Dismissed

Shailesh Singh v. State of U.P. and Another

Allahabad HC1 Mar 2023A482/7604/2023

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 CrPC seeking to quash a charge sheet and cognizance order arising from an assault case against government officers. Relying on settled law, the court held that the court cannot entertain defenses or assess evidence at the quashing stage since a prima facie case exists against the applicant.

What did the court decide?

Application under Section 482 CrPC seeking quashing of charge sheet and cognizance order dismissed.

Shailesh Singh Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2023)

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Court No. - 69

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Case :- APPLICATION U/S 482 No. - 7604 of 2023

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Applicant :- Shailesh Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamal Kishor Mishra,Jagdish Singh Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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List revised.

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Heard Sri Kamal Kishor Mishra, learned counsel for the applicant, Sri Sanjay Kumar Singh, learned counsel for the State and perused the record.

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The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned charge sheet dated 20.8.2021 as well as cognizance order dated 2.7.2022 (arising out of Case Crime No. 316 of 2019), State vs. Ram Bharose and others, under Sections 147, 186, 332, 336, 353, 504 I.P.C. and Section 7 Criminal Law Amendment Act, P.S.- Tarkulwa, District Deoria, pending in the court of Additional Civil Judge (Junior Division), Deoria and with the further prayer to stay the entire proceedings of aforesaid criminal case as well as impugned charge sheet and cognizance order, during pendency of the present application.

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The prosecution case as per the First Information Report lodged on 24.12.2019 at 23:56 hours, Police Station Tarkulwa, District Deoria by Revenue Inspector Tribhuvan Nath Gupta, against Ram Bharose, Shailesh Singh (the applicant), Anurag, Anoop and one unknown person, is that he is a Revenue Inspector of Tarkulwa, resident of village Chero, Police Station Salempur, District Deoria. On 24.12.2019 he along with SubDivisional Magistrate, Deoria and revenue team, went to village Mahuwa for inquiring in the complaint of Kamta Prasad @ Ramakant where the police team also accompanied them. When the said complaint was looked

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into Sub-Divisional Magistrate, Sadar, Deoria, S.H.O. of Police Station Tarkulwa along with other team members at about 4.00 p.m. reached the pond situated in village Madari Patti where some illegal encroachment was present for which an application was given by Smt. Israwati Devi, wife of Roodal. Spot inspection was being carried out by the joint team whereupon all of sudden Ram Bharose, Shailesh Singh (the applicant), Anurag Singh and Anoop and their family members around 8-10 ladies associated to them and unknown persons reached there and attacked them, they used derogatory languages and hurled abused on them which was resisted by the joint team on which they interfered the government officers from doing official works. They attacked on the team with bricks and stones as a result of which Dinesh Mishra, Sub-Divisional Magistrate, Sadar, Deoria, Narendra Pratap Rai S.H.O., Tarkulwa and Brajbhushan Sharma Revenue Inspector, Kanchanpur, Constable Dharmendra Kumar of Police Station Tarkulwa, lady Constable Asha, lady Constable Ranjana, lady Constable Khushbu, lady Constable Saroj and the first informant received injuries. All the said persons were taken for medical examination. They committed offence for obstructing government work and caused chaos. The matter went up for investigation after which a charge sheet dated 20.8.2021 was submitted by the police. In the meantime, the injured persons were medically examined. The trial court subsequently vide its order dated 2.7.2022 took cognizance upon the charge sheet and summoned the applicant and other accused persons under the aforesaid section. The present application under Section 482 Cr.P.C. has thus been filed with the aforesaid prayers.

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Learned counsel for the applicant argued that there is a land situated in village Tarkulwa Madari Patti as Deeh Number 552 and it was in possession of Harendra the father of the applicant. It is argued that some persons had tried to forcibly occupy the said land after which the father of the applicant filed a suit for permanent injunction and the said suit is pending disposal. It is argued that the father of the applicant again filed a

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suit for permanent injunction against Rudal the husband of Ishrawati Devi and Moti Lal with regards to the same property and the said suit is also pending in which Rudal has filed objections. It is argued that on 24.12.2019 the applicant was preset at his parental house in village Tarkulwa Madari Patti whereupon Sub-Divisional Magistrate Dinesh Mishra along with police officials came to his house and inquired about him and used filthy language which was objected by the applicant after which the police misbehaved with him and assaulted him. It is argued that Sub-Divisional Magistrate and S.H.O. entered into the house of the applicant on which the applicant run towards sugarcane field thereafter S.H.O. had opened fire upon him but he managed to escape and then he has been falsely implicated in the case. It is argued that the applicant objected about the said act and the behaviour of the officials but he was apprehended by the police and was taken and detained at various police stations. It is argued that the applicant is a Judicial Officer posted in Samastipur District, Bihar and has also been selected in U.P. Judicial Service in the year 2018. It is argued that verification required for appointment of the applicant has to be sent sent by the District Magistrate, Deoria but the same is being intentionally withheld and the police is also not sending the required verification. It is argued the applicant filed an application under R.T.I. Act inquiring about the same and it was only when an application under R.T.I. Act was filed by the applicant, district administration in collusion with certain persons have falsely implicated the applicant. It is argued that the injuries as sustained by the alleged injured persons are manipulated injuries and no one has received any injuries in the alleged incident. Learned counsel has argued that as such no offence is made out and the applicant has been falsely implicated in the present case. It is argued that thus the proceedings be quashed.

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Per contra, learned A.G.A. opposed the prayer for quashing and argued that the applicant is named in the F.I.R. Investigation in the matter was carried out and evidence was collected and then a charge sheet has

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been submitted against him and other accused persons and the trial court took cognizance on it and summoned the accused persons to face trial. It is argued that there are injured persons also who have been medically examined and the doctor found injuries on them. It is argued that in so far as the grounds as taken by the applicant in the present application are concerned, the same may be a defense of the applicant which cannot be seen at this stage by this Court as only prima facie case has to be seen at this stage. It is argued that since there is prima facie evidence against the applicant the present application deserves to be dismissed.

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After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is named in the F.I.R. and there are allegations against him and the other accused persons. In the matter police personnels namely Narendra Pratap, Brij Bhushan, Dharmendra, Asha, Ranjana, Khushbu, Soni and Tribhuwan Nath Gupta have received injuries who have been medically examined. Medical examination report and X-ray report of the injured persons are on record. Investigation concluded after which charge sheet has been submitted and the trial court has taken cognizance on it and summoned the applicant and other coaccused persons to face trial vide order dated 2.7.2022 since prima facie case is made out. The Court does not see any good ground for quashing of the impugned order 2.7.2022 and the proceedings against the applicant.

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8. The Apex Court in the case of State of M.P. v. Awadh Kishore Gupta : (2004) 1 SCC 691 has in paragraphs 8 to 13 has held that High Court cannot appreciate evidence but can evaluate material and documents on records to the extent of its prima facie satisfaction about existence of sufficient ground for proceeding against the accused, it is not proper for High Court to act upon documents annexed to the petition under Section 482 Cr.P.C. and the annexures to the petition cannot be termed as evidence without being tested and proved. The same read as under:

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" 8. Exercise of power under Section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

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9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

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(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

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(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

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(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

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(AIR para 6)

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10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102)

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"(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.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(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.

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(4) Where, the allegations in the FIR 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 Section 155(2) of the Code.

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(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.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fides 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."

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11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues

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involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304], State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : AIR 1999 SC 1216] .]

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(emphasis supplied)

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12. These aspects were also highlighted in State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539] .

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13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal [(1992) 3 SCC 317 : 1992 SCC (Cri) 636] it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116 of 1994) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further.

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(emphasis supplied)"

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9. In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147 , Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44 , Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424 it has been held by the Apex Court that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case.

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10. In the cases of Bhushan Kumar Vs. State of NCT of Delhi : (2012) 2 SCC 424 , Nupur Talwar Vs. CBI : (2012) 11 SCC 465 , Dy.

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Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons.

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11. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of State of Haryana and Others Vs. Bhajan Lal and Others : (1992) Suppl (1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/chargesheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. It has further been held that existence of a civil remedy and initiation of it will not in any manner be an abuse of process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings.

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12. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence

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of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.

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13. Looking to the facts of the case, the prima facie allegation against the applicant and the law as stated above, no case for interference is made out. The present application under Section 482 Cr.P.C. is thus dismissed .

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(Samit Gopal,J.)

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Order Date :- 1.3.2023 Naresh

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Digitally signed by :- GAURAV KULSHRESTHA High Court of Judicature at Allahabad

Shailesh Singh v. State of U.P. and Another

Case brief

What is this about?

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Shailesh Singh v. State of U.P. and Another

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