has been residing
outside the territorial jurisdiction of this Court on and w.e.f.
16/17th March, 2022. The act of deprivation of the minor’s
custody and residence thus, arose at Nasik in the State of
of
Maharashtra. The petitioner has also admittedly filed a complaint
in this regard with the Police authority as well as Police Women
Cell at Nasik.
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34. In view of the aforementioned reasons, we are not
inclined to grant a writ of habeas corpus as prayed for by the
petitioner, since this Court has no territorial jurisdiction to
entertain the present petition as no cause of action or part
thereof has arisen within the territorial jurisdiction of this Court
so as to empower this Court to decide a dispute, as the minor
child (Adhrit), whose custody is sought for, admittedly resides in
Nasik, in the State of Maharashtra, beyond the territorial
jurisdiction of this Court. Needless to state that the petitioner is
at liberty to approach competent court exercising territorial
jurisdiction of the subject matter of the present proceedings. We
further clarify that we have not expressed any opinion on the
merit of the case.
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35. Before parting, we would like to place on record our
appreciation for the valuable assistance rendered by the
.
Commissioner of Police, Nasik and local police team of Deo Lali
for rendering necessary help to the police team of Police Station
Bhrari, and we would further place on record our appreciation for
the painstaking efforts made by the police team headed by ASI
of
Ravi Guleria and comprising of H.C. Vikas Sharma No. 98 and L.C.
Manju No. 236, in submitting its report in shortest possible time
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to this Court. Let this appreciation be entered by the quarter
concerned in the service records of the aforesaid officer/officials.
36. The petition stands dismissed, so also the pending
applications, if any.
Let a copy of this order be sent to the Director
General of Police, Maharashtra and Director General of Police,
H.P. for compliance and necessary action.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
th
29 December, 2023 Judge
(sanjeev)
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