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Bimal Kumar And 4 Ors. vs State Of U.P.Through Secy,Deptt … on 10 March, 2017



Case :- CRIMINAL REVISION No. – 477 of 2006

1. Bimal Kumar S/o Arun Kumar Dixit

2. Arun Kumar Dixit S/o Mukund Ram Dixit

3. Chhote S/o Arun Kumar Dixit

4. Smt. Urmila Devi W/o Arun Kumar Dixit

5. Kumari Bitto Devi D/o Arun Kumar Dixit,

All the respondents of Village Bhikhampur,

Police Station-Mitauli, District- Kheri. ……….. Revisionists


1. State of U.P. through Principal Secretary,

Department of Home Civil Secretariat,

Govt. of U.P., Lucknow.

2. Sessions Judge,

Lakhimpur Kheri.

3. Prem Prakash R/o Village Ahiri, Mazra,

Shivrajpur, Police Station Maigalganj,

District Kheri. ……………… Opposite Parties.

Counsel for Revisionist :- Vivek Manishi Shukla

Counsel for Opposite Party :- Govt.Advocate,Rajiva Dubey

Hon’ble Anil Kumar Srivastava-II,J.

1. Heard Sri Vivek Manish Shukla, learned counsel for the revisionists, Sri Rajiva Dubey, learned counsel for opposite party no.3 and learned AGA.

2. This revision has been preferred against the order dated 10.08.2006 passed by learned Sessions Judge, Lakhimpur Kheri in Criminal Miscellaneous Case No.91 of 2006; Prem Prakash vs. Bimal Kumar Ors. whereby learned Sessions Judge has re-registered the Sessions Trial No.677 of 2005.

3. This is a peculiar case. In order to properly appreciate the matter certain facts are necessary to be recorded.

4. FIR was lodged by the opposite party no.3 Prem Prakash regarding death of his daughter in her in laws house, in abnormal circumstances which was registered at Case Crime No.611 of 2004 under Sections 498A, 304B IPC and Section ¾ Dowry Prohibition Act, P.S. Mitauli, District-Lakhimpur Kheri.

5. After investigation, charge-sheet was submitted against the accused. Case was committed to the court of sessions and was registered at Sessions Trial No.677 of 2005. It appears that the charges were framed on 5.12.2005. Dates were fixed for recording the statement of the witnesses. On 14.12.2005 statement of complainant Prem Praksh and his wife Smt. Neeta Devi were recorded as P.W. 1 and P.W. 2 who did not support the prosecution version and turned hostile. Sanjeev Kumar and Anil Kumar were examined as P.W.3 and P.W.4. Thereafter, statement of formal witnesses were recorded. Genuineness of the documentary evidence of the prosecution was admitted by the accused. Statement of accused under Section 313 Cr.P.C. was recorded and the case was decided on 18.2.2006 and the accused were acquitted.

6. Thereafter, an application was moved by the opposite party no.3 i.e. complainant on 26.5.2006 stating that the persons produced before the court as P.W.1, P.W.2, P.W.3 and P.W. 4 are forged. Real persons were not produced before the Court. Judgment was obtained after playing fraud upon court which should be set aside. Retrial of the accused should be held.

7. The petitioners in the inquiry before the trial court submitted that real persons were examined as P.W.1, P.W. 2, P.W. 3 and P.W. 4 it was not the duty of the accused to produce the witnesses rather it was the duty of the prosecuting agency to produce the witnesses.

8. Learned trial court has recorded a categorical finding that the real persons were not examined as witnesses. It was further held that the accused cannot be held responsible for non-production of the real witnesses, but in this case the police of concerned police station as well as the accused are responsible for fabricating the false evidence. Learned trial court accordingly ordered that Sessions Trial No.677 of 2005 be re-registered. Fresh trial be held from the stage of recording of prosecution witnesses. Learned trial court has passed the following orders:-

“1. Let S.T. No.677/05 be re-registered. Let fresh trial of accused be held from the stage of recording of prosecution witnesses.

2. Let accused be taken into custody, warrant be prepared against them in the Sessions Trial.

3. Let a complaint be made to C.J.M. Kheri against the police personnel posted on the date of production of witnesses in this case, of the concerned police station, and accused of the case.

4. Let Sessions Trial, after re-registration, be transferred to the court of Addl. Sessions Judge-I for disposal according to law, and in the light of the observations made above. It would not be appropriate for me to decide this case now because of the findings given by me in this order.

Fixed 14.8.06 for production of accused before A.S.J.-1.

Let all records of this Misc. case be sent to the court of A.S.J.-1 and a copy of this order be placed on the file of S.T.”

9. Feeling aggrieved revision has been preferred by the accused challenging the impugned order. It is submitted by the learned counsel for the revisionist that the impugned order is bad in the eyes of law. Learned trial court has no jurisdiction to entertain the application as the trial had been concluded and the learned trial court has become functus officio to entertain the application. It is further submitted that the complainant could have moved the higher court for retrial but it was not permissible to move the same court. It is further submitted that the witnesses were produced by the prosecution. Accused had no role to play in the matter.

10. Jahira’s case is not applicable in the facts of the present case; Section 362 Cr.P.C. bars the court from reopening the case.

11. Per contra, Sri Rajiva Dubey, learned counsel for the opposite party no.3 submits that the learned trial court has rightly passed the impugned order. Fraud was played upon the Court by impersonating the witnesses. It is further submitted that when an order is obtained by playing a fraud upon the court, then court is well justified in recalling that order. Provision of Section 362 Cr.P.C. would not come into play.

12. At the very outset, this court finds that this is a peculiar case which is to be dealt with keeping in view the fact that it was a case of dowry death wherein the witnesses are well known to the accused. It is not a case where identity of the accused was doubtful or the accused were not knowing the witness. A judicial notice of the fact can be taken that now-a-days there is a tendency is being on the rise that due to one or the other reasons witnesses turns hostile. Reasons are not unknown to the system. In most of the cases, it can be found that hostility of the witness is the result of either pressure, money power, threat or such like grounds. In the case of dowry death the complainant is the father or close relative of the deceased. Accused are also the family members of the husband of the deceased. Husband of the deceased was also arrayed as one of the accused which shows that all the witnesses and the accused are knowing each other very closely. In the objections filed by the revisionist before the learned trial court against the application dated 22.5.2006, it is mentioned that the witnesses were genuine. They have been produced by the prosecution learned trial court has recorded a categorical finding that witnesses were not genuine. This finding of the learned trial court is based on cogent reasons wherein it is mentioned that the signatures of the witnesses do not tally with the signatures of the actual persons.

13. Main argument of the learned counsel for the revisionist is based upon the Section 362 Cr.P.C.. wherein it is submitted that once a judgment has been delivered, same cannot be reopened by the learned trial court.

14. Learned counsel has placed reliance upon the case of Sankatha Singh and Ors. Vs. State of Uttar Pradesh AIR 1962 Supreme Court 1208 wherein it was held that the appellate court has no power to review or restore an appeal which has been disposed of. Sessions Judge has no inherent power, it is settled legal position.

15. Reliance has been placed on Hari Singh Mann vs. Harbhajan Singh Bajwa Ors. (2001) 1 SCC 169 wherein it was held that the judgment cannot be review by the High Court Section 362 Cr.P.C. mandates that no court shall alter or review the judgment or order finally disposing of a case. Same principles was followed in State of Kerala Vs. M.M Manikantan Nair (2001) 4 SCC 752 wherein R. Annapurna vs. Ramadugu Anatha Krishna Sastry and ors. (2002) 10 Supreme Court Cases 401, Hindustan Construction Co. Ltd. and Another vs. Gopal Krishna Sengupta and Ors. (2003) 11 Supreme Court Cases 210 were referred.

16. Per contra, learned counsel for opposite party no.3 submits that the impugned judgment of acquittal was obtained by the accused, after playing fraud upon the court. It is submitted that P.W.1, P.W.2, PW.3 and P.W.4 were impersonated. Some other persons were produced in court in place of P.W.1, P.W.2, P.W.3 and P.W.4 who turned hostile and a judgment of acquittal was obtained.

17. Learned counsel has placed reliance upon the case Jahira Habibulla H.Sheikha and another vs. State of Gujrat and Ors. 2004 SCC(Cri) 999, Hamza Haji vs. State of Kerala and another 2006(7) SCC 416, Union of India and Ors. vs. Ramesh Gandhi 2012(1) SCC 467, Tribhuvan vs. State of U.P. 1992 (LCR R) Lucknow Criminal Report 165.

18. So far as legal position is concerned, law is well settled on the point that Section 362 Cr.P.C. puts embargo upon retrial of Section 362 Cr.P.C. reads as under:

“Section 362 in The Code Of Criminal Procedure, 1973

362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

19. But at the same time, it is to be seen that if the fraud is played upon the court whether the hands of the court are tight ? Whether court cannot take any action ? Whether it remains silent spectator in a matter where an order was obtained by playing a patent fraud upon the court ? A person impersonate himself and dare to appear before the court with a false identity whether he can be left open ? All these questions have to be looked into by the Court in a revision.

20. Firstly, I have to look into the meaning of fraud. In De Grey, C.J. in Rex. Vs. Duchess of Kingston 2 Smith LC 687 that

‘Fraud’ is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal”.

21. In Kerr on Fraud and Mistake, it is stated that:

“In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the realm, but in all cases alike it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.”

22. It is also clear as indicated in Kinch Vs. Walcott [1929 APPEAL CASES 482] that it would be in the power of a party to a decree vitiated by fraud to apply directly to the Court which pronounced it to vacate it. According to Kerr:

“In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient… but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.” (See the Seventh Edition, Pages 416-417)

23. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that,

“Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments”.

In para 269, it is further stated:

“Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.”

It is also stated:

“Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.”

24. In American Jurisprudence, 2nd Edition, Volume 46, para 825, it is stated:

“Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law.

Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied.”

25. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe Vs. Kanade [ILR 6 (1882) BOMBAY 148], it was held that:

“it is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud.”

26. In Lakshmi Charan Saha Vs. Nur Ali [ ILR (1911)38 Calcutta 936], it was held that:

“The jurisdiction of the Court in trying a suit [questioning the earlier decision as being vitiated by fraud, ] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree.

27. In Manindra Nath Mittra Vs. Hari Mondal [(1919) 24 Calcutta Weekly Notes 133], the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said:

“with respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words where the Court has been intentionally misled by the fraud of a party, and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence”.

28. The position was reiterated by the same High Court in Esmile Uddin Biswas and Anr. Vs. Shajoran Nessa Bewa Ors. [132 INDIAN CASES 897]. It was held that:

“it must be shown that fraud was practised in relation to the proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort upon the Court.”

29. In Nemchand Tantia Vs. Kishinchand Chellaram (India) Ltd. [(1959)63 Calcutta Weekly Notes 776], it was held that:

“a decree can be re-opened by a new action when the court passing it had been misled by fraud, but it cannot be reopened when the Court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled.”

30. It is not necessary to multiply authorities on this question since the matter has come up for consideration before Apex Court on earlier occasions. In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs Ors. [(1993) Supp. 3 SCR 422], Apex Court stated that,

“it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to the Court with a true case and prove it by true evidence. Their Lordships stated,

“The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, Bank loan dodgers, and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation”.

31. In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education Others [(2003) Supp. 3 SCR 352], Hon’ble Apex Court after quoting the relevant passage from Lazarus Estates Ltd. Vs. Beasley [(1956) 1 All ER 341] and after referring to S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs Ors[(1993) Supp. 3 SCR 422]reiterated that fraud avoids all judicial acts. In State of A.P. Anr. Vs. T. Suryachandra Rao [(2005) 6 SCC 149], this Court after referring to the earlier decisions held that suppression of a material document could also amount to a fraud on the Court. It also quoted the observations of Lord Denning in

Lazarus Estates Ltd. Vs. Beasley (supra) that,

“No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”

32. According to Story’s Equity Jurisprudence, 14th Edn., Volume 1, paragraph 263:

“Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.”

33. In Patch Vs. Ward [1867 (3) L.R. Chancery Appeals 203], Sir John Rolt, L.J. held that:

“Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance.”

34. Hon’ble Apex Court in Bhaurao Dagdu Paralkar Vs. State of Maharashtra Ors. [2005 (7) SCC 605] held that:

“Suppression oJf a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud.”

35. In Hamza Haji vs. State of Kerala and Another (2006) 7 SCC 416, the Apex Court has placed reliance upon the judgment of Full Bench of the Bombay High Court in Guddappa Chikkappa Kurbar vs. Balaji Ramji Dange AIR 1941, Bom 274 wherein it was held that; ”No court will allow itself to be used as

an instrument of fraud, and no court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud.”

36. Further in union of India vs. Ramesh Gandhi 2012 (1) Ramesh SCC 476 (Supra) it was held that in Para 25, 26, and 27 as under:

25. This Court on more than one occasion held that fraud vitiates everything including judicial acts. In S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. Ors., (1994) 1 SCC 1, this Court observed as follows in para 1:-

“1. Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

26.Again in A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors., AIR 2007 SC 1546, this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows:

38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order

cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as nonest by every Court, superior or inferior.

27. If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court, superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest.

37. In S. P. Chengalvaraya Naidu (Dead) by LRS. vs. Jagannath (Dead) by LRS and Ors. (1994)1 Supreme Court Cases 1; it was held as under:

“Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a Judgment/decree-by the first court or by the highest court- has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

38. It is abundantly, clear that the judgment obtained from the learned trial court was obtained by playing fraud upon the court. Witnesses as produced before the learned trial court were impersonated showing themselves to be a prosecution witness i.e. complainant his wife and others. If such type of fraud permitted to be played whole system of administration of justice would be jeopardize. If the acquittal was obtained by playing fraud upon the Court, it is no acquittal in the eyes of law and no sanctity or credibility can be attached and given to be so called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decision of courts that ”coram non judis and non est.’

39. In Jahira Habibulla H. Sheikha and Another vs. State of Gujarat and others 2004 Supreme Court Cases (Cri) 999, Hon’ble Apex Court has held that given direction about role of the public prosecutor it was held in para 43 as under:

“43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer was and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.”

40. It was further held in para 56:-

56. As pithily stated in Jennison v. Baker (1972) 1 All ER 997 “The law should not be seen to sit by limply, while those who defy it free, and those who seek its protection lose hope.”

Courts have to ensure that accused persons are punished and that the might authority of the State are not used to shield themselves or their men. It should ensured that they do not wield such powers which under the Constitution has to held only in trust for the public and society at large. If deficiency in investigation prosecution is visible or can be perceived by lifting the veil trying to

hide realities or covering the obvious deficiencies, courts have to deal with the same was an iron hands appropriately within the framework of law. It is as much the duty of prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice, (See Shakila Abdul Gafar Khan Vasant Raghunath Dhoble (2003) 7 SCC 749).

41. Learned trial court has rightly held that the prosecution agency i.e. concerned police of concerned police station was also in connivance with accused and produced the witnesses who has impersonated themselves as P.W.1, P.W.2, P.W. 3 and P.W.4.

42. In the case of Tribhuvan vs. State of U.P. 1992 (LCR R) Lucknow Criminal Report 165; a Division Bench of this Court has held that in Para 13 and 14.

“13. The power to recall a judgment in such a situation has been held to be available to the High Court in the case of Prem Singh vs. State, Full Bench decision of Jammu Kashmir High Court reported in (1982 Cr. LJ 297). Relying upon the decision of Madras and Calcutta High Courts it was held that where the conditions laid down by law as precedent and requisite to the hearing of the case are not observed, the court acts without jurisdition and its order is, therefore, void ab initio and the case can be reheard and that such rehearing would not be barred by Section 369 Cr.P.C. This corresponds to Section 362 of the present Code.

14. In this case a revision was also filed, decided in absence of the revisionist and the question whether such an order can be recalled and revision reheard was under consideration. The Full Bench answered accordingly in affirmative.”

43. Power of Section 362 Cr.P.C. are defined but at the same time when a fraud is played upon the Court, Court cannot became a silent spectator. Even for the sake of argument it is expected that the learned trial court was not having such power than this Court in exercise of inherent power also can quash the earlier judgment of the learned trial court which was obtained by the accused after playing fraud upon the court. It is a case where the bar of section 362 Cr.P.C. would not come into play.

44. Accordingly, I am of the view that the learned trial court has rightly passed the impugned order and issued necessary direction. Revision is devoid of any merit and is liable to be dismissed and is accordingly dismissed.

45. Learned trial court is hereby directed to decide the trial expeditiously preferably within a period of three months from the date a copy of this order is produced before the learned trial court.

Order Date :- 10.3.2017 [Justice Anil Kumar Srivastava-II.]




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