Further investigation under Section 173(8) CRPC must always relate to incidents of crime for which charge sheet is filed: Karnataka HC - The Daily Guardian
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Further investigation under Section 173(8) CRPC must always relate to incidents of crime for which charge sheet is filed: Karnataka HC

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While spelling out the correct legal position, the Karnataka High Court has in a learned, laudable, landmark and latest judgment titled Virendra Khanna vs State of Karnataka in Writ Petition No. 1983 of 2021 and 2022 LiveLaw (Kar) 27, said in no uncertain terms that further investigation conducted under Section 173(8) of CrPC must always relate to the incident of alleged crime in respect of which the charge sheet has been filed already. It is not re-investigation. Justice Sreenivas Harish Kumar while quashing the two cases registered under the NDPS Act against party organiser Virendra Khanna said that, “Further investigation is always in accordance with Section 173(8) of CrPC with a view to collecting further evidence supplemental to the evidence already on record. It is not reinvestigation.”

To start with, it is first and foremost put forth in para 1 that, “The petitioner has sought writ o f certiorari for quashing proceedings against him in Spl. C.C. 529/2019 on the file of XXXIII Additional City Civil and Sessions Judge and Special Judge for NDPS cases, Bengaluru; supplementary charge sheet dated 1.3.2021 filed in Crime No. 588/2018 of Banasawadi Police Station, and the charge sheet including the supplementary charge sheet filed in connection with FIR in Crime No. 109/2020 of Cottonpet Police Station, Bengaluru.”

While elaborating on the facts, the Bench then envisages in para 2 that, “The necessary facts for disposal of this writ petition are as below:-

On 2.11.2018, the Police Inspector Narcotic Control Bureau, N.T .Pet, Bengaluru, upon a credible information, raided on the house bearing No. 25/1, I Floor, behind Jyothi School, Kacharakanahalli, Thomas Town, Bengaluru, and seized 1.50 Kgs of Cocaine, 940 grams of ecstasy pills, a Toyota Corolla car, a Hero Honda motor bike, a mobile phone and cash of Rs. 6,000/-. They arrested three persons namely Faith Chuks and Kante Henry, two foreign nationals and Prateik Shetty, an Indian. This led to registration of FIR in Crime No. 588/2018 for the offences punishable under sections 21(c), 22(c) and 21(b) of NDPS Act. On 30 .4.2019, charge sheet came to be filed for the said offences under NDPS Act as also for offences under sections 460, 471, 420, 120B of IPC and section 14 of the Foreigners Act. Initially the charge sheet filed was only against accused 1 to 3. In the said charge sheet a foot note was made indicating that further investigation under section 178(3) Cr.P.C had been undertaken.”

To put things in perspective, the Bench then enunciates in para 3 that, “In the last week of August 2020, there was a rumour in Mumbai, Bengaluru and other places that film actors and other celebrities were in the habit of consuming narcotic drugs. In this connection, on 2.9.2020, the Assistant Commissioner of Police, CCB, Bengaluru, namely Sri K.C. Gautam secured one B .K. Ravishankar and subjected him to interrogation. During interrogation, since it appeared that he revealed the name o f the petitioner and stated that the latter was supplying ganja in the parties that he used to arrange at various places in Bengaluru, the petitioner came to be arrested on 4.9.2020 and remanded to the custody in connection with Crime No. 588/2018 . If B.K. Ravishankar came to be arrayed subsequently as accused No.4, the petitioner was arrayed as accused No.5 in Crime No. 588/2018. A search was also conducted in the house of the petitioner at Bengaluru and certain articles came to be seized by drawing a mahazar on 8.9.2020. In the meantime, the Assistant Commissioner of Police Sri K.C. Gautam, submitted a suo-motu report to the Cottonpet police for registration of a separate FIR against twelve accused persons and accordingly, a fresh FIR in Crime No. 109/2020 was registered for the offences under section 21(c), 27(b), 27A, 29 and 21 of NDPS Act and section 120B of IPC. In this FIR, the petitioner was shown as accused No.3. Charge sheet in connection with FIR 109/2020 was filed on 26.2.2021. Supplementary charge sheet was also filed lateron.”

As we see, the Bench then specifies in para 8 that, “After hearing both sides, firstly the events that led to registration of FIRs in Cr.Nos.588/2018 and 109/2020 may be traced. FIR 588/2018 pertains to seizure of 1.5 kilograms of cocaine, 940 grams of ecstasy pills, a Toyota car, a hero honda motor cycle, a mobile phone and cash of Rs. 6,000/- from three accused viz., Faith Chuks, Kante Henrey and Pratheek Shetty. B.K. Ravishankar was not arrayed as accused earlier. Charge sheet was filed on 30.4.2019 reserving further investigation under section 173(8) of Cr .P.C. It was on 3.9 .2020 that B.K. Ravishankar was taken to custody in this crime number as accused no.4. Thereafter another police officer viz., K.C. Goutham subjected him to interrogation in connection with certain rumours about involvement of film actors in consumption of drugs. Based on his statement, FIR in Cr.No.109/2020 came to be registered showing the petitioner as accused no.3 therein. Therefore it is not in dispute that FIR No.109/2020 came to be registered only after B.K. Ravishankar was subjected to interrogation.”

It is worth noting that the Bench then elaborates in para 9 stating that, “Now in FIR. No. 588/2018 , the petitioner has been arrayed as accused no.5. The supplementary charge sheet filed in connection with FIR No. 588/2018 shows that the petitioner had arranged Diwali Pataka party on 3.11.2018 at Taj Hotel, Bengaluru and another party at the Park Hotel, Bengaluru on 7.11.2018 and that in both the parties, he sold the drugs that he had purchased from accused no .1 to 3. The charge sheet filed in relation to FIR No.109/2020 shows that the petitioner was involved in the sale of drugs since the year 2015, that he had arranged a music party in E-zone Club, Marathahalli in March, 2018 and that he had arranged other parties on 9.10.2018, 25.01.2019, 1.6.2019, 8.3.2020 etc. The involvement o f the petitioner, as can be made out from the charge sheet filed in relation to FIR.No.109/2020 came to light only after recording the statement of B.K.Ravishankar. If a separate FIR came to be registered thereafter, it is not understandable as to how the petitioner could be connected with FIR.No.588/2018 in relation to two parties said to have been arranged on 3.11.2018 and 7.11.2018. According to FIR No.588/2018, it was registered only in relation to raid held on 2.11.2018. The further investigation in FIR.No.588/2018 led to implication of the petitioner as accused no. 5. Further investigation must always relate to the incident of crime in respect of which charge sheet has been filed already. As has been held by the Supreme Court in the case of Vinay Thayagi Vs. Irashad Ali – 2013(5) SCC 762, further investigation, reinvestigation and de-novo investigation or fresh investigation, take different meanings. Further investigation is always in accordance with Section 173(8) of Cr.P.C. with a view to collecting further evidence supplemental to the evidence already on record. It is not reinvestigation. In fact, the petitioner had moved for bail by filing Crl.P.No .684/2020 in relation to FIR No.588/2018. In the order passed in the said petition, it has been held that further investigation envisaged in section 173(8) of Cr.P.C., can be undertaken only with the permission of the court. It is also held that further investigation is not reinvestigation or fresh investigation and their meanings can be commonsensically understood. In this case it is alleged that the petitioner purchased the drugs from accused no.1 to 3 for the purpose of selling them in the parties that were arranged on 3.11.2018 and 7.11.2018 . Even if these allegations were to be true , it cannot be said that the sales said to have been made by the petitioner on these two dates can be connected with FIR No.588/2018. It is pertinent to mention here that if the police could register a separate FIR in Crime No.225/2020 in connection with seizing a police uniform from the possession of the petitioner, it is not understandable as to why, the police did not think of registering a separate FIR in relation to incidents dated 3.11 .2018 and 7.11.2018. Absolutely there are no materials to connect the petitioner with the raid conducted on 2.11.2018. As the FIR 588/2018 discloses, initially it was against accused 1 to 3 only and it was from their possession that certain articles were seized. Whatever the police detected in the course of further investigation was altogether a different incident of crime in respect of which a separate FIR was necessary. Thus viewed, as rightly argued by Sri. Hashmath Pasha, arraying the petitioner as accused no. 5 in FIR No.588/2018 and subjecting him to prosecution in Spl.C.C.No.529/19 does not appear to be in accordance with procedure established by law.”

Finally and far most significantly, the Bench then concludes by holding in para 11 that, “It is to be noted here that what is made out by the counsel for the petitioner is a sheer procedural lapse. This can be set-right. If really the petitioner’s involvement is there in commission of offences punishable under the NDPS Act, he must be tried in accordance with law and punished in case the prosecution is able to prove its case beyond reasonable doubt. The lapses in procedural aspects should not come in the way of prosecuting the petitioner. Though this petition is liable to be allowed, it should not be understood as though petitioner cannot be prosecuted without following the procedure established under law. Therefore, permission is to be accorded to the prosecuting agency to set-right all the procedural mistakes and take action against the petitioner in accordance with law. In this view the following:

ORDER

WRIT PETITION IS ALLOWED

The proceedings against the petitioner in Spl.C.C.No.529/2019 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru and the FIR in Crime No.109/2020 and the charge sheet filed against the petitioner as per Annexure-U are quashed. Consequently, the order of taking cognizance against the petitioner on this charge sheet in Spl.C.C.No .212/2021 on the file of the XXXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru, is also quashed. However, this order does not come in the way of prosecuting the petitioner in accordance with law in the light of the observations made above.”

In sum, the Karnataka High Court has been forthright in pointing out the sum and substance of this extremely commendable, cogent, composed and creditworthy judgment that, “Further investigation under Section 173(8) CrPC must always relate to incidents of crime for which charge sheet is filed.” All the Judges who deal with such cases must always adhere to what the Karnataka High Court has laid down so explicitly in this leading case. There can be just no denying it!

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court

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The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.

when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.

when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.

While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.

On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.

The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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