# Ram Chandar v. Dy. Director, Consolidation, Azamgarh and others

- **Citation:** (2003) 2 ILRA 428
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-22
- **Case number:** Civil Misc. Writ Petition No. 20449 of 2003
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chandar-v-dy-director-consolidation-azamgarh-and-others-40108
- **Pages:** 8

## Headnote

Constitution
of
India-Article
226-
Limitation Act 1963 Sec-5-Time barred
appeal filed after 16 years-Consolidation
Court Condoned delay-challenged two
validity of the said orders

Held- Para 9

In the present case the explanation
given by the respondent as noted above
is satisfactory and the exercise of
discretion by the Assistant Settlement
Officer of Consolidation in condoning the
delay, cannot be said to be arbitrary,
capricious, or ultra vires. Explanation
given for condonation has been noted by
the
Assistant
Settlement
Officer
of
Consolidation in his judgement and he
having found them satisfactory no case
has been made out for interference
under Article 226 of Constitution by this
Court.
Case law-

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
428
problem and do not pose any threat to the
public order and public tranquility of the
area, as alleged in its proposal by the
sponsoring authority.

14. It is now well realised that the
line of demarcation between 'law and
order' and 'public order' is very marginal.
Any act of violence that creates an
offence naturally poses problem first to
law and order. Every offence necessarily
does not come within the purview of
'public order' by virtue of it being an
offence committed by an individual or a
group of individuals. It would fall within
this clan if its ramifications have the
capability and potential to disrupt the
peace and tranquility of that area wherein
the offence was so committed. If it, by its
very
nature,
succeeds
in
causing
disruption in normal mode of living and
even tempo of the society unhesitatingly,
it is liable to handle sternly under these
preventive laws. The act would be clearly
barred by the connotation 'public order'.
The presence is in evident and its fall out,
we are convinced lacks this qualification.

15. The questions raised in this
petition and answered by us equally cover
the other seven petitioner's cases as well.
Dates of detention in their cases are a few
a days later though facts and submissions
remain the same.

16. In view of these facts and our
findings, these petitions are allowed. The
petitioners, who are under detention, shall
be released forthwith if not otherwise
wanted in any case.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2003

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 20449 of 2003

Ram Chandar

...Petitioner
Versus
Deputy
Director,
Consolidation,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondents:
Sri A.K. Singh
Sri A.P. Singh
Sri Anuj Kumar, Addl. S.C.
C.S.C.

Constitution
of
India-Article
226-
Limitation Act 1963 Sec-5-Time barred
appeal filed after 16 years-Consolidation
Court Condoned delay-challenged two
validity of the said orders

Held- Para 9

In the present case the explanation
given by the respondent as noted above
is satisfactory and the exercise of
discretion by the Assistant Settlement
Officer of Consolidation in condoning the
delay, cannot be said to be arbitrary,
capricious, or ultra vires. Explanation
given for condonation has been noted by
the
Assistant
Settlement
Officer
of
Consolidation in his judgement and he
having found them satisfactory no case
has been made out for interference
under Article 226 of Constitution by this
Court.
Case law-
1. 1998 R.D. 18 S.C.
2. 1996 A.W.C. 1018
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2 All] Ram Chandar V. Dy. Director, Consolidation, Azamgarh and others
429
3. 1995 R.D. 102
4. J.T. 1998 (8) S.C. 529
5. 1998 R.D. 607
6. 2002 R.D. 531
7. 1994 ALR 503
8. 2000 R.D. 693
9. AIR 1968 S.C. 222

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Sankatha Rai, learned
counsel for the petitioner and Sri A.K.
Singh learned counsel appearing for the
respondent no. 4.

2. By this writ petition the petitioner
has prayed for quashing the order dated
29.4.2003 passed by the Deputy Director
of Consolidation, Azamgarh and the order
dated 21.3.2003 passed by the Assistant
Settlement
Officer
of
Consolidation,
Azamgarh.

3. Brief facts giving rise to this writ
petition are;

The respondent no. 4 filed a time
barred appeal under Section 11 (1) of the
U.P. Consolidation of Holdings Act
against the order dated 5.4.1986 passed by
the Consolidation Officer under Section
9-A (2) of the said Act. Along with appeal
affidavit of the Pradhan of the Gaon
Sabha was also filed. Benefit under
Section 5 of the Limitation Act was also
claimed and it was prayed that the delay
in filing the appeal be condoned. In
appeal it was stated that plot No. 521 area
245 Karis was recorded as pond in basic
year records and was also recorded as
pond in Khatuani of 1307 F. It was
specifically pleaded in paragraph 2 of the
appeal
that
neither
any
case
was
registered as case No.034 nor it was ever
decided by the court and the objection is
ante dated and the order shown to have
been passed, was not passed by the
Presiding Officer nor it contained the
signatures of the Presiding Officer. It was
further stated that the aforesaid order was
ex parte. In paragraph 6 it was stated that
entire proceedings were ante dated and
fictitious. In paragraph 7 of the appeal it
was stated that the order dated 5.4.1986
was shown to have been incorporated in
the records after nine years. It was stated
that after coming to know about the above
facts the appellant informed the said facts
to the District Government Advocate and
an application was also filed before the
Collector under Section 33/39 of the U.P.
Land Revenue Act but the Collector took
the view that with regard to legality and
validity of the order dated 5.4.1986
proceedings under Section 33/39 of the
U.P.
Land
Revenue
Act
are
not
maintainable. It was stated that the order
has been passed for filing the appeal by
the Incharge Gaon Sabha/ Collector.
These facts were verified on affidavit on
basis of which benefit under Section 5 of
the Limitation Act, was claimed. An
objection was filed by the petitioner
before the Assistant Settlement Officer of
Consolidation in which it was stated that
the appeal is barred by 16 years and hence
no case has been made out for grant of
benefit under Section 5 of the Limitation
Act. It was further stated that the
proceedings under Section 33/39 were
held in the court of Collector in which the
Pradhan herself appeared on 29.6.2002
hence it cannot be stated that she had no
knowledge. The Assistant Settlement
Officer of Consolidation by order dated
21.3.2003 gave the benefit under Section
5 of the Limitation Act in the appeal and
condoned the delay in filing the appeal.
The Assistant Settlement Officer of
Consolidation
fixed
the
appeal
for
hearing. Against the said order dated
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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21.3.2003 the petitioner filed a revision
under Section 48 of the said Act which
revision has been dismissed by the
Deputy Director of Consolidation on
29.4.2003. The Deputy Director of
Consolidation took the view that the
appellate court has only granted benefit
under Section 5 of the Limitation Act
which does not affect the right of the
petitioner. He further observed that on
question of Limitation the courts have to
adopt liberal view. The Deputy Director
of Consolidation with the aforesaid
observations refused to interfere with the
order of the Assistant Settlement Officer
of Consolidation. Against these two
orders the writ petition has been filed by
the petitioner.

4. Sri Sankatha Rai, learned counsel
for the petitioner contended that the error
has been committed by the courts below
in condoning the delay in filing the
application under Section 5 of the
Limitation Act. It has been contended that
there was no sufficient ground for
condoning the delay of 16 years. He
further
contended
that
before
the
Consolidation
Officer
Pradhan
also
appeared and it cannot be believed that
subsequent Pradhan did not know about
the order. Sri Rai further contended that
the
consolidation
authorities
while
deciding question of limitation had no
jurisdiction to consider the merits of the
case. Sri Rai further contended that the
land in dispute was grove of the
petitioner.
Learned
counsel
for
the
petitioner referred to entries of 1272F and
claimed that it was recorded in the name
of the ancestor Ramanand Lal who was in
possession. The learned counsel for the
petitioner has further contended that
several documents including comparable
table of 1307 F was filed before the
Consolidation Officer who rightly upheld
the petitioner as grove holder. Counsel for
the petitioner also placed reliance on
various judgments of this Court, namely,
1998 R.D. 18 P.K. Ram Chandran
Versus State of Kerala and another
(Supreme Court), 1996 A.W.C. 1018
Girja Shankar and another Versus
Deputy
Director
of
Consolidation,
Bhadoi and others, 1995 R.D. 102 Ram
Charan Versus Ziladhikari Deputy
Director of Consolidation Banda and
others and Judgment Today 1998 (8) S.C.
529 Collector of Customs, Bombay Vs.
Hari & Company, Bombay. Sri A.K.
Singh learned counsel appearing for the
respondents refuting the submissions of
the counsel for the petitioner contended
that sufficient cause was shown for
condonation of delay and the Assistant
Settlement
Officer
of
Consolidation
rightly condoned the delay in filing the
appeal. The counsel for the respondents
submitted that the land was recorded as
Pokhari (pond) in basic year entry and
order of Consolidation Officer said to
have been passed was ex parte to the
Gaon Sabha. He further contended that
the consolidation courts are under duty to
protect the properties of the Gaon Sabha
and no error was committed by the
Assistant
Settlement
Officer
of
Consolidation in condoning the delay. He
has placed reliance on the judgment of the
apex Court in 1998 R.D. 607 N.
Balakrishnan
Versus
M.
Krishnapurthy reported in 2000 RD 531
Ram Murat (Dead) By L.Rs. and
another Versus Deputy Director of
Consolidation and others; 1994 A.L.R.
503 Ambika Prasad and others Versus
Commissioner Jhansi Division Jhansi
and others and 2000 R.D. 693 Praveen
Begum (Smt.) Vs. Additional District
Judge, Agra and another.
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2 All] Ram Chandar V. Dy. Director, Consolidation, Azamgarh and others
431

5. I have considered the submissions
of counsel for both the parties and
perused the record.

6. The first submission of counsel
for the petitioner is that no sufficient
cause shown by the respondents for
allowing the application under Section 5
of the Limitation Act. For considering the
aforesaid submission it is necessary to
look into the allegations made in appeal
and the cause shown for delay before the
appellate court. A copy of grounds of
appeal has been filed as Annexure-6 to
the Writ Petition. Benefit under Section 5
of the Limitation Act has been claimed in
the memo of appeal itself and the relevant
facts for claiming benefit under Section 5
of the Limitation Act are contained in the
memo of appeal. An affidavit has been
filed by the respondent in support of the
memo of appeal verifying the contents
thereof. In the affidavit also benefit under
Section 5 of the Limitation Act has been
claimed. In paragraph 2 of the memo of
appeal it has been claimed that neither the
case No. 934 was ever instituted nor
proceeded in the court nor decided by the
court. It is claimed that objection is ante
dated and the order is rendered by some
unknown person which also do not
contain the signatures of the Presiding
Officer. The allegation in paragraph 5 is
that the proceedings are ante dated and
fictitious. In paragraph 7 it has been stated
that although the order is alleged to have
been passed on 5.4.1986 but it has been
incorporated in the records after nine
years. Alternatively in paragraph 7 it has
been stated that in case any proceedings
was done in collusion of ex Pradhan there
is no binding of such proceedings on the
appellant. In paragraph 8 it has been
stated that after coming to know an
objection under Sections 33/39 of the U.P.
Land Revenue Act was filed before the
Collector for correcting the entry which
application was held not maintainable.
For challenging the validity and propriety
of the alleged case No. 934 decided on
5.4.1986 it has been stated that thereafter
an application was moved before the
Incharge
Gaon
Sabha/Collector
who
issued direction for filing the appeal and
thereafter the appeal has been filed. The
facts as narrated in the appeal clearly
shows that the case of the appellant is that
the order dated 5.4.1986 was ex parte to
Gaon Sabha and the Amaldaramad of
which was made after nine years. Copy of
the order of the Consolidation Officer said
to have been passed on 5.4.1986 has been
filed as Annexure-5 to the writ petition.
The said order do not disclose that the
order was passed after contest or the State
of Uttar Pradesh who was arrayed as
respondent was served. The order shows
that the Pradhan appeared as a witness in
favour of the petitioner. In the writ
petition it has been stated that the
objection filed by the petitioner was also
barred by time. On the facts as disclosed
in the memo of appeal the Assistant
Settlement
Officer
of
Consolidation
exercising his discretion granted the
benefit of Section 5 of the Limitation Act.
The Assistant Settlement Officer of
Consolidation in his order has noted in
detail the facts given in the memo of
appeal for explaining the delay. The
Assistant
Settlement
Officer
of
Consolidation has accepted the facts
stated in the affidavit for giving benefit
under Section 5 of the Limitation Act. It
is true that the order of the Assistant
Settlement Officer of Consolidation do
not give elaborate finding but the order
discloses that the Assistant Settlement
Officer of Consolidation has taken into
consideration all the relevant facts stated
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
432
in the appeal as noted above. The
principle for exercise of discretion in
condoning the delay under Section 5 of
the Limitation Act are well established. In
A.I.R. 1968 SC 222 Sarpanch, Lonand
Grampanchayat
Versus
Ramgiri
Gosavi and another the apex Court
observed in paragraph 4 which is
extracted below:-

"(4) The wording of the second
proviso is similar to the provisions of S.5
of the Indian Limitation Act. In Krishna
V. Chatrappan (1890) ILR 13 Mad. 269
the Madras High Court indicated in the
following passage how the discretion
under S. 5 should be exercised:

"We think that Section 5 gives the
Courts a discretion which in respect of
jurisdiction is to be exercised in the way
in which judicial power and discretion
ought to be exercised upon principles
which are well understood the words
sufficient
cause
receiving
a
liberal
construction so as to advance substantial
justice when no negligence nor inaction
nor want of bona fides is imputable to the
appellant"

This decision received the approval
of this Court in Dinabandhu Sahub v.
Jadumoni Mangaraj 1955-I SCR 140 at p.
146 (AIR 1954 SC 411 at p. 414) and
Ramlal Motilal v. Rewa Coal fields Ltd.
1962-2 SCR 762 at p. 767: (AIR 1962 SC
361 at p. 363). The words "sufficient
cause" in the second proviso to S. 20 (2)
should
receive
a
similar
liberal
construction."

7. The apex court in the aforesaid
judgment laid down that sufficient cause
should receive a liberal construction. It
was further laid down in the said
judgment that the High Court will not
review the discretion but it may interfere
if the exercise of discretion is capricious
or perverse or ultra vires. The apex Court
in the said judgment also laid down that
the High Court will not interfere merely
because it may take a different view of the
facts in exercise of the discretion
differently. Following observations were
made by the apex Court in paragraph 6 of
the judgment:-

"6. Having regard to all the
circumstances of the case, the employees
were not guilty of inaction or negligence
and the entire delay in presenting the
application was due to their honest
though mistaken belief that the relief of
overtime wages would be granted to them
through the intervention of the inspectors
and their superior officers. It is not shown
that in condoning the delay the Authority
acted arbitrarily or capriciously or in
excess of its jurisdiction or that it
committed any error apparent on the face
of the record. In the application under S.
20 (2), some of the employees claimed
overtime wages for periods prior to
January 1, 1961. The Authority declined
to condone the delay in respect of claims
for the period prior to January 1, 1961.
On a careful consideration of the relevant
materials the Authority condoned the
delay in respect of claims subsequent to
January 1, 1961 only. The Court cannot
interfere merely because it might take a
different view of the facts and exercise the
discretion differently. It is not shown that
the
impugned
order
led
to
grave
miscarriage of justice. The High Court
refused to interfere under Article 227. We
think that this is not a fit case for
interference by us under Art. 136."

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2 All] Ram Chandar V. Dy. Director, Consolidation, Azamgarh and others
433

8. The counsel for the petitioner has
placed reliance on the judgement of the
apex Court in 1998 R.D. 18 P.K. Ram
Chandran Versus State of Kerala and
another (Supreme Court) in which case
the High Court has condoned the delay in
filing appeal which was set aside by the
apex Court. From the judgment of the
apex Court in P.K. Ram Chandran's
Case it is clear that the apex Court noted
in the judgement the explanation given by
the petitioner and held that no explanation
much less the reasonable or satisfactory
explanation has been offered by the State
for condonation of delay. Following
observation was made by the apex Court
in the judgment:-

"We are not satisfied that in the facts
and circumstances of this case, any
explanation, much less a reasonable or
satisfactory one had been offered by the
respondent State for condonation of the
inordinate delay of 565 days."

9. In the present case the explanation
given by the respondent as noted above is
satisfactory and the exercise of discretion
by the Assistant Settlement Officer of
Consolidation in condoning the delay,
cannot be said to be arbitrary, capricious,
or ultra vires. Explanation given for
condonation has been noted by the
Assistant
Settlement
Officer
of
Consolidation in his judgement and he
having found them satisfactory no case
has been made out for interference under
Article 226 of Constitution by this Court.

10. In the judgment of this Court
reported in 1996 A.W.C. 1018 Girja
Shanker and another Versus Deputy
Director of Consolidation, Bhadoi and
others no finding was recorded by the
Settlement Officer of Consolidation that
the reason is sufficient. Since there was
no finding the matter was remanded to the
Assistant
Settlement
Officer
of
Consolidation for again deciding the
application under Section 5 of the
Limitation
Act
by
the
Assistant
Settlement Officer of Consolidation, in
the present case the Assistant Settlement
Officer of Consolidation has found the
reason given in the affidavit sufficient for
condonation of delay, the Deputy Director
of Consolidation has also refused to
interfere in the order of the Assistant
Settlement Officer of Consolidation. In
this view of matter the aforesaid judgment
do not help the petitioner in the present
case.

11. In Ram Charan's Case (supra)
this Court has laid down that the mere fact
that the rights of the parties are to be
determined
in
the
consolidation
proceedings and if such rights are not
decided the parties shall be affected itself
is not a ground to allow the application
which is filed under Section 5 of the
Limitation Act. This Court held that the
authorities
have
to
consider
the
explanation offered by the applicant and
the affidavit filed in support of such
application. In Ram Charan's case
(supra) this Court ultimately observed in
paragraph 12 and 13 which are noted
below:-

"12. In the present case, however,
looking into the facts of the case it would
not be appropriate to remand the case for
deciding the application under Section 5
of the Limitation act. The proceedings are
pending since the year 1976. The
objection filed by respondents was
dismissed on 30.7.1986. The contention
of the respondents is that the parties have
entered into compromise. This Court is
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
434
slow in interfering with the orders
condoning the delay under Article 226 of
Constitution of India.

13. In Smt. Ram Thakur v. Deputy
Director of Consolidation and others
(1975 RD 271) it was held that the High
Court should not interfere, under Article
226 of Constitution of India, in the
exercise of discretion in condoning the
delay by the Consolidation Authorities.
Similar view was expressed in Ram
Chand and another v. Deputy Directory
of Consolidation and others (1984 RD
258)"

 12. In the present case the Assistant
Settlement Officer of Consolidation has
not
allowed
the
said
application
ultimately on the ground that the rights of
the parties should be determined in the
consolidation
proceedings
on
merits
rather the Assistant Settlement Officer of
Consolidation found the affidavit and the
reasons given therein sufficient for
condonation of delay. In Ram Charan's
case (supra) the Court refused to interfere
with the order of the Assistant Settlement
Officer of Consolidation condoning the
delay. Learned counsel for the petitioner
has also relied on the judgement of the
apex Court in Ram Kali Devi (Smt.) vs.
Manager,
Punjab
National
Bank
Shamshabad and others reported in JT
1998 (8) SCC 529 in which the apex
Court observed that the merits of the case
cannot be looked at without condoning
the delay. The ratio laid down by the apex
Court in the said judgment is well
established. In the present case the
Assistant
Settlement
Officer
of
Consolidation has not considered the
merits of the case nor the condonation has
been allowed relying on the merits of the
claim of the respondent no. 2. The
Assistant
Settlement
Officer
of
Consolidation has fixed a date for hearing
of the appeal on merits. The judgement of
this Court in Ram Kali Devi's case has
no application on the facts of this case.

13. The judgment of 1998 R.D. 607
N.
Balakrishnan
versus
M.
Krishnapurthy relied upon by the
counsel for the respondents do support his
contention. The apex Court in the said
judgment has laid down the principles
which are to govern the exercise of
discretion
while
considering
the
application under Section 5 of the
Limitation Act. The following was laid
down by the apex court in the aforesaid
case:-

"A court knows that refusal to
condone delay would result in foreclosing
a suitor from putting forth his cause.
There is no presumption that delay in
approaching
the
court
is
always
deliberate. This Court has held that the
words "sufficient cause" under Section 5
of the Limitation Act should receive a
liberal construction so as to advance
substantial justice vide Shankutala Devi
Jain v. Kuntal Kumari (AIR 1969 SC 575)
and State of West Bengal v. The
Administrator, Howrah Municipality (AIR
1972 SC 749).

It must be remembered that in every
case of delay there can be some lapse on
the part of the litigant concerned. That
alone is not enough to turn down his plea
and to shut the door against him. If the
explanation does not smack of mala fides
or it is not put forth as part of a dilatory
strategy the court must show utmost
consideration to the suitor. But when
there is reasonable ground to think that
the delay was occasioned by the party
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435
 deliberately to gain time then the court
should lean against acceptance of the
explanation. While condoning the delay
the Court should not forget the opposite
party altogether. It must be borne in mind
that he is a looser and he too would have
incurred quiet a large litigation expenses.
It would be a salutary guidance that when
courts condone the delay due to laches on
the part of the applicant the court shall
compensate the opposite party for his
loss.

In this case explanation for the delay
set up by the appellant was found
satisfactory to the trial court in the
exercise of its description and the High
Court went wrong in upsetting the
finding, more so when the High Court was
exercising revisional jurisdiction."

14. In view of what has been said
above, it is clear that no such error was
committed by the Assistant Settlement
Officer of Consolidation in exercise of his
discretion by condoning the delay in filing
the
appeal
which
may
warrant
interference by this Court under Article
226 of Constitution of India. It has also
not been shown that any great injustice
has been done to the petitioner by
condoning the delay in filing the appeal.
Petitioner will have an opportunity to
have his say on merits of the claim before
the Assistant Settlement Officer of
Consolidation. In facts and circumstances
of this case I do not find it a fit case for
interferences
under
Article
226
of
Constitution of India.

15. The writ petition lacks merit and
is summarily rejected.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.5.2003

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Revision No. 472 of 2003

Santosh Kumar and others ...Revisionists
Versus
State of U.P. and another ...Respondents

Counsel for the Revisionists:
Sri Dharmendra Singhal

Counsel for the Respondents:
Sri Sunil Kumar
A.G.A.

Cr.P.C.- S. 227- Stage of framing chargecourt to see prima-facie evidence against
accused and not to evidence. Held- there
was primafacie evidence.
Case referred to:
2000 (1) JIC 765 (SC)
2001 (42) ACC 39
2001 (42) ACC 469
2001 (42) ACC 840

(Delivered by Hon'ble K.N. Sinha, J.)

1. The above two revisions arise out
of the same judgment hence taken up
together for hearing and disposed of.

2. The facts giving rise to the
present revisions are that on the report of
Smt. Minakshi Verma, opposite party no.
2 in revision no. 472 of 2003 the case was
investigated and chargesheet was filed
against revisionists and others in case
crime no. 161/02. This chargesheet was
filed against Santosh Kumar Verma,
Phool Chand Adhupia, Satya Prakash,
Smt. Kamla Devi, Smt. Anita alias Guddi,
Raj Kumar and Smt. Shashi Verma under
Section 498-A, 307, 323, 506 I.P.C. and
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