APL-578.11.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.578/2011
APPLICANT: Nandkishor Pralhad Vyawahare,
Aged about 40 years, Occ : Agriculturist,
R/o Tadtoda Tah. Malegaon,
District : Washim.
...VERSUS...
RESPONDENT: Sau. Mangala w/o Pratap Bansar,
@ self declared Sau. Mangala Nandkishor
Vyawahare, Aged : Major, Occ : Not known,
R/o Ward No.4, Malegaon, Tq. Malegaon,
District : Washim.
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Shri S.V. Sirpurkar, Advocate for applicant.
Shri M.K. Pathan, APP for State.
Shri C.A. Joshi, Advocate for respondent.
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CORAM : B.P. DHARMADHIKARI AND
ARUN D. UPADHYE, JJ.
Date of reserving the judgment : 11.09.2017
Date of pronouncing the judgment : 14.11.2017
JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. The present reference is arising out of order dated 13/2/2015 passed by the learned Single Judge in Criminal Application No.578/2011.
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2. It appears that during the course of hearing, it was brought to the notice of learned Judge that there are conflicting decisions of two separate Benches, on the point of applicability of the provisions of Section 482 of the Code of Criminal Procedure to the proceedings under the Protection of Women from Domestic Violence Act, 2005 (for short hereinafter referred to as "the D.V. Act, 2005"), rendered in the case of Mangesh Sawant...Versus...Minal Vijay Bhosale, reported at 2012 ALL MR (Cri.) 1113 (Coram : A.S. Oka, J.) and another in Criminal Writ Petition No. No.773/2014 (Narayan Thool and others...Versus...Sau. Mala Chandan Wani,) (Coram : S.B. Shukre, J.).
3. After hearing the parties, the learned Single Judge has made a reference to the Hon'ble Chief Justice for referring the matter to be decided by larger Bench in order to set right the controversy. Following questions were framed by the learned Single Judge :-
"(i) Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings ?
(ii) Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005 ?"::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 :::
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4. The matter was then placed before the Hon'ble Acting Chief Justice by the Registry and the Hon'ble Acting Chief Justice was pleased to direct to constitute the Division Bench presided over by the Hon'ble Shri Justice B.P. Dharmadhikari to hear and decide the reference made by the Court (Coram : A.R. Joshi) in Criminal Application No.578/2011. The above criminal application is thus before us.
5. On 7/8/2017 when the matter came up for hearing, Shri S.V. Sirpurkar, the learned Counsel for the applicant informs that the applicant Nandkishor is no more and sought time to file appropriate pursis on record. The matter was adjourned for further consideration on 17/8/2017. Thereafter, the matter came up before us for hearing on 18/8/2017. The learned Counsel for the applicant was not present. The learned Counsel Shri M.S. Sambhare for respondent was present and informed that applicant Nandkishor is no more. Learned Acting Public Prosecutor Shri A.S. Fulzele has sought time to assist the Court. Thereafter, the order was passed and Registry of this Court directed to publish a notice in the cause list pointing out the issue referred and requesting the Advocates willing to assist the Court to address the Court on the next date of hearing and the matter was postponed on 11/9/2017 ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 4 as a last chance.
6. We have heard respective counsel for the parties at length. The learned Additional Public Prosecutor Shri Pathan has submitted that if the complaint is filed by the woman before the Magistrate under the provisions of the D.V. Act, 2005 the mechanism is provided under the Code of Criminal Procedure. The appellate remedy is also provided before the Sessions Court. If the order is passed by the Magistrate under the D.V. Act, 2005 and the same is disobeyed then the consequences are criminal though the proceedings are in the civil nature but Section 482 of the Code of Criminal Procedure could be invoked for quashing the proceedings on meritorious cases. He further submitted that if alternative remedy is not availed then the Court may refuse to entertain the application under Section 482 of the Code of Criminal Procedure.
7. Shri A. J. Thakkar, Shri A. S. Kinkhede, Shri R. R. Vyas, Shri Maheshwari and Shri R. D. Dhande, learned advocates assisted the Court with response to the notice published on the Notice Board. All these learned advocates have submitted that the provisions of Domestic Violence Act though the provisions are of civil nature but consequences are criminal one. They further submitted that the mechanism in the Act is ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 5 provided under the Code of Criminal Procedure. The remedy of appeal is also provided and appeal lies to the Sessions Court. They, therefore, submitted that the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of civil as well as criminal and the High Court can exercise its powers under Section 482 Code of Criminal Procedure, 1973.
8. Shri C. A. Joshi, learned counsel for respondent has submitted that the application under Section 482 of Cr.P.C. is not maintainable. The proceedings before the Magistrate under the D.V. Act, 2005 and order was passed therein would be challenged before the Sessions Court. He further submitted that the proceeding before the Magistrate is of civil nature and therefore, High Court cannot exercise its powers under Section 482 of Cr.P.C.
9. Shri Pathan, learned A.P.P. has relied upon the following rulings in support of his submission.
(a) (2011) 12 SCC 588 (Inderjit Singh Grewal...Versus...State of Punjab and another).
(b) (2016) 11 SCC 774 (Kunapareddy Alias Nookala Shanka Balaji...Versus...Kunapareddy Swarna Kumari and another).
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Motu...Versus...Ushaben Kishorbhai Mistry].
10. Learned counsel have relied upon the decision rendered by the Division Bench in Writ Petition No.2473/2016 (Sukumar Pawanlal Gandhi Vrs. Bhakti Sushil Gandhi) decided on 27/10/2016.
11. Judgment in the case of Inderjit Singh Grewal...Versus...State of Punjab and another (supra) the Hon'ble Apex Court has held that the complaint was filed by wife under Section 12 of the D.V. Act, 2005 to initiate criminal proceedings against her husband alleging that he had obtained decree of divorce by playing fraud upon the Court. However, it is evident that wife herself had been party to fraud committed by appellant upon civil Court for getting decree of divorce. Statements/allegations made by wife patently and latently involve her in alleged fraud committed upon Court which consequently made herself dis-entitled for any equitable relief and hence, permitting the Magistrate to proceed further with complaint under the provisions of the D.V. Act, 2005 is not compatible and in consonance with decree of divorce which still subsists and thus, process amounts to abuse of process of Court. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 :::
APL-578.11.odt 7 Undoubtedly, for quashing a complaint, Court has to take its contents on its face value and in case same discloses an offence, the Court generally does not interfere with same. However, in the backdrop of factual matrix of this case, permitting Court to proceed with complaint would be travesty of justice.
12. Judgment in the case of (Kunapareddy Alias Nookala Shanka Balaji...Versus...Kunapareddy Swarna Kumari and another), reported at (2016) 11 SCC 774, the Hon'ble Apex Court while dealing with the case under Protection of Women from Domestic Violence Act, 2005 has held that the amendment to the original petition / complaint filed under the D.V.Act,2005, the Court has power to allow the amendment. The Hon'ble Apex Court held that whether they are of civil or criminal nature, original petition / complaint may be permitted by the Court to be amended in appropriate cases. Though in the said proceeding, the appellant questioned the validity of High Court's order contending that proceeding under the D.V.Act, 2005 were governed by the provisions of Cr.P.C. as prescribed under the D.V. Act, 2005 and there was no amendment in Cr.P.C.
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13. Judgment delivered in the case of Manish Tandon Vrs. Richa Tandon reported in 2009 (1) ALL LJ 347, the High Court of Allahabad has held that the availability of an alternate and efficacious remedy of appeal under Section 29, the petition is not maintainable under Section 482 of Cr.P.C.
In Another Judgment delivered in the case of Suo Motu Vrs. Ushaben Kishorbhai Mistry, reported in 2016 ALL MR (Cri)(Jou) 293, the Division Bench of the Gujarat High Court has held that :-
i) The provisions of the D.V. Act provide for remedial measures for civil rights of women but the machinery provided is through criminal court.
ii) Initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act would begin only when the Magistrate has passed any judicial order including of issuance of notice for hearing.
iii) Any person affected by any proceedings under the Act, prior to initiation of proceedings under Section 12 of the Act may prefer Special Criminal Application under Article 226 of the Constitution if as per him, the proceedings are beyond the scope and ambit of the Act or without any authority in law. But this Court, while entertaining the petition under Article 226 of ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 9 the Constitution may decline entertainment of the petition by way of self-imposed restriction in exercise of the judicial powers or may decline entertainment of the petition in exercise of its sound judicial discretion.
iv) Once proceedings are initiated under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 either independently or jointly on account of any judicial order passed by the learned Magistrate including issuance of notice, such proceedings shall be governed by the Code of Criminal Procedure coupled with the power of the Court under Section 28(2) to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23 of the Act.
v) Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law.
vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 10 Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice.
14. Shri Vyas, learned counsel, who assisted the Court has relied upon the Judgment of Bombay High Court in Writ Petition No.2473/2016 decided on 27/10/2016 in the case of (Sukumar Pawanlal Gandhi Vrs. Bhakti Sushil Gandhi), reported in 2016 SCC OnLine Bom 12942.
In the above Judgment, the Hon'ble Division Bench of this Court has held that in view of sub-section (2) of Section 28 of the D.V. Act, 2005, the Court before which an application under Sub-Section (1) of Section 12 is filed can adopt its own procedure for deciding the application. It is further held that the application under Sub-Section (1) of Section 12 of the D.V.Act, 2005 is not proceeding under the Cr.P.C. though it can be filed before the Court exercising the powers of a Criminal Court. However, there are two penal provisions under the D.V.Act, 2005. The first is Section 31 which provides that a breach of Protection Order or of an interim protection order, under the D.V.Act, 2005 by the respondent ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 11 shall be an offence which shall be punishable with imprisonment. The said offence is made cognizable and non-bailable under sub-section (1) of Section 32. It is further observed that under Section 33, a Protection Officer who fails or refuses to discharge his duties, as directed by the Magistrate in the Protection Order without any sufficient cause, is liable to be punished with imprisonment. The procedure for taking cognizance of the said offence committed by the Protection Officer is laid down in Section 34. Lastly, it is observed that it is needless to add that power under Section 482 of the Cr.P.C. can be always exercised for quashing the prosecution under Section 31 or 33 of the D.V.Act, 2005.
15. Judgment delivered in the case of Maroti Domaji Ramteke and others Vrs. The State of Maharashtra and another, reported in 2016 ALL MR (Cri) 4232, the Division Bench of this Court has held that for quashing of proceeding / complaint lodged by the wife under the D.V.Act, 2005 as also under Section 498-A of the I.P.C., lady with whom, husband is allegedly having extra-marital relations, also impleaded as a respondent. Not only such lady but family members of such lady also impleaded. The said lady and her family members do not fall within category of "relatives of husband". The aforesaid complaint against them is not sustainable and liable to be set aside. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 :::
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16. Judgment delivered in the case of Mrs.Dimple Jatin Khanna @ Dimple Rajesh Khanna @ Mrs. Dimple Khanna and another Vrs. Anita Advani and another, reported in 2016 ALL MR (Cri) 3748, the learned Single Judge of this Court has held that the complaint under Section 12 on the basis of relationship in the nature of marriage, complaint filed against legally wedded wife and children of deceased i.e. the petitioners on the ground that the petitioners dishoused her only at the time of death of deceased would prima facie demonstrate that respondent had relationship with deceased in the nature of marriage. The complaint under Section 12 is not maintainable.
17. Judgment in the case of Ashish Dixit and others Vrs. State of Uttar Pradesh and another, reported in 2013 ALL SCR 832, the Hon'ble Apex Court has held that the wife initiated proceedings under Domestic Violence Act, apart from the husband and parents-in-law, several persons and even tenant arrayed as parties to the proceedings, proceedings against the persons other than husband and parents-in-law quashed. The Hon'ble Apex Court has observed in para 4 of the said Judgment that in the matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by the ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 13 respondent no.2 be confined to her husband and as also her parents-in- law and should not have allowed the impleadment of respondent Nos.4 to
12. The Hon'ble Apex Court has considered the provisions of Section 482 of the Cr.P.C. as well as Section 12 of the D.V.Act, 2005 in the above said judgment.
18. In this case in hand, the learned Single Judge of this Court has made reference while considering two conflicting Judgments. One in the case of Mangesh Sawant Vrs. Minal Vijay Bhosale and another, reported in 2012 ALL MR (Cri) 1113 , decided on 05/10/2011 (Coram : A.S.Oka, J.) and in Cri. Writ Petition No.773/2014 decided on 27/01/2015 by the learned Single Judge (Coram : S.B.Shukre, J.). In the Judgment delivered by (Coram : A.S.Oka, J.), it is held that there are only two penal provisions under the Act. The first one is under Section 31 which provides that for committing a breach of Protection Order or interim protection order, a person can be punished. The only other penal provisions is Section 33. Under the said provisions, the Protection Officer can be punished who refuses to discharge his duties as directed by the learned Magistrate by the Protection Order. It is further held that the relief provided in Sections 18, 19, 20, 21 and 22 can be also sought by the aggrieved person in any legal proceedings before a Civil Court, a Family ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 14 Court or a Criminal Court.
It is further held that thus, the said act cannot be said to a penal statute. Merely because the jurisdiction to entertain application under Section 12 has been conferred upon the learned Magistrate, the said Act can be termed as a penal statute and the proceedings under the said Act cannot be treated as criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.
It is also held that there is no question of the learned Magistrate taking cognizance of a complaint under Section 12 of the said Act. There is no provision for issuing a summons contemplated by Code of Criminal Procedure, 1973 on the application under Section 12. Therefore, the power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act inasmuch as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.
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19. Criminal Writ Petition No.773/2014 is decided on 27/01/2015 by (Coram : S.B.Shukre, J.). In the said judgment, the petition filed under Section 482 for quashing and setting aside the complaint filed under the provisions of D.V.Act, 2005 was allowed. The learned Single Judge has held that a woman who is married, cannot enter into domestic relationship as contemplated under Section 2(f) of the D.V.Act, 2005 and even if she establishes a long standing relationship with man as concubine or mistress, she would not be entitled for protection under the provisions of the D.V.Act, 2005.
The petition was allowed and the impugned order dated 24/07/2014 passed by the learned Magistrate was quashed and the complaint filed being Domestic Violence Case No.1 of 2014 is quashed and set aside.
20. Considering the above referred decision of Hon'ble Apex Court as well as the Division Bench of this Court and judgments of the Division Bench of other High Courts, it appears that the different views are taken.
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APL-578.11.odt 16 The Division Bench in Sukumar Pawanlal Gandhi Vs. Bhakti Sushil Gandhi (supra), has answered the question framed by it in opening para of the judgment in paragraph 29 thereof and declared that the High Court cannot exercise power under Section 482 of Criminal Procedure Code for quashing an application under Section 12(1) of the Domestic Violence Act. It appreciates the judgment of Hon'ble Apex Court in Kunapareddy (supra), from para 7 onwards and relies upon it to note the nature of proceedings as civil one. In para 22, while looking into other judgment of Hon'ble Apex Court in case of Ashish Dixit (supra), it mentions that there the permissibility to take recourse to Section 482 was not the question involved. Reason given by this Division Bench is predominantly civil character of the proceedings. This Division Bench holds that such application under Section 12(1) is not a proceeding under Cr.P.C. though it can be filed before the JMFC Court i.e. court exercising criminal powers. It holds in para 25, that the Magistrate does not act as a criminal court in such a proceeding. To demonstrate that merely because Criminal Court is prescribed as forum for the proceedings, it cannot be quashed under Section 482 Cr.P.C., analogy of Section 169 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 has been used. In para 28, it finds that such an application can be filed even before Civil Court or Family Court in which ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 17 the matrimonial or maintenance dispute is pending and hence, in Section 28(2) of the Domestic Violence Act, need to evolve appropriate procedure is given.
21. Considering the ratio laid down in Sukumar Pawanlal Gandhi Vs. Bhakti Sushil Gandhi (supra), we are of the view that the judgment of equi-bench on the same principle with similar facts, if is a precedent applicable in law, goes unnoticed in a subsequent judgment, the subsequent judgment may not be termed as a good law in face of the doctrine of stare decisis. While interpreting the judgment, the Court has to pin-point its attention to the ratio of the judgment. Keeping in view the principle of stare decisis, a view which has been holding the fort need not be disturbed only because another view would be possible. The judgments which have held the field for a fairly long time ought not to be disturbed unless there is a prepondering necessity dictated by the demands of the justice to overturn them. The doctrine of stare decisis is based upon rule of convenience, expectancy and public policy.
22. The another judgment delivered by Gujarat High Court in the case of Suo Motu Vrs. Ushaben Kishorbhai Mistry, reported in ( 2016) ALL MR (Cri)(Jou) 293 in which different view is taken and it is ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 18 held that the provisions of Section 482 of the Code of Criminal Procedure is made applicable for quashing the proceeding filed under the D.V. Act, 2005. The view taken by the Division Bench of the Gujarat High Court is not consistent with the view taken by this Court in Sukumar Pawanlal Gandhi Vs. Bhakti Sushil Gandhi (supra).
23. The Hon'ble Supreme Court has not specifically laid down the law under Section 482 of the Cr. P. C. while dealing with case of Kunapareddy Alias Nookala Shanka Balaji...Versus...Kunapareddy Swarna Kumari and another, reported in (2016) 11 SCC 774, the Hon'ble Apex Court, however held that whether the proceedings of civil or criminal nature, original petitioner / complainant may be permitted by the Court to amend the appropriate cases.
24. In the case of Inderjit Singh Grewal...Versus...State of Punjab and another (supra), the Hon'ble Apex Court though quashed the proceeding filed under Section 12 of the D.V. Act, 2005, but not specifically laid down the law that Section 482 of the Cr. P. C. is made applicable for the proceedings under the D.V.Act, 2005. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 :::
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25. Section 26 of the Protection of Women from Domestic Violence Act, 2005 permits relief under Sections 18, 19, 20, 21 and 22 to be prayed for in legal proceedings before a Civil Court, Family Court or Criminal Court. When this section is read in contra distinction with Section 28, Section 28 speaks of "proceedings" under Sections 12, 18, 19, 20, 21, 22 and 23. Section 28[1] also takes into its hold offences under Section 31, with which we are not concerned here. Thus, Criminal Procedure Code is made applicable to proceedings under Section 12. Section 26[1] does not speak of "proceedings", but, it contemplates grant of relief in some other legal proceedings. Section 26[1] does not refer to Section 12 or Section 23 at all. Sub-section [2] of Section 28 clarifies that Court may lay down its own procedure for disposal of all applications under Section 12 or Section 23[2].
26. Thus, when a relief possible under Domestic Violence Act is sought in other legal proceedings before Civil Court or Family Court, the Court may be required to evolve its own procedure, as recourse to Criminal Procedure Code in that event may result in some confusion. Section 28[1] operates without prejudice to otherwise prescription in 2005 Act. Though we wanted respective learned counsel to assist us in understanding the implications arising out of this situation, we did not get adequate assistance. Cardinal question is, - If except in Section 28[2], ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 ::: APL-578.11.odt 20 there is no prescription otherwise in 2005 Act, why clear mandate of Section 28[1] cannot be given effect to, if "proceedings" are under Section 12, 18, 19 to 23 ? Whether nature of proceedings either as Civil or quasi Criminal or quasi Civil may be determinative to find out applicability of Criminal Procedure Code ? Whether unambiguous language of Section 28[1] gets clouded because of nature of proceedings ?
27. Division Bench judgment of this Court in Sukumar Pawanlal Gandhi .vrs. Bhakti Sushil Gandhi (supra), does not answer all these aspects, and hence, we find it difficult to accept it as clinching the controversy.
28. Considering the above facts and circumstances of the case and the legal position referred above, we are of the considered view that the present reference needs to be referred to the Larger Bench for deciding the following questions framed by the learned Single Judge.
"(i) Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings ?
(ii) Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005 ?"::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:59:40 :::
APL-578.11.odt 21 The Registry to place the matter before the Hon'ble Chief Justice for referring the matter to the Larger Bench.
JUDGE JUDGE
Wadkar/Choulwar
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