Manish Tyagi vs The State Of Madhya Pradesh on 10 October, 2017

1 CRR No.1000/2017

(Manish Tyagi vs. State of M.P. Anr.)
10.10.2017
Shri S.S. Sikarwar, Counsel for the applicant.
Shri B.P.S. Chauhan, Public Prosecutor for the
respondent No.1/State.

This revision under Section 397/401 of Cr.P.C. has
been filed against the order dated 13.9.2017 passed by
10th ASJ, Gwalior in S.T.No.84/2017 by which the charges
under Sections 455, 506 Part-II, 354 of IPC r/w Section
7/8 of Protection of Children from Sexual Offences Act
have been framed.

The counsel for the applicant has confined his
argument to the charge framed under Section 455 of IPC,
therefore, this case shall be considered in the limited
context only.

The necessary facts for the disposal of the present
revision in short are that the complainant lodged a FIR on
4.2.2017 on the allegation that on 3.2.2017 her father had
gone to High Court and her mother had shifted to her
parents house because of family disputes between her
parents and, therefore, she was all alone in her house. The
applicant was aware of the fact that the complainant is
alone. The applicant entered inside the house of the
complainant and hugged her and started touching her
body. When she tried to raise an alarm, he gagged her
mouth and extended threat to kill her. The applicant was
having a knife, therefore, the complainant got frightened.
The moment she got free from the applicant, she came
out of the house after opening the door and requested her
father to come back. When her father came back, she
2 CRR No.1000/2017

could not narrate the incident to her father because she
was afraid as the applicant had extended the threat to kill
her father. On the next day, when her father noticed that
the complainant is still upset, then he enquired and at that
time, she narrated the incident to her father and
accordingly the FIR was lodged. The statement of the
prosecutrix was also recorded under Section 161 of Cr.P.C.
as well as under Section 164 of Cr.P.C.

It is submitted by the counsel for the applicant that
even if the entire allegations are accepted, then it would
be clear that no offence under Section 455 of IPC is made
out.

Per contra, it is submitted by the State Counsel that
there is a sufficient material available on record to prima
facie show that the applicant had committed an offence
under Section 455 of IPC. The complainant was wrongfully
restrained by the applicant by hugging her. The applicant
had committed lurking house-trespass and, therefore, all
the ingredients for prima facie making out an offence
under Section 455 of IPC are available on record.

Heard the learned counsel for the parties.
Before considering the submissions made by the
counsel for the applicant, it would be appropriate to
consider the legal provisions. Section 339 of IPC defines
wrongful restraint which reads as under:-

“339. Wrongful restraint.–Whoever
voluntarily obstructs any person so as to
prevent that person from proceeding in
any direction in which that person has a
right to proceed, is said wrongfully to
restrain that person.

Exception.-The obstruction of a private way
3 CRR No.1000/2017

over land or water which a person in good
faith believes himself to have a lawful right
to obstruct, is not an offence within the
meaning of this section.”

Sections 442 and 443 define house-trespass and
lurking house-trespass, which read as under:

“442. House-trespass.-Whoever commits
criminal trespass by entering into or
remaining in any building, tent or vessel
used as a human dwelling or any building
used as a place for worship, or as a place
for the custody of property, is said to
commit “house-trespass”.

Explanation.-The introduction of any part
of the criminal trespasser’s body is
entering sufficient to constitute house-
trespass.

443. Lurking house-trespass.–Whoever
commits house-trespass having taken
precautions to conceal such house-
trespass from some person who has a right
to exclude or eject the trespasser from the
building, tent or vessel which is the subject
of the trespass, is said to commit “lurking
house-trespass”.

Section 455 deals with lurking house-trespass or
house-breaking after preparation for hurt, assault or
wrongful restraint and it reads as under:-

“455. Lurking house-trespass or
house-breaking after preparation for
hurt, assault or wrongful restraint.–
Whoever commits lurking house-trespass,
or house-breaking, having made
preparation for causing hurt to any person,
or for assaulting any person, or for
wrongfully restraining any person, or for
putting any person in fear of hurt or of
assault or of wrongful restraint, shall be
punished with imprisonment of either
description or a term which may extend to
4 CRR No.1000/2017

ten years, and shall also be liable to fine.”

It is submitted by the counsel for the applicant that
there is nothing on record that the applicant had
committed house-breaking as he had not entered inside
the house in the six ways as pointed out under Section
445 of IPC.

The submissions made by the counsel for the
applicant cannot be accepted for simple reason that for
making out an offence under Section 455 of IPC by a
person, “house-breaking” is not the sole criteria but a
person lurking house-trespass can also be tried for offence
under Section 455 of IPC.

Lurking house-trespass does not require that any
door or any wall should be broke open but if any person
commits house-trespass having taken precautions to
conceal such house-trespass, then the person would be
guilty of committing offence under Section 455 of IPC, if
the other requirements of Section 455 of IPC are fulfilled.

If the statement of the prosecutrix recorded under
Section 161 of Cr.P.C. is considered, then it is clear that
prima facie there is an evidence available on record to
show that the complainant had committed lurking house-
trespass.

So far as the other requirements of Section 455 of
IPC are concerned, if a person commits lurking house-
trespass, or house-breaking, having made preparation for
causing hurt, or for assaulting any person, or for
wrongfully restraining any person, or for putting any
person in fear of hurt or of assault, then it can be said that
the said person had committed an offence under Section
5 CRR No.1000/2017

455 of IPC.

As already pointed out that the wrongful restraint
means that the moment a person is restrained and he/she
is not allowed to proceed in any direction in which the
he/she has a right to proceed, then it would be a wrongful
restraint. In the present case once the applicant is alleged
to have hugged the prosecutrix against her wishes then it
can be said that he had restrained the prosecutrix
wrongfully because she was not allowed to move from the
said position and the moment she was set free by the
applicant, she went outside the house immediately this
clearly shows that she was wrongfully restrained against
her wishes. Thus, this Court is of the considered opinion
that for prima facie making out an offence under Section
455 of IPC, both the ingredients are present in the present
case.

It is next contended by the counsel for the applicant
that the applicant has been falsely implicated because the
father of the complainant had earlier made an application
expressing some suspicion against the applicant and,
therefore, it is clear that the applicant has been
maliciously and falsely implicated. This contention of the
applicant cannot be accepted at this stage. The applicant
is entitled to prove his defence in the trial. Whether a
person has been falsely implicated or not is a disputed
question of fact which cannot be decided at the stage of
framing of charge.

The Supreme Court in the case of Central Bureau
of Investigation vs. K. Narayana Rao reported in
(2012) 9 SCC 512 has held as under:-

6 CRR No.1000/2017

“14. While considering the very same
provisions i.e. framing of charges and
discharge of the accused, again in Sajjan
Kumar (2010) 9 SCC 368, this Court held
thus: (SCC pp. 375-77, paras 19-21)
“19. It is clear that at the initial stage, if
there is a strong suspicion which leads the
court to think that there is ground for
presuming that the accused has committed
an offence, then it is not open to the court
to say that there is no sufficient ground for
proceeding against the accused. The
presumption of the guilt of the accused
which is to be drawn at the initial stage is
only for the purpose of deciding prima
facie whether the court should proceed
with the trial or not. If the evidence which
the prosecution proposes to adduce proves
the guilt of the accused even if fully
accepted before it is challenged in cross-
examination or rebutted by the defence
evidence, if any, cannot show that the
accused committed the offence, then there
will be no sufficient ground for proceeding
with the trial.

20. A Magistrate enquiring into a case
under Section 209 CrPC is not to act as a
mere post office and has to come to a
conclusion whether the case before him is
fit for commitment of the accused to the
Court of Session. He is entitled to sift and
weigh the materials on record, but only for
seeing whether there is sufficient evidence
for commitment, and not whether there is
sufficient evidence for conviction. If there
is no prima facie evidence or the evidence
is totally unworthy of credit, it is the duty
of the Magistrate to discharge the accused,
on the other hand, if there is some
evidence on which the conviction may
reasonably be based, he must commit the
case. It is also clear that in exercising
jurisdiction under Section 227 CrPC, the
Magistrate should not make a roving
enquiry into the pros and cons of the
7 CRR No.1000/2017

matter and weigh the evidence as if he was
conducting a trial.

Exercise of jurisdiction under Sections
227 and 228 CrPC

21. On consideration of the authorities
about the scope of Sections 227 and 228
of the Code, the following principles
emerge:

(i) The Judge while considering the
question of framing the charges under
Section 227 CrPC has the undoubted
power to sift and weigh the evidence for
the limited purpose of finding out whether
or not a prima facie case against the
accused has been made out. The test to
determine prima facie case would depend
upon the facts of each case.

(ii) Where the materials placed before
the court disclose grave suspicion against
the accused which has not been properly
explained, the court will be fully justified in
framing a charge and proceeding with the
trial.

(iii) The court cannot act merely as a
post office or a mouthpiece of the
prosecution but has to consider the broad
probabilities of the case, the total effect of
the evidence and the documents produced
before the court, any basic infirmities, etc.
However, at this stage, there cannot be a
roving enquiry into the pros and cons of
the matter and weigh the evidence as if he
was conducting a trial.

(iv) If on the basis of the material on
record, the court could form an opinion
that the accused might have committed
offence, it can frame the charge, though
for conviction the conclusion is required to
be proved beyond reasonable doubt that
the accused has committed the offence.

(v) At the time of framing of the
charges, the probative value of the
material on record cannot be gone into but
before framing a charge the court must
8 CRR No.1000/2017

apply its judicial mind on the material
placed on record and must be satisfied
that the commission of offence by the
accused was possible.

(vi) At the stage of Sections 227 and
228, the court is required to evaluate the
material and documents on record with a
view to find out if the facts emerging
therefrom taken at their face value
disclose the existence of all the ingredients
constituting the alleged offence. For this
limited purpose, sift the evidence as it
cannot be expected even at that initial
stage to accept all that the prosecution
states as gospel truth even if it is opposed
to common sense or the broad
probabilities of the case.

(vii) If two views are possible and one
of them gives rise to suspicion only, as
distinguished from grave suspicion, the
trial Judge will be empowered to discharge
the accused and at this stage, he is not to
see whether the trial will end in conviction
or acquittal.”

The Supreme Court in the case of Amit Kapoor vs.
Ramesh Chander Anr. reported in (2012) 9 SCC 460
has held as under:-

“17. Framing of a charge is an exercise of
jurisdiction by the trial court in terms of
Section 228 of the Code, unless the
accused is discharged under Section 227
of the Code. Under both these provisions,
the court is required to consider the
“record of the case” and documents
submitted therewith and, after hearing the
parties, may either discharge the accused
or where it appears to the court and in its
opinion there is ground for presuming that
the accused has committed an offence, it
shall frame the charge. Once the facts and
ingredients of the section exists, then the
court would be right in presuming that
9 CRR No.1000/2017

there is ground to proceed against the
accused and frame the charge accordingly.

This presumption is not a presumption of
law as such. The satisfaction of the court
in relation to the existence of constituents
of an offence and the facts leading to that
offence is a sine qua non for exercise of
such jurisdiction. It may even be weaker
than a prima facie case. There is a fine
distinction between the language of
Sections 227 and 228 of the Code. Section
227 is the expression of a definite opinion
and judgment of the Court while Section
228 is tentative. Thus, to say that at the
stage of framing of charge, the Court
should form an opinion that the accused is
certainly guilty of committing an offence,
is an approach which is impermissible in
terms of Section 228 of the Code.

18. x x x x x x x

19. At the initial stage of framing of a
charge, the court is concerned not with
proof but with a strong suspicion that the
accused has committed an offence, which,
if put to trial, could prove him guilty. All
that the court has to see is that the
material on record and the facts would be
compatible with the innocence of the
accused or not. The final test of guilt is not
to be applied at that stage. We may refer
to the well-settled law laid down by this
Court in State of Bihar v. Ramesh Singh
(1977) 4 SCC 39: (SCC pp. 41-42, para 4)
“4. Under Section 226 of the Code while
opening the case for the prosecution the
Prosecutor has got to describe the charge
against the accused and state by what
evidence he proposes to prove the guilt of
the accused. Thereafter comes at the initial
stage the duty of the court to consider the
record of the case and the documents
submitted therewith and to hear the
submissions of the accused and the
prosecution in that behalf. The Judge has
10 CRR No.1000/2017

to pass thereafter an order either under
Section 227 or Section 228 of the Code. If
‘the Judge considers that there is no
sufficient ground for proceeding against
the accused, he shall discharge the
accused and record his reasons for so
doing’, as enjoined by Section 227. If, on
the other hand, ‘the Judge is of opinion
that there is ground for presuming that the
accused has committed an offence which–
… (b) is exclusively triable by the court, he
shall frame in writing a charge against the
accused’, as provided in Section 228.
Reading the two provisions together in
juxtaposition, as they have got to be, it
would be clear that at the beginning and
the initial stage of the trial the truth,
veracity and effect of the evidence which
the Prosecutor proposes to adduce are not
to be meticulously judged. Nor is any
weight to be attached to the probable
defence of the accused. It is not obligatory
for the Judge at that stage of the trial to
consider in any detail and weigh in a
sensitive balance whether the facts, if
proved, would be incompatible with the
innocence of the accused or not. The
standard of test and judgment which is to
be finally applied before recording a finding
regarding the guilt or otherwise of the
accused is not exactly to be applied at the
stage of deciding the matter under Section
227 or Section 228 of the Code. At that
stage the court is not to see whether there
is sufficient ground for conviction of the
accused or whether the trial is sure to end
in his conviction. Strong suspicion against
the accused, if the matter remains in the
region of suspicion, cannot take the place
of proof of his guilt at the conclusion of the
trial. But at the initial stage if there is a
strong suspicion which leads the court to
think that there is ground for presuming
that the accused has committed an offence
then it is not open to the court to say that
11 CRR No.1000/2017

there is no sufficient ground for proceeding
against the accused. The presumption of
the guilt of the accused which is to be
drawn at the initial stage is not in the
sense of the law governing the trial of
criminal cases in France where the accused
is presumed to be guilty unless the
contrary is proved. But it is only for the
purpose of deciding prima facie whether
the court should proceed with the trial or
not. If the evidence which the Prosecutor
proposes to adduce to prove the guilt of
the accused even if fully accepted before it
is challenged in cross-examination or
rebutted by the defence evidence, if any,
cannot show that the accused committed
the offence, then there will be no sufficient
ground for proceeding with the trial. An
exhaustive list of the circumstances to
indicate as to what will lead to one
conclusion or the other is neither possible
nor advisable. We may just illustrate the
difference of the law by one more
example. If the scales of pan as to the
guilt or innocence of the accused are
something like even at the conclusion of
the trial, then, on the theory of benefit of
doubt the case is to end in his acquittal.
But if, on the other hand, it is so at the
initial stage of making an order under
Section 227 or Section 228, then in such a
situation ordinarily and generally the order
which will have to be made will be one
under Section 228 and not under Section

227.”

20 to 26 x x x x x x x

27. Having discussed the scope of
jurisdiction under these two provisions i.e.
Section 397 and Section 482 of the Code
and the fine line of jurisdictional
distinction, now it will be appropriate for
us to enlist the principles with reference to
which the courts should exercise such
jurisdiction. However, it is not only difficult
but is inherently impossible to state with
12 CRR No.1000/2017

precision such principles. At best and upon
objective analysis of various judgments of
this Court, we are able to cull out some of
the principles to be considered for proper
exercise of jurisdiction, particularly, with
regard to quashing of charge either in
exercise of jurisdiction under Section 397
or Section 482 of the Code or together, as
the case may be:

27.1. Though there are no limits of the
powers of the Court under Section 482 of
the Code but the more the power, the
more due care and caution is to be
exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be
exercised very sparingly and with
circumspection and that too in the rarest
of rare cases.

27.2. The Court should apply the test as
to whether the uncontroverted allegations
as made from the record of the case and
the documents submitted therewith prima
facie establish the offence or not. If the
allegations are so patently absurd and
inherently improbable that no prudent
person can ever reach such a conclusion
and where the basic ingredients of a
criminal offence are not satisfied then the
Court may interfere.

27.3. The High Court should not unduly
interfere. No meticulous examination of
the evidence is needed for considering
whether the case would end in conviction
or not at the stage of framing of charge or
quashing of charge.

27.4. Where the exercise of such power is
absolutely essential to prevent patent
miscarriage of justice and for correcting
some grave error that might be committed
by the subordinate courts even in such
cases, the High Court should be loath to
interfere, at the threshold, to throttle the
13 CRR No.1000/2017

prosecution in exercise of its inherent
powers.

27.5. Where there is an express legal bar
enacted in any of the provisions of the
Code or any specific law in force to the
very initiation or institution and
continuance of such criminal proceedings,
such a bar is intended to provide specific
protection to an accused.

27.6. The Court has a duty to balance the
freedom of a person and the right of the
complainant or prosecution to investigate
and prosecute the offender.

27.7. The process of the court cannot be
permitted to be used for an oblique or
ultimate/ulterior purpose.

27.8. Where the allegations made and as
they appeared from the record and
documents annexed therewith to
predominantly give rise and constitute a
“civil wrong” with no “element of
criminality” and does not satisfy the basic
ingredients of a criminal offence, the court
may be justified in quashing the charge.
Even in such cases, the court would not
embark upon the critical analysis of the
evidence.

27.9. Another very significant caution that
the courts have to observe is that it
cannot examine the facts, evidence and
materials on record to determine whether
there is sufficient material on the basis of
which the case would end in a conviction;
the court is concerned primarily with the
allegations taken as a whole whether they
will constitute an offence and, if so, is it an
abuse of the process of court leading to
injustice.

27.10. It is neither necessary nor is the
court called upon to hold a full-fledged
enquiry or to appreciate evidence collected
by the investigating agencies to find out
whether it is a case of acquittal or
conviction.

14 CRR No.1000/2017

27.11. Where allegations give rise to a
civil claim and also amount to an offence,
merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under
Section 228 and/or under Section 482, the
Court cannot take into consideration
external materials given by an accused for
reaching the conclusion that no offence
was disclosed or that there was possibility
of his acquittal. The Court has to consider
the record and documents annexed
therewith by the prosecution.

27.13. Quashing of a charge is an
exception to the rule of continuous
prosecution. Where the offence is even
broadly satisfied, the Court should be
more inclined to permit continuation of
prosecution rather than its quashing at
that initial stage. The Court is not
expected to marshal the records with a
view to decide admissibility and reliability
of the documents or records but is an
opinion formed prima facie.

27.14. Where the charge-sheet, report
under Section 173(2) of the Code, suffers
from fundamental legal defects, the Court
may be well within its jurisdiction to frame
a charge.

27.15. Coupled with any or all of the
above, where the Court finds that it would
amount to abuse of process of the Code or
that the interest of justice favours,
otherwise it may quash the charge. The
power is to be exercised ex debito justitiae
i.e. to do real and substantial justice for
administration of which alone, the courts
exist.

(Ref. State of W.B. v. Swapan Kumar Guha
[(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR
1982 SC 949]; Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre [(1988) 1
SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v.
H.S. Chowdhary [(1992) 4 SCC 305 : 1993
15 CRR No.1000/2017

SCC (Cri) 36 : AIR 1993 SC 892]; Rupan Deol
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC
194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v.
State of U.P. [(2000) 2 SCC 636 : 2000 SCC
(Cri) 513]; Ajay Mitra v. State of M.P. [(2003)
3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods
Ltd. v. Special Judicial Magistrate [(1998) 5
SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC
128]; State of U.P. v. O.P. Sharma [(1996) 7
SCC 705 : 1996 SCC (Cri) 497]; Ganesh
Narayan Hegde v. S. Bangarappa [(1995) 4
SCC 41 : 1995 SCC (Cri) 634]; Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful
Haque [(2005) 1 SCC 122 : 2005 SCC (Cri)
283]; Medchl Chemicals Pharma (P) Ltd. v.
Biological E. Ltd. [(2000) 3 SCC 269 : 2000
SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson
Belthissor v. State of Kerala [(2009) 14 SCC
466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama
Sharma v. State of U.P. [(2009) 7 SCC 234 :
(2009) 3 SCC (Cri) 356]; Chunduru Siva Ram
Krishna v. Peddi Ravindra Babu [(2009) 11
SCC 203 : (2009) 3 SCC (Cri) 1297];
Sheonandan Paswan v. State of Bihar [(1987)
1 SCC 288 : 1987 SCC (Cri) 82]; State of
Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 :
1992 SCC (Cri) 192 : AIR 1991 SC 1260];
Lalmuni Devi v. State of Bihar [(2001) 2 SCC
17 : 2001 SCC (Cri) 275]; M. 8
MCRC.6606/2015 Krishnan v. Vijay Singh
[(2001) 8 SCC 645 : 2002 SCC (Cri) 19];
Savita v. State of Rajasthan [(2005) 12 SCC
338 : (2006) 1 SCC (Cri) 571] and S.M. Datta
v. State of Gujarat [(2001) 7 SCC 659 : 2001
SCC (Cri) 1361 : 2001 SCC (LS) 1201]).
27.16. These are the principles which
individually and preferably cumulatively
(one or more) be taken into consideration
as precepts to exercise of extraordinary
and wide plenitude and jurisdiction under
Section 482 of the Code by the High Court.
Where the factual foundation for an
offence has been laid down, the courts
should be reluctant and should not hasten
to quash the proceedings even on the
premise that one or two ingredients have
not been stated or do not appear to be
satisfied if there is substantial compliance
16 CRR No.1000/2017

with the requirements of the offence.

28. x x x x x x x

29. In the light of the above principles,
now if we examine the findings recorded
by the High Court, then it is evident that
what weighed with the High Court was that
firstly it was an abuse of the process of
court and, secondly, it was a case of civil
nature and that the facts, as stated, would
not constitute an offence under Section
306 read with Section 107 IPC.

Interestingly and as is evident from the
findings recorded by the High Court
reproduced supra that “this aspect of the
matter will get unravelled only after a full-
fledged trial”, once the High Court itself
was of the opinion that clear facts and
correctness of the allegations made can be
examined only upon full trial, where was
the need for the Court to quash the charge
under Section 306 at that stage. Framing
of charge is a kind of tentative view that
the trial court forms in terms of Section
228 which is subject to final culmination of
the proceedings.

30. We have already noticed that the
legislature in its wisdom has used the
expression “there is ground for presuming
that the accused has committed an
offence”. This has an inbuilt element of
presumption once the ingredients of an
offence with reference to the allegations
made are satisfied, the Court would not
doubt the case of the prosecution unduly
and extend its jurisdiction to quash the
charge in haste. A Bench of this Court in
State of Maharashtra v. Som Nath Thapa
(1996) 4 SCC 659 referred to the meaning
of the word “presume” while relying upon
Black’s Law Dictionary. It was defined to
mean “to believe or accept upon probable
evidence”; “to take as proved until
evidence to the contrary is forthcoming”.
In other words, the truth of the matter has
17 CRR No.1000/2017

to come out when the prosecution
evidence is led, the witnesses are cross-
examined by the defence, the incriminating
material and evidence is put to the
accused in terms of Section 313 of the
Code and then the accused is provided an
opportunity to lead defence, if any. It is
only upon completion of such steps that
the trial concludes with the court forming
its final opinion and delivering its
judgment. Merely because there was a civil
transaction between the parties would not
by itself alter the status of the allegations
constituting the criminal offence.”
Accordingly, this Court is of the considered opinion
that prima facie there is sufficient material available on
record to show a strong suspicion against the applicant of
having committed an offence under Section 455 of IPC,
therefore, the Trial Court did not commit any mistake in
framing charge under Section 455 of IPC.

The order dated 13.9.2017 passed by 10 th ASJ,
Gwalior in S.T.No.84/2017 is hereby affirmed. The revision
fails and is hereby dismissed.

(G.S. Ahluwalia)
(alok) Judge

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