STATE OF MAHARASHTRA Vs ARUN GULAB GAWALI .
Bench: P. SATHASIVAM,B.S. CHAUHAN, , ,
Case number: Crl.A. No.-000590-000590 / 2007
Diary number: 20477 / 2006
Advocates: RAVINDRA KESHAVRAO ADSURE Vs
VISHWAJIT SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 590 of 2007
State of Maharashtra & Ors. …Appellants
Versus
Arun Gulab Gawali & Ors. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the Judgment and
Order dated 27.07.2006 in Criminal Writ Petition No.3169/2005
with Criminal Writ Petition Nos. 874 and 878 of 2006, passed by
the High Court of Judicature at Bombay, allowing the said
petitions filed by the respondents and quashing the Criminal
Complaint/FIR.
2. Facts and circumstances giving rise to the present appeal
are that Mohd. Qureshi, one of the respondents, lodged a
complaint dated 8.11.2005 with Deputy Commissioner of Police,
CID (Unit III) against the Arun Gulab Gawali gang. The said
complaint was forwarded to Agripada Police Station.
Accordingly, CR No. 241/2005 under Sections 384, 386, 506(ii),
120, 34 of Indian Penal Code, 1860 (in short, “IPC”) was
registered against Arun Gulab Gawali, MLA, respondent herein,
and members of his gang, namely, Sunil Gathe, Sadanand
Panchal, Rajendra Sadvirkar and Sanjay Girkar. After taking
over of the investigation by DCB, CID, Mumbai, CR No. 135/05
was registered.
3. According to the said complaint, there was a commercial
transaction in December, 2002, between one Mr. Doshi and
Mohd. Qureshi in respect of the purchase of Hotel Pritam
International at Ambernath in partnership and certain payments
had also been made, but there was a dispute between the
parties. An advertisement was issued for sale of the hotel, but
the said hotel could not be sold for two years and the differences
between them continued. On 15th March, 2005, the complainant
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received a telephone call from an unknown person, who used
very vulgar and indecent language and told the complainant to
come to Dagadi Chawl for settlement of the dispute of Hotel
Pritam. Dagadi Chawl is the residential place of respondent,
Arun Gulab Gawali, and he also has an office in that Chawl. The
complainant became scared and went to Dagadi Chawl on 18th
March, 2005. On reaching there the complainant met one person
by the name Sanjay Girkar, who abused him. Sanjay Girkar
contacted Mr. Doshi on his mobile and spoke with him in vulgar
language and asked him to come to Dagadi Chawl for settlement
of the case of Hotel Pritam. The complainant and Mr. Doshi
visited Dagadi Chawl a number of times along with other
persons. The accomplices of Arun Gulab Gawali gave threats to
them and directed them to act according to their instructions.
Due to fear of threats of the members of the said gang, Mr.
Doshi and the complainant agreed to pay the extortion money.
The complainant was instructed to pay a sum of Rs. 15 lakhs to
Shiv Shambhu Trust, which is managed by Arun Gulab Gawali.
The complainant paid the amount of Rs.15 lakhs to the said
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Trust under the threat that if this amount was not paid, then his
life would be in danger. The complainant also learnt that Mr.
Doshi had already paid Rs. 25 lakhs to the said gang under
threat. Subsequently, the accomplices of Arun Gulab Gawali
made telephone calls to the complainant to pay Rs. 3 lakhs more
and the said amount was also paid. They also forced the
complainant to sign certain papers.
4. Mohd. Qureshi, the complainant/respondent, filed
application dated 14.11.2005 before the Court of Metropolitan
Magistrate (46th Court), Mazgaon, Mumbai stating that he did not
want to proceed with the complaint. The court rejected the said
application vide order dated 17.11.2005.
5. Mohd. Qureshi and his wife Ayesha Qureshi, respondents,
filed Writ Petition No. 2906/2005 on 29.11.2005, before the High
Court alleging harassment by the police and seeking the
direction of removal of surveillance by police, as police had been
posted with them under the garb of protection, and asking for the
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initiation of a judicial inquiry against the police alleging that
Mohd. Qureshi was forced by the police itself to lodge the
complaint dated 8.11.2005 against the Arun Gulab Gawali gang
and also forced to write an application seeking protection, though
they never sought any such protection.
6. The High Court disposed of the said Writ Petition vide order
dated 21.12.2005, recording the statement of the petitioners’
counsel that police protection had already been withdrawn and
giving liberty to the said petitioners to make their grievances
before the Commissioner of Police, Mumbai. The Commissioner
of Police was directed that in case, such a complaint is filed, it
should be decided expeditiously in accordance with law.
7. Mohd. Qureshi filed Criminal Writ Petition No. 874/2006
before the High Court of Bombay for quashing the CR No.
241/2005. Arun Gulab Gawali also preferred Writ Petition No.
3169/05 seeking quashing of FIR 241/2005 at Agripada Police
Station, and Writ Petition No. 878/2006 for quashing of CR No.
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135 of 2005. All the said Writ Petitions were clubbed and heard
together. The appellants herein contested the said Petitions by
filing Counter Affidavits.
8. In the meanwhile, Arun Gulab Gawali was granted
anticipatory bail by the Sessions Court vide order dated
3.12.2005. The High Court cancelled the anticipatory bail of
Arun Gulab Gawali vide Order dated 21.02.2006 and remanded
the case to the Sessions Court to consider it afresh. During the
pendency of the reconsideration of the said application,
proceedings under Maharashtra Control of Organised Crime Act,
1999 (MCOCA) against Arun Gulab Gawali were initiated vide
order dated 14.04.2006.
The High Court allowed all the said Writ Petitions quashing
the C.R.No.241/2005, and C.R. No.135/2005. Hence, this
appeal.
9. Sh. Arun R. Pednekar, learned counsel for the appellants,
has submitted that the High Court has committed a grave error in
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quashing the FIR/complaint. Mohd. Qureshi, respondent, had
filed a complaint against the Arun Gulab Gawali gang on the
basis of which a case was registered. If for certain reasons or
under threat by the Arun Gulab Gawali gang, Mohd. Qureshi did
not want to pursue the matter further, such a course could not be
a ground for quashing the proceedings. More so, the High Court
reached the conclusion that if the proceedings were permitted to
continue, there was no possibility of conviction after conclusion
of the trial. The Court, in exercise of its inherent power, is not
competent to take a decision at the preliminary stage and
determine as to whether there is a possibility of conviction.
Thus, the impugned Judgment and order of the High Court is
liable to be set aside.
10. Per contra, Mr. S.B. Sanyal, learned senior counsel for
Respondent Nos. 2 & 3 and Mr. Makarand D. Adkar, learned
counsel for the respondent No.1, have vehemently opposed the
appeal contending that the Court had examined the facts and
taken note of various proceedings initiated by the respondents in
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the meantime to the effect that the police officials had been
harassing Mohd. Qureshi and his family and it was the police
who forced the complainant to lodge the complaint against the
Arun Gulab Gawali gang and, he was forced to take police
protection labeling him as a complainant against the Arun Gulab
Gawali gang. Ayesha Qureshi filed the appropriate application
before the Metropolitan Magistrate on 9.11.2005 and
approached the State Human Rights Commission on 11.11.2005
against the atrocities of the police. The High Court decided the
matter after considering all the aspects. The Judgment and
order of the High Court does not warrant any interference. The
appeal lacks merit and is liable to be dismissed.
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
12. The power of quashing criminal proceedings has to be
exercised very sparingly and with circumspection and that
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too in the rarest of rare cases and the Court cannot be justified
in embarking upon an enquiry as to the reliability or genuineness
or otherwise of allegations made in the F.I.R./Complaint, unless
the allegations are so patently absurd and inherently improbable
so that no prudent person can ever reach such a conclusion.
The extraordinary and inherent powers of the Court do not confer
an arbitrary jurisdiction on the Court to act according to its whims
or caprice. However, the Court, under its inherent powers, can
neither intervene at an uncalled for stage nor it can ‘soft-pedal
the course of justice' at a crucial stage of investigation/
proceedings. The provisions of Articles 226, 227 of the
Constitution of India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as ‘Cr.P.C.’) are a device to
advance justice and not to frustrate it. The power of judicial
review is discretionary, however, it must be exercised to prevent
the miscarriage of justice and for correcting some grave errors
and to ensure that esteem of administration of justice remains
clean and pure. However, there are no limits of power of the
Court, but the more the power, the more due care and caution is
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to be exercised in invoking these powers. (Vide State of West
Bengal & Ors. Vs. Swapan Kumar Guha & Ors. AIR 1982 SC
949; M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial
Magistrate & Ors. AIR 1998 SC 128; G. Sagar Suri & Anr. Vs.
State of U.P. & Ors. AIR 2000 SC 754; and Ajay Mitra Vs.
State of M.P. & Ors. AIR 2003 SC 1069).
13. In R.P. Kapur Vs. State of Punjab AIR 1960 SC 866, this
Court laid down the following principles :-
(I) Where institution/continuance of criminal proceedings
against an accused may amount to the abuse of the
process of the court or that the quashing of the
impugned proceedings would secure the ends of justice;
(II) where it manifestly appears that there is a legal bar
against the institution or continuance of the said
proceeding, e.g. want of sanction;
(III) where the allegations in the First Information Report
or the complaint taken at their face value and accepted
in their entirety, do not constitute the offence alleged;
and
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(IV) where the allegations constitute an offence alleged
but there is either no legal evidence adduced or
evidence adduced clearly or manifestly fails to prove the
charge.
14. In State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors.
AIR 1992 SC 604, this Court laid down the similar guidelines for
exercising the inherent power, giving types of cases where the
Court may exercise its inherent power to quash the criminal
proceedings. However, the types of cases mentioned therein do
not constitute an exhaustive list, rather the cases are merely
illustrative.
15. In State of Karnataka Vs. L.Muniswamy & Ors. AIR 1977
SC 1489, this Court held as under :-
“In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate
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into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.” (Emphasis added).
16. The inherent power is to be exercised ex debito justitiae, to
do real and substantial justice, for administration of which alone
Courts exist. Wherever any attempt is made to abuse that
authority so as to produce injustice, the Court has power to
prevent the abuse. It is, however, not necessary that at this
stage there should be a meticulous analysis of the case before
the trial to find out whether the case ends in conviction or
acquittal. (Vide Mrs. Dhanalakshmi Vs. R. Prasanna Kumar &
Ors. AIR 1990 SC 494; Ganesh Narayan Hegde Vs. S.
Bangarappa & Ors. (1995) 4 SCC 41; and M/s Zandu
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Pharmaceutical Works Ltd. & Ors. Vs. Md. Sharaful Haque &
Ors. AIR 2005 SC 9).
17. In State of Orissa & Anr. Vs. Saroj Kumar Sahoo (2005)
13 SCC 540, it has been held that probabilities of the
prosecution version can not be analysed at this stage. Likewise
the allegations of mala fides of the informant are of secondary
importance. The relevant passage reads thus:
“It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with.” (Emphasis added).
18. In B.S. Joshi & Ors. Vs. State of Haryana & Anr. AIR
2003 SC 1386, this Court held that inherent power must be
utilised with the sole purpose of preventing the abuse of the
process of the court or to otherwise serve the ends of justice. In
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exercise of inherent powers, proper scrutiny of facts and
circumstances of the case concerned are absolutely imperative.
19. In Madhavrao Jiwaji Rao Scindia & Anr. Vs.
Sambhajirao Chandrojirao Angre & Ors. AIR 1988 SC 709,
this court held as under :-
“The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” (Emphasis added).
20. This Court, while reconsidering the Judgment in
Madhavrao Jiwaji Rao Scindia (supra), consistently observed
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that where matters are also of civil nature i.e. matrimonial, family
disputes, etc., the Court may consider “special facts”, “special
features” and quash the criminal proceedings to encourage
genuine settlement of disputes between the parties.
21. The said Judgment was reconsidered and explained by this
Court in State of Bihar & Anr. Vs. Shri P.P. Sharma & Anr.
AIR 1991 SC 1260, as under :
“Madhaorao J. Scindhia v. Sambhaji Rao AIR 1988 SC 709, also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of Trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120B I.P.C. which the High Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offences were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal………Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether
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there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet.” (Emphasis added).
22. In Alpic Finance Ltd. Vs. P. Sadasivan & Anr. AIR 2001
SC 1226, this Court explained the ratio of the Judgment in
Madhavrao Jiwaji Rao Scindia (supra), that law laid down
therein would only apply where it is a question of a civil wrong,
which may or may not amount to a criminal offence. Madhavrao
Jiwaji Rao Scindia (supra) was the case involving a trust where
proceedings were initiated by some of the trustees against other
trustees. This Court, after coming to the conclusion, that the
dispute was predominantly civil in nature and that the parties
were willing to compromise, quashed the proceedings.
23. In M.N.Damani Vs. S.K. Sinha & Ors. AIR 2001 SC 2037,
this Court again explained the Judgment in Madhavrao Jiwaji
Rao Scindia (supra) in a similar manner.
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24. Thus, the judgment in Madhavrao Jiwaji Rao Scindia
(supra) does not lay down a law of universal application. Even as
per the law laid down therein the court can not examine the
facts/evidence etc. in every case to find out as to whether there
is sufficient material on the basis of which the case would end in
conviction. The ratio of the said Judgment is applicable in limited
cases where the Court finds that the dispute involved therein is
predominantly civil in nature and that the parties should be given
a chance to reach a compromise e.g. matrimonial, property and
family disputes etc. etc. The Superior Courts have been given
inherent powers to prevent the abuse of the process of Court
where the Court finds that the ends of justice may be met by
quashing the proceedings, it may quash the proceedings, as the
end of achieving justice is higher than the end of merely
following the law. It is not necessary for the court to hold a full-
fledged inquiry or to appreciate the evidence, collected by the
Investigating Agency, if any to find out whether the case would
end in conviction or acquittal.
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25. The instant case is required to be examined in the light of
the aforesaid settled legal propositions.
The High Court proceeded on the perception that as the
complainant himself was not supporting the complaint, he would
not support the case of the prosecution and there would be no
chance of conviction, thus the trial itself would be a futile
exercise. Quashing of FIR/Complaint on such a ground cannot
be held to be justified in law. Ordinarily, the Court of Sessions is
empowered to discharge an accused under Section 227 Cr.P.C.
even before initiating the trial. The accused can, therefore, move
the Trial Court itself for such a relief and the Trial Court would be
in a better position to analyse and pass an order as it is
possessed of all the powers and the material to do so. It is,
therefore, not necessary to invoke the jurisdiction under Section
482 Cr.P.C. for the quashing of a prosecution in such a case.
The reliance on affidavits by the High Court would be a weak,
hazy and unreliable source for adjudication on the fate of a trial.
The presumption that an accused would never be convicted on
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the material available is too risky a proposition to be accepted
readily, particularly in heinous offences like extortion.
A claim founded on a denial by the complainant even
before the trial commences coupled with an allegation that the
police had compelled the lodging of a false FIR, is a matter
which requires further investigation as the charge is levelled
against the police. If the prosecution is quashed, then neither the
Trial Court nor the Investigating Agency has any opportunity to
go into this question, which may require consideration. The State
is the prosecutor and all prosecution is the social and legal
responsibility of the State. An offence committed is a crime
against a society and not against a victim alone. The victim
under undue pressure or influence of the accused or under any
threat or compulsion may resile back but that would not absolve
the State from bringing the accused to book, who has committed
an offence and has violated the law of the land.
Thus, while exercising such power the court has to act
cautiously before proceeding to quash a prosecution in respect
of an offence which hits and affects the society at large. It should
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be a case where no other view is possible nor any investigation
or inquiry is further required. There cannot be a general
proposition of law, so as to fit in as a straitjacket formula for the
exercise of such power. Each case will have to be judged on its
own merit and the facts warranting exercise of such power.
More so, it was not a case of civil nature where there could
be a possibility of compromise or involving an offence which may
be compoundable under Section 320 Cr.P.C., where the Court
could apply the ratio of the case in Madhavrao Jiwaji Rao
Scindia (supra).
Thus, it is a fit case where the impugned Judgment should
be set aside and the case be remitted for deciding afresh. As the
matter is old and we have gone through the entire material on
record, we have taken this task upon ourselves and examined
whether the FIR could have been quashed on other grounds.
The complainant has submitted before the High Court as well as
before us on oath that he was in police custody/police protection
from 7.11.2005 to 9.11.2005 and he was forced to write the
complaint against the Arun Gulab Gawali gang on 8.11.2005.
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Ayesha Qureshi, wife of the complainant, made an application on
9.11.2005 before the Metropolitan Magistrate (37th Court) at
Esplanade for issuing direction to the police to release her
husband or produce him before the court. Immediately after filing
of the said application, Mohd. Qureshi stood released. Again on
11.11.2005, Ayesha Qureshi sent a complaint to the State
Human Rights Commission stating that her husband had been
confined in police custody, tortured and was forcibly made to
sign some papers. On 12.11.2005, Mohd. Qureshi made an
application before Additional Chief Metropolitan Magistrate to
drop the proceedings in the FIR/Complaint. Again on
14.11.2005, Mohd. Qureshi made an application before
Metropolitan Magistrate submitting that he did not want to
proceed with the said complaint. The said application was
rejected by the Metropolitan Magistrate vide order dated
17.11.2005. Mohd. Qureshi and his wife filed the writ petition
before the High Court on 29.11.2005 for the withdrawal of the so-
called police protection and for a judicial inquiry on the issue of
forcing the complainant to lodge an FIR/Complaint against the
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Arun Gulab Gawali gang.
26. The matter was heard by the High Court and disposed of,
issuing a direction that there shall be no police personnel around
Mohd. Qureshi, his wife and other family members and further
directing the Police Commissioner to redress their grievances in
respect of their allegation that Mohd. Qureshi had been forced by
the police to lodge a complaint against the Arun Gulab Gawali
gang. The other writ petitions for quashing of FIR/complaint
were filed by Mohd. Qureshi, his wife Ayesha Qureshi and Arun
Gulab Gawali at a later stage i.e. in April, 2006 and the said
petitions, after contest, had been allowed vide Judgment and
order dated 27.7.2006. If the aforesaid facts are examined in
correct perspective, it is evident that all possible steps had been
taken by Ayesha Qureshi in a very close proximity to the date of
lodging the complaint. At the cost of repetition, we mention again
that the complaint was lodged on 8.11.2005 and application was
moved by Ayesha Qureshi before the Chief Metropolitan
Magistrate for release of Mohd. Qureshi from police custody or
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his production before the court on 9.11.2005. She approached
the State Human Rights Commission on 11.11.2005 and all
other steps have also been taken with due diligence and
promptness. Therefore, it cannot be said that such complaints
had been made by Ayesha Qureshi under any threat or that the
complainant did not want to support the case of the prosecution
for some other reason. There has been a persistent stand taken
by Ayesha Qureshi that the complaint was not made voluntarily
and her husband and other family members had been subjected
to great deal of harassment and persecution by the police for no
fault of theirs. In such a fact-situation, the possibility that the
allegations made by Mohd. Qureshi and Ayesha Qureshi in their
complaints/applications/writ petitions may be true, cannot be
ruled out. Thus, it was a fit case, where in order to meet the
ends of justice and to prevent the miscarriage of criminal justice,
the inherent powers of the Court to quash the FIR/complaint
could have been exercised.
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27. Thus, the complaint dated 8.11.2005 lodged by Mohd.
Qureshi against the Arun Gulab Gawali gang was liable to be
quashed, though for different reasons, as recorded hereinabove.
28. In view of the above, the Criminal Appeal stands
dismissed.
…….....................J. (P. SATHASIVAM)
…… ….................J. (Dr. B.S. CHAUHAN)
New Delhi, August 27, 2010.
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