B.A.(MCOC) No.953/21
MHCC020143722021
1
Order
IN THE COURT OF SPECIAL JUDGE UNDER MCOC ACT,
FOR GREATER MUMBAI AT MUMBAI
BAIL APPLICATION (MCOC) NO.953 OF 2021
(CNR NO.MHCC02-014372-2021)
IN
REMAND APPLICATION (MCOC) NO.1118 OF 2021
Suraj Arun Pote
Aged – about 27 years, Occ. – ,
R/at- Room No.38, Near Kalimata Seva
Sangh Chawl, Sanjay Gandhi Nagar,
Jogeshwari (East), Mumbai.
Е Applicant
Versus
The State of Maharashtra,
(At the instance of Assistant Commissioner
of Police, Meghwadi Division, FIR
No.97/2021.)
Е Prosecution
CORAM :
THE ADDL. SESSIONS JUDGE AND
THE SPECIAL JUDGE UNDER
MCOC/NIA/POTA ACT
RAHUL R. BHOSALE (C.R. NO.55)
DATE : 22.12.2021.
Learned Advocates:
Mr. Nitin Sejpal, for applicant.
Mr. Jaysing Desai, SPP for State.
ORDER
1.
The case of UTP- Suraj (applicant) for grant of statutory bail is as
under :
(a)
The C.R. No.97/2021 was filed against present applicant
alongwith co-accused at Meghwadi police station for the offences
punishable u/Ss.307, 326, 188, 143, 144, 147, 148, 149 and 120(B) of
IPC. He was arrested on 20.05.2021 and produced before the Ld.
A.C.M.M., Railway Mobile Court, Andheri (Ld. Magistrate Court). After
remanding firstly to P.C., the Ld. Magistrate remanded applicant to J.C.
B.A.(MCOC) No.953/21
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Order
which was continued from time to time. Now, the applicant is lodged in
Thane Central Prison.
(b)
against
After completing investigation, the police filed charge-sheet
applicant
before
Ld.
Magistrate
Court
vide
C.C.
No.1840/PW/21. That case being sessions triable, was then committed
to the Additional Sessions Court, Dindoshi Division. The applicant also
filed regular bail application before Additional Sessions Court which
was pending. Then, Assistant Commissioner of Police, Meghwadi
Division obtained prior approval u/S.23(1)(a) of MCOC Act of the
designated authority for invoking the penal provisions of MCOC Act in
original C.R. No.97/2021. He has started further investigation. He
obtained production warrant of accused persons including applicant
from this Court being a Special Court under MCOC Act.
(c)
The applicant and co-accused were produced from Prison
before this Court. This Court permitted to re-arrest them on 23.10.2021
and remanded the accused persons to P.C. till 28.10.2021. Thereafter,
they were remanded to J.C. and now they are in J.C. which has been
extended from time to time. However, charge-sheet is not filed relating
to the crime alleged under MCOC Act and further investigation is going
on.
(d)
The applicant has completed 180 days of detention in JC
from his first arrest on 20.05.2021 in original C.R. No.97/2021. The
charge-sheet is not filed within stipulated period of maximum 180 days
of detention u/S.167(2) С proviso Т (a)(i) of Cr.P.C. r/w. S.21(2) of
MCOC Act. The applicant is therefore, entitled for grant of statutory bail
u/S.167(2) С proviso Т (a)(i) of Cr.P.C.. In case of Bharati Varma, Hon’ble
Apex Court granted statutory bail in the similar facts like present
matter. The applicant may, therefore, be released on bail under СprovisoТ
to S. 167(2) of Cr.P.C. and under СprovisoТ (a)(ii) of Cr.P.C. r/w. S.21(4)
B.A.(MCOC) No.953/21
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Order
of the MCOC Act in C.R. No.97/2021.
2.
The prosecution case / protest in brief is as under :
Present application is not maintainable. The proper charge-sheet vide
C.C. No.1840/PW/21 was filed against applicant in present C.R.
No.97/2021 on 05.08.2021 in stipulated time before the Ld. Magistrate
Court itself. The effect of entire S.167(2) of Cr.P.C. was then
extinguished after filing of charge-sheet. Applicant is therefore, not
entitled for grant of statutory bail. Additional Sessions Court at
Dindoshi had already rejected bail application of the present applicant.
Later on, the Ld. Magistrate Court committed charge-sheet / case to the
Additional Sessions Court at Dindoshi. Then the penal provisions of
MCOC Act were invoked in original C.R. No.97/2021 before this Court
being a Special Court under MCOC Act. The applicant alongwith coaccused were re-arrested and later on, their judicial custody was
continued u/S.309 of Cr.P.C.. Thus, only further investigation
u/S.173(8) of Cr.P.C. is going on relating to MCOC crime. The
supplementary charge-sheet will be filed after completing further
investigation. The present application is therefore, not legal. The
present applicant being a dreadful criminal, if released on bail, would
interfere with the course of further investigation. Application may be
rejected.
3.
I have heard arguments of Ld. Advocate Mr. Nitin Sejpal for
applicant and Ld. SPP Mr. Jaysing Desai for State and have also perused
the case papers. The points arise for determination accordingly are
answered for the reasons as under:
Sr. No.
Points
Findings
1.
Whether the applicant proves that
In the Negative.
B.A.(MCOC) No.953/21
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Order
S.167(2) СprovisoТ (a)(ii) of Cr.P.C. is
applicable to the present application
for grant of statutory bail ?
2.
What is the order ?
As per final order.
REASONS
POINT NO.1:
4.
The admitted facts on record are as follows :
The applicant and co-accused persons are facing C.R. No.97/2021
with Meghwadi police station for offences punishable u/Ss.307, 326,
188, 143, 144, 147 to 149, 120(B) of IPC originally. They all were
arrested by Meghwadi police and particularly applicant on 20.05.2021.
They were produced before Ld. Jurisdictional Magistrate Court which
remanded them to the police custody firstly and thereafter, they were
taken into judicial custody by authorizing it from time to time. The
Meghwadi police, after completing investigation, filed charge-sheet vide
C.C. No.1840/PW/21 in the Ld. Magistrate Court on 05.08.2021. That
charge-sheet / case was committed by Ld. Magistrate Court to
jurisdictional Additional Sessions Court, Dindoshi Division at Borivali u/
S.209 of Cr.P.C..
Later on, the ACP, Meghwadi Division gave intimation to this
Court being a Special Court under MCOC Act intimating that penal
provisions under MCOC Act were attracted into the original C.R.
No.97/2021. He obtained prior approval of designated authority
u/S.23(1)(a) of the MCOC Act for conducting further investigation for
the alleged crime under the MCOC Act. In further investigation, the I.O.
ACP upon taking production warrant of applicant and co-accused,
produced them before this Court. This Court firstly remanded the
applicant and co-accused into P.C. and then they are taken to J.C. Now,
B.A.(MCOC) No.953/21
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Order
the applicant is in J.C.R. of this Court and further investigation into
MCOC crime is going on.
5.
On that admitted backdrop, now the applicantТs advocate Mr.
Sejpal argues that, since from arrest on 20.05.2021 in original C.R.
No.97/2021, the applicant has been undergoing judicial custody for
more than 180 days but the charge-sheet is not yet filed. Therefore, as
per his further submission, the applicant is entitled for grant of
statutory bail u/S.167(2) proviso (a)(i) of Cr.P.C. r/w. S.21(2) of MCOC
Act. In counter, Ld. SPP Mr. Desai has argued that, in present C.R.
No.97/2021, after arresting the applicant on 20.05.2021, Meghwadi
police already filed charge-sheet in time on 05.08.2021 before
Jurisdictional Magistrate Court. Thus, charge-sheet was filed within 75
days from arrest of present applicant. Later on, the charge-sheet / case
was committed by Ld. Magistrate Court to the jurisdictional Additional
Sessions Court, Dindoshi Division. He lastly submits that, thereafter
invoking MCOC Act, the further investigation is going on, therefore,
S.167 of Cr.P.C. and S.21(2) of MCOC Act are not applicable. Thus, the
controversy is found on a single point that whether the effect of
S.167(2) of Cr.P.C. is still existing in present set of facts which would
create right in applicant to obtain statutory / default bail u/S.167(2)
proviso (a)(i) of Cr.P.C..
6.
Relevant proviso [(a)(i)] to S.167(2) of Cr.P.C. mandates to
release the accused on bail, if charge-sheet is not filed even after expiry
of 90 days of his detention in judicial custody (J.C.) after arrest . As per
case of applicant, he was arrested on 20.05.2021, hence as on today
more than 180 days of his detention in J.C. are completed. However, the
applicant simply ignores the charge-sheet was admittedly filed within
B.A.(MCOC) No.953/21
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Order
stipulated period of 90 days before Jurisdictional Magistrate Court on
05.08.2021 (i.e. within period of 75 days). Thus, effect of S.167 ceases
after charge-sheet was filed in stipulated time. But Ld. advocate Mr.
Sejpal argues that still S.167(2) of Cr.P.C. applies in this situation. In
support of his argument, Ld. advocate Mr. Sejpal for the applicant has
materially relied upon the decision of HonТble Apex Court in the case of,
State of Maharashtra V/s. Bharati Varma, 2002 SCC (Cri) 299. As per
his submission, the facts in that case are similar to the facts in present
matter. However, as per the facts in that case found in para nos.2 to 5 of
the decision that, accused- Bharati was arrested on 01.04.2001 in a
crime registered for the offences u/Ss.489(A to C), 120(B) and 420 of
IPC. She was produced before the Jurisdictional Magistrate Court on
02.04.2001 and remanded to P.C. and later on, to J.C.. But after 90 days
from arrest also as the charge-sheet was not filed, hence accused
applied to be released on statutory bail as per С proviso Т to S.167(2).
The Ld. Magistrate Court dis-allowed her prayer but HonТble Bombay
High Court allowed her application and released her on bail. That order
was challenged before HonТble Supreme Court. These facts are
altogether different than the facts in present matter Ц wherein the
charge-sheet has already been filed before Ld. Magistrate Court quite
within 90 days. Therefore, the first finding of HonТble Apex Court for
grant of statutory bail as the charge-sheet was not filed within 90 days
from the date of arrest of that accused, is not applicable to the present
set of facts.
7.
In the further development as per facts in case before HonТble
Apex Court (2002) SCC Cri. 299 (supra), during investigation of that
crime the I.O. obtained prior approval for invoking the penal provision
of MCOC Act (in original C.R. number). Then I.O. finally filed charge-
B.A.(MCOC) No.953/21
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sheet on 12.07.2001 after conducting investigation into MCOC crime.
The accused however, had earlier filed application for grant of statutory
bail under С proviso Т (a)(i) to S.167(2) of Cr.P.C.. But the State
protested that application before HonТble Apex Court on ground that,
the said С proviso Т to S.167(2), after invocation of the penal provision
under MCOC Act was to be read u/S.21(2) (СprovisoТ) of the MCOC Act
subject to modification therein. Thus, it was the submission of State
that, in said case stipulated period of 90 days would be modified to 180
days as per С provisoТ of S.21(2) of the MCOC Act and not remain 90
days as per С provisoТ to S.167(2) of Cr.P.C.. But HonТble Apex Court has
observed in para no.7 of the decision (supra) that, admittedly the
Special Prosecutor for State had not filed any required report
(application) under С proviso Т to S.21(2) of the MCOC Act for extension
of the detention of accused beyond 90 days. Hence, held that said
СprovisoТ to S.21(2) of the MCOC Act (for 180 days) would not have any
automatic effect. Therefore, HonТble Apex Court further held that, the
State had to file charge-sheet within 90 days from the date of arrest of
the accused (as per СprovisoТ (a)(i) to S.167 of Cr.P.C.) and no automatic
extension of period of 180 days under СprovisoТ to S.21(2) of MCOC Act
only due to later on would effect invocation of MCOC Act provisions.
On those and other various grounds, the HonТble Apex Court granted
statutory bail to accused Bharati under the С proviso Т to S.167(2) of
Cr.P.C. by observing that charge-sheet was not filed within stipulated
period of 90 days from date of arrest of accused. As those facts are
altogether different than the facts in the present case, hence present
applicant can not boost his case on its basis.
8.
Similar argument Ld. advocate Mr. Sejpal for applicant has made
in present matter also. He thus argues that after invocation of MCOC
B.A.(MCOC) No.953/21
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Act penal provisions to present crime, in view of СprovisoТ to S.21(2) of
MCOC Act the I.O. has to file charge-sheet within stipulated period of
180 days. But HonТble Apex Court has already turned down such
submission in BharatiТs case (supra) by holding that, when accused was
arrested in original crime registered under I.P.C. and detained in judicial
custody; then the effect of S.167(2) of Cr.P.C. is started that to such
arrested accused is to be detained for maximum stipulated period of 90
days. HonТble Apex Court further held that, subsequent invocation of
crime under MCOC Act by I.O. would not automatically modify 90 days
to 180 days as per СprovisoТ to S.21(2) of MCOC Act . For that purpose,
HonТble Apex Court further held that, Ld. SPP has to file application for
extension upto 180 days under СprovisoТ to S.21(2) of MCOC Act and
get it allowed. Said activity is not done here. Therefore, on any count
the present applicant could not get help of that decision of HonТble
Apex Court (supra).
9.
In the present matter, the applicant was arrested in present C.R.
No.97/2021 on 20.05.2021. I.O. filed charge-sheet for the IPC offences
on 05.08.2021, within 90 days as per СprovisoТ to S.167(2) of Cr.P.C. in
time before the Jurisdictional Magistrate. That charge-sheet u/S.173 of
Cr.P.C. was committed u/S.209 of Cr.P.C. by Jurisdictional Magistrate to
the jurisdictional Additional Sessions Court. At that time, the penal
provisions of MCOC Act were invoked in that crime at C.R. No.97/2021
and further investigation was taken over by the ACP for the offence
under MCOC Act. The further investigation u/S.173(8) of Cr.P.C. is now
going on. Those exactly similar facts were dealt with by HonТble
Bombay High Court in the case of, Indrabahadur Khatri V/s. The State
of
Maharashtra,
Criminal
Bail
Application
No.1046
of
2012
dtd.05.09.2012. Ld. advocate Mr. Sejpal for the applicant has himself
B.A.(MCOC) No.953/21
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submitted copy of this decision with argument that it is inapplicable
here. In that case before HonТble High Court, some accused persons
were arrested on 17.05.2011 while some on 24.05.2011 in C.R.
No.59/2011 with J.J. Marg Police Station filed for IPC offences
materially u/S.302 and 341 etc.. The accused were in the judicial
custody. On 12.08.2011, the police filed charge-sheet within stipulated
period of 90 days before Ld. A.C.M.M. Court. That charge-sheet / case
was then committed to the jurisdictional Sessions Court on 07.09.2011
by Ld. A.C.M.M. Court u/S.209 of Cr.P.C.. On 15.09.2011 the MCOC
penal provisions were invoked in original crime when case was pending
before jurisdictional Sessions Court. The I.O. obtained prior approval
for investigation under MCOC Act. On 22.09.2011, those accused who
were in judicial custody were produced before the Special Court under
MCOC Act. The accused on that day itself (on 22.09.2011) filed an
application for grant of statutory bail under С proviso Т to S.167(2) of
Cr.P.C.. Accused contended that the stipulated period of their (90 days)
detention during investigation was completed, hence they claimed to be
released on default bail. That application was rejected by the Special
Court and hence the accused moved HonТble High Court.
10.
Those facts are exactly similar with the facts in the present matter
in hand. The accused in that case also counted stipulated period of their
detention from date of their first arrest. The accused in that case also
argued that the stipulated period of their detention as per СprovisoТ to
S.167(2) was to be counted from date of their first arrest. They
submitted further that, as the charge-sheet was not filed against them
under penal provisions of MCOC Act upto 22.09.2011, hence they were
entitled for grant of statutory bail. The accused however, ignored the
fact that already the charge-sheet was filed in IPC crime in stipulated
B.A.(MCOC) No.953/21
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time under СprovisoТ to S.167(2) of Cr.P.C. and further investigation
u/S.173(8) of Cr.P.C. for offence under MCOC Act was going on. In that
case also, the accused had relied upon the same judgment of HonТble
Apex Court in, State of Maharashtra V/s. Bharati Varma, 2002 ALL MR
(Cri) 1215 (S.C.) (supra) like present applicant.
11.
On those set of facts, HonТble High Court (in Indrabahadur
KhatriТs case supra) has however, held in para no.12 that, contention of
accused persons was misconceived. It was specifically held that, once
the charge-sheet was filed in time in original crime then the effect of
S.167 of Cr.P.C. was over as filing of charge-sheet signifies completion of
investigation. The further investigation under MCOC Act in that crime
would result in filing of supplementary charge-sheet u/S.173(8) of
Cr.P.C..
Similarly, in the present matter also the applicant has ignored that
the charge-sheet under IPC offence was already filed within limitation.
Hence, as per decision of HonТble High Court, the effect of СprovisoТ to
S.167 of Cr.P.C. was over. The argument of Ld. advocate Mr. Sejpal here
is that still the charge-sheet of penal provisions under MCOC Act is yet
not filed as the investigation is still going on. Hence, as per his further
submission, earlier filing of the charge-sheet under IPC in same crime
would not extinguish right of present applicant under С proviso Т to
S.167(2) of Cr.P.C.. Such argument is already held by HonТble High
Court in the above decision as not legal and sustainable. HonТble High
Court also held that, such further investigation relating to penal
provisions under MCOC Act continues by the virtue of S.173(8) of
Cr.P.C.. Such further investigation would not attract provision of S.167
of the Code. In para no.15, HonТble High Court has observed that, after
the filing of charge-sheet u/S.173 of Cr.P.C. merely, because further
B.A.(MCOC) No.953/21
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investigation is undertaken u/S.173(8) of Cr.P.C., would not seize its
effect. Thus, HonТble High Court has held ultimately that when the
charge-sheet is filed of IPC crime in time, hence subsequent invocation
of MCOC penal provision has to be investigated into as further
investigation u/S.173(8) of Cr.P.C..
12.
That observation is also fortified in another decision of HonТble
Bombay High Court in the case of, Lt. Col. Prasad Purohit V/s. National
Investigation Agency, Criminal Writ Petition No.2136 of 2011. In para
no.28, it is specifically held by relying upon the HonТble Supreme Court
judgment (2010) 2 SCC 200, that said judgment indicate that S.173(8)
Cr.P.C. does not restrict that further investigation has to be done by
same investigating agency. Lastly, HonТble Bombay High Court has held
that, such further investigation would not attract S.167, hence the relief
of statutory bail is not found maintainable. Thus, as per existing law, the
submission of applicant is not acceptable.
13.
HonТble High Court in (Indrabahadur Khatri supra) has also held
in para no.16 that, the matter may be looked at, from another angle
also. The accused had not secured bail during investigation stage. A
charge-sheet in respect of serious offences (murder) came to be filed
against them, after investigation in time. Obviously, such accused was
not entitled for statutory bail under С proviso Т to S.167(2) of Cr.P.C. as
the charge-sheet was filed in time. It is therefore, contrary to the logic
that such accused would be further entitled for bail, merely because
investigating agency by carrying out further investigation were
attempting to find out the offences committed by them had wider
ramifications, and were therefore of a graver and more serious nature
(Like the penal provisions under MCOC Act here) . Therefore, HonТble
B.A.(MCOC) No.953/21
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High Court has lastly held that, the applicants who had already been
charge-sheeted on the accusation of serious offence, would not be
placed in an advantageous situation, merely because the investigation
agency thereafter, added the offences to be of a more serious nature.
Therefore, HonТble High Court concluded that the accused were not
entitled for grant of statutory bail under С proviso Т to S.167(2) of Cr.P.C.
during further investigation u/S.173(8) of Cr.P.C..
14.
The said decision is squarely applicable to the present set of facts.
Here, the charge-sheet was filed in time on dtd.05.08.2021 During the
stipulated period of 90 days as per S.167(2) СprovisoТ (a)(i) of Cr.P.C.
from arrest of accused on 20.05.2021. The further investigation is going
on under MCOC penal provision u/S.173(8) of Cr.P.C. would not restore
effect of СprovisoТ to S.167(2) of Cr.P.C.. Accused also can not submit
that, by operation of СprovisoТ to S.21(2) of MCOC Act the stipulated
period of 180 days is to be counted from date of his arrest in present
crime on 20.05.2021 as the MCOC penal provisions are invoked.
Because as per decision of HonТble Bombay High Court (supra) unless
the prosecutor files application u/S.21(2) СprovisoТ before the Court and
obtains such relief, that period of 180 days would not automatically
modify to 90 days provided u/S.167(2) of Cr.P.C. only on the ground
that MCOC penal provisions are invoked. Basically, said plea is not at all
available because filing of earlier charge-sheet would cease the effect of
S.167(2) СprovisoТ of Cr.P.C. and resultantly modified application of
S.21(2) СprovisoТ of MCOC Act.
15.
The applicant has also relied upon decision of HonТble Apex Court
in the case of, State through CBI V/s. Dawood Ibrahim Kaskar, 1997 SCC
(Cri) 636. The facts in that case are however, totally different which are
B.A.(MCOC) No.953/21
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spelt out in para no.10. Accordingly, in Bomb Blast Case some accused
persons were absconding. After taking over the investigation, CBI
Officer filed application u/S.73 of Cr.P.C. to issue non-bailable warrant
against absconding accused persons and also the simultaneous
applications were filed for publication of proclamation against them as
absconding. However, the Ld. Special Court rejected the prayer for
issuing arrest warrant u/S.73 of Cr.P.C. by observing that once the Court
has taken cognizance of the crime, then process could be issued to the
accused only to compel them to face the trial but no process u/S.73 of
Cr.P.C. could be issued in aid of investigation . HonТble Apex Court
however, held in para no.24 that : С S.73 of Code is of general
application and that in course of the investigation also a Court can issue
such warrant to apprehend the accused of non-bailable offence who is
evading arrest. Therefore, for the investigation purpose also warrant u/
S.73 of Cr.P.C. could be issued. On production of such accused in
warrant, the Court may either release him on bail or authorise his
detention in custody (either police or judicial) u/S.167 of Cr.P.C..
Therefore, the order of trial Court was set aside Т.
Thus, as those facts were relating to the pending investigation
against absconding accused which are not similar to the facts in present
matter wherein the accused are already in custody of the Court. Hence,
the applicant can not boost his case with that decision.
16.
The applicant has not succeeded to prove his prayer to grant
statutory bail. He is thus not entitled for grant of statutory bail, hence I
answer point no.1 in the negative.
POINT NO.2:
17.
The applicant has not succeeded to prove present application,
B.A.(MCOC) No.953/21
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Order
hence I pass the order as under :
ORDER
Bail Application (MCOC) No.953 of 2021 of applicant- Suraj Arun
Pote is rejected and disposed of, accordingly.
Dated: 22.12.2021.
Dictated on
Typed on
Checked on
Signed on
:
:
:
:
21.12.21, 22.12.21.
22.12.21.
24.12.21.
27.12.21.
Digitally signed
by RAHUL
RAMCHANDRA
RAHUL
RAMCHANDRA BHOSALE
BHOSALE
Date:
2021.12.27
16:35:55 +0530
(R.R. BHOSALE)
ADDL. SESSIONS JUDGE
& SPECIAL JUDGE UNDER MCOC ACT
GREATER MUMBAI.
B.A.(MCOC) No.953/21
15
Order
У CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDERФ.
UPLOAD DATE
UPLOAD TIME
NAME OF
STENOGRAPHER
27.12.2021
04.30 p.m.
Mr. N.S. Bakre
Name of the Judge (With Court Room No. 55) HHJ Shri. R.R. Bhosale
Date of pronouncement of
JUDGMENT/ORDER
22.12.2021
JUDGMENT/ORDER signed by P.O. on
27.12.2021
JUDGMENT/ORDER uploaded on
27.12.2021