In The Matter of Madhu Limaye &
Ors Vs. [1968] INSC 320 (18 December 1968)
18/12/1968 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
CITATION: 1969 AIR 1014 1969 SCR (3) 154
ACT:
Constitution of India, Art. 22,(1)-Necessity
of informing person arrested grounds for his arrest-Arrest illegal if Article
not complied with-Order of remand by magistrate cannot cure constitutional
infirmity.
HEADNOTE:
The petitioners were arrested on November 6,
1968 at a railway station in Bihar. According to the Sub-Inspector's report
recorded in the general diary they had taken out a procession in defiance of a
prohibitory order under s. 144 Cr. P.C. and had been arrested under s. 151 Cr.
P.C. It was stated that report was being submitted "under sections 107 and
117 of the Criminal Procedure Code and under s. 188 of the Indian Penal
Code." On November 6 itself the first petitioner sent a petition under
Art. 32 of the Constitution in the form of a letter mentioning that he and his
companions had been arrested but no grounds of 'arrest had been communicated to
them and they had been merely told that the arrests had been made "under
sections which were bailable". It was prayed that a writ of Habeas Corpus
be issued. On November 7, 1968 a similar petition was sent by the petitioners
from Jail. The additional fact given was that the arrested persons had been
produced before the subDivisional Magistrate who bad on their refusal to
furnish bail remanded them to custody up to November 20, 1968. Rule nisi was
issued by this Court to the State authorities to produce the petitioners before
the Court on November 25, 1968. On November 19, 1968 a first information report
was recorded in which it was alleged that the petitioners had on November 6,
1968 committed offences under ss. 188 and 143 of the Penal Code. In the return,
before this Court it was explained on behalf of the State that the
officer-in-charge while forwarding the arrested persons on November 6, 1968,
had by mistake omitted to mention s. 143 I.P.C. which was a cognizable offence.
It was urged that the order of remand passed by the Magistrate could not be
said to be illegal merely because of the omission of s. 143 I.P.C. in the order
sheet when the police report clearly made out a case under that section. It was
not claimed that the grounds of arrest had been supplied to the petitioners.
HELD : (i) When the arrests were effected by
the SubInspector on November 6, 1968, the offences for which the arrests were
made were not stated to be cognizable. In the various reports etc. the only
offence alleged was one under s. 188 I.P.C. which is non-cognizable. There was
force in the suggestion of the petitioners that the first information report
came to be recorded formally on November 19, 1968 only because the matter had
been brought to this Court by way of a petition under Art. 32 and a further
petition had been moved in the :High Court under Art. 226. It was not proved
that the arrest had been made at the direction of a Magistrate who was present.
It was somewhat surprising that no affidavit of the said Magistrate had been
filed. It would be legitimate to conclude that the arrest of the petitioners
was effected by the police officers concerned without any specific orders or
directions of a Magistrate on November 6, 1968 for the offences and proceedings
mentioned before in the various reports made prior to November 19, 1968. 1159
D-E; 160 B-161 B] 155 (ii) The two requirements of cl. (1) of Art. 22 are meant
to afford the earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority
and, also, to know exactly what the accusation against him is so that he can
exercise the second right, namely, of consulting a legal practitioner of his
choice and to be defended by him.
Whenever the Article is not complied with the
petitioner would be entitled to a writ of Habeas Corp s directing his release.
[162 E-163 C] In the present case the return filed by the State did not contain
any information as to when and by whom the petitioners were informed of the
grounds of their -arrest.
It had not been contended on behalf of the
State that the circumstances were such that the arrested persons trust have
known the, general nature of the alleged offences for which they had been
arrested. The petitioners were therefore entitled to be released on this ground
alone. [ 163 F] (iii) Once it was shown that the arrests made by the police
officers were illegal it was necessary for the State to establish that at the
stage of remand the Magistrate directed detention in jail custody after
applying his mind to all relevant matters. This the State had failed to do.
The remand orders were patently routine and
appeared to have been made mechanically. if the detention of the petitioners
in, custody could not continue after their arrest because of the violation of
Art. 22(1) of the Constitution', they were entitled to be released forthwith.
The orders of remand were not such as would cure the constitutional
infirmities. [1163 G-164 B] Christie & Anr. v. Leachinsky, [1947] 1 All,
E.R. 567, Ram Narayan Singh v. State of Delhi & Ors., A.I.R. 1953 S.C.
277, applied.
ORIGINAL JURISDICTION : Writ Petition No. 355
of 1968.
Petition under Art. 32 of the Constitution of
India for writ in the nature of habeas corpus.
The petitioners Nos. 1 and 2 appeared in
person.
M. C. Chagla and D. Goburdhun, for the State
of Bihar.
The Judgment of the Court was delivered by
Grover, J. Madhu Limaye, Member of Lok Sabha, and several other persons were
arrested on November 6, 1968 at Lakhisarai Railway Station near Monghyr. On the
same date Madhu Limaye addressed a petition in the form of a letter to this
Court under Art. 32 of the Constitution mentioning that he along with his
companions had been arrested but had not been communicated the reasons or the
grounds for arrest. It was stated that the arrested persons had been merely
told that the arrests had been made "under sections which were
bailable". It was prayed that a writ of Habeas Corpus be issued for
restoring liberty as the arrest and detention were illegal. On November 7,
1968, a similar petition was sent from Monghyr jail. The additional fact given
was that the arrested persons had been produced before the SubDivisional
Magistrate who had offered to 1 56 release them on bail but they had refused to
furnish bail.
The Magistrate had, thereupon, remanded them
to custody up to November 20, 1968. This Court issued a rule nisi to the, Government
of Bihar and Supdt. District Jail, Moghyr to produce Madhu Limaye and others
whose names were given in the order dated November 12, 1968 on November 25,
1968.
The State of Bihar filed a return but on
November 25, 1968 the Court directed the Advocate General of Bihar to produce
the relevant documents in connection with the recording of the first
information report, the investigation made, the report to the Magistrate and
order sheet, etc. The hearing was adjourned to December 2, 1968.
It is apparent from the documents and papers
placed before us that on November 2, 1968, the Sub-Divisional Magistrate
Monghyr issued an order under s. 144, Cr.P.C. prohibiting assemblage of five or
more persons within the limits of 100 yards of Kiul and Lakhisarai Railway
Stations for a period of one week from November 5, 1968 to November 12, 1968.
According to the report submitted by the
Sub-Inspector incharge of the Government Railway Police Station Kiul to the
Sub-Divisional Magistrate, Sadar, Madhu Limaye and others had defied the
prohibitory orders issued under s. 144 Cr.P.C., by holding and addressing a
public meeting at the railway ground at Lakhisarai Railway Station between 4.30
p.m. and 6.30 p.m. on November 5, 1968 and some out of them had exhorted the
public in provocative language to offer satyagraha at the Railway Station and to
disrupt the railway communications as also to obstruct the normal functioning
of the railway offices at Lakhisarai. It was prayed that their prosecution be
ordered under s. 188. Indian Penal Code. Dharamraj Singh Sub-Inspector entered
a report (Sanha) No. 109 on November 6, 1968, in the general diary. It was
stated inter alia that Madhu Limaye and others took out a procession at 3
O'Clock with a flag in violation of the order made under s. 144, Cr.P.C. They
had entered the Railway Station for launching a strike shunting slogans. This
group had been followed by several other groups of persons the last being the
8th group (the names in each group were mentioned). All these persons had been
arrested under s.
151, Cr.P.C. and had been sent to the Sub-Divisional
Magistrate, Sadar, Monghyr. These incidents happened in the presence of Shri
Mathur, Magistrate 1st Class, Monghyr, Shri B. N. Singh, Railway Magistrate
Kiul etc. It was stated that the report was being submitted " under
sections 107 and 117 of the Criminal Procedure Code and under S. 188 of the
Indian Penal Code". Admittedly no first information report was formally
registered on that date which was done on November 19, 1968 at 23.30 hrs. In
this report 1 5 7 in which the date of occurrence is mentioned 'as November 6,
1968 it was stated that the accused persons had entered the Railway Station by
illegally forming a mob disobeying the order under s. 144, Cr.P.C. to disturb
the normal functioning of the railways and had committed offences under s. 143,
I.P.C. and s. 122 of the Railways Act.
The State of Bihar has filed a return
according to which the circumstances in which the prohibitory order was
promulgated under s. 144, Cr.P.C., are set out. It was stated that from the
leaflets circulated by the Lakhisarai unit of the Samyukta Socialist Party on
November 4, 1968, it appeared that the party had decided to hold a public
meeting on November 5, 1968 and to launch satyagraha at Lakhisarai on November
6, under the leadership of Madhu Limaye. On November 5, Madhu Limaye and others
held a public meeting of about 400 persons at the railway ground in defiance of
the order under s. 144 Cr.P.C. and exhorted the public to hold satyagraha at
Lakhisarai Railway Station on November 6 etc.
A report was submitted by the
officer-in-charge of the Kiul Government Railway Police Station on November 6,
on which the Sub-Divisional Magistrate, Sadar, made an order on November 11,
1968 directing show cause notices to be issued to Madhu Limaye and others as to
why action under s. 188, Indian Penal Code, should not be taken against them.
On November 6, 1968, a procession of about 200 persons of Samyukta Socialist
Party led by Madhu Limaye and others came to the main gate of the platform of
Lakhisarai Railway Station where a Magistrate, Inspector of Railway Police and
Officer-in-charge of Kiul Government Railway Police Station were present. When
these persons, in spite of the warning, forcibly entered the platform and
violated the order under s. 144, Cr.P.C., the Magistrate on duty, Shri K. B.
Mathur, directed the police officers present to arrest them. Madhu Limaye and
others were arrested and a case was instituted against them. They were produced
before the Sub-Divisional Magistrate who, on November 6, remanded them to jail
custody till November 20, as they refused to furnish bail bonds. On November 6,
another report was submitted by 'the officer-incharge, Kiul Government Railway
Police Station for the incidents which happened on November 6, 1968. A case had
been started on that report and show cause notices had been issued for November
20, 1968 as to why action should not be taken under s. 188, I.P.C. It was
claimed that Madhu Limaye and others had committed offences under s. 188 and
under s. 143 Penal Code (which is cognizable) by violating the orders made
under s. 144 Cr.P.C., and by forming unlawful assembly.
It was explained that while forwarding the
arrested persons the Officer-in-charge, my mistake, omitted to mention s.
143. It 158 was asserted that the order of
remand passed by the SubDivisional Magistrate could not be said to be illegal
merely because of omission of s. 143, Indian Penal Code, in the order sheet
when the police report clearly made out a case under that section. It was
affirmed that Madhu Limaye and others had not been arrested on November 6,
while they were participating in a peaceful satyagraha or that the officerin-charge
Kiul purported to arrest all these persons only under ss. 151, 107 and 117 of
the Cr.P.C.
The annexures attached to the return filed by
the State and the documents contained in the original records which were sent
for have revealed the following state of affairs. On November 6, the
officer-in-charge, Government Railway Police Station Kiul made what is called
report (annexure-D) under s. 107(3), Cr.P.C. This contained a prayer that Madhu
Limaye and 115 others, vide list attached, should be bound over under s. 107
with an order to furnish ad-interim bonds. It was stated under column No. 5
(brief history of the case) that as their acts on November 6, 1968 between
09.15 hrs.
and 16.30 hrs. on the Lakhisarai Railway
Station were likely to lead to breach of peace 1.51, Cr.P.C. The same police
officer addressed a letter to the Sub-Divisional Magistrate, Sadar, to the
following effect :
"I am forwarding herewith the following
accused persons (list attached herewith) in custody as they have been arrested
u/s 151/107/117(3), Cr.P.C. They may kindly be remanded in jail Hazat for a
fortnight by which time report u/s 107/117(3) Cr.P.C. and 188 T.P.C. be routed
through proper channel." As stated in the return two show cause notices
were issued by the Sub-Divisional Magistrate Shri P. P. N. Sahi on November 11,
1968 relating to the incidents on November 5, 1968 and the following day. Madhu
Limaye and others were asked to show cause why action should not be taken
against them under s. 188. On November 19, 1968 another order was made by a
different Sub-Divisional Magistrate Shri K. K. Pathak saying that a petition
had been filed on behalf of the State in which it was alleged that the accused
persons had committed offences tinder ss. 143/448 I.P.C., by forming unlawful
assembly with the common object of committing criminal trespass in violation of
the duly promulgated order under s. 144 Cr.P.C. It was prayed that these
persons be summoned for being tried for offences under the aforesaid sections.
A show cause notice appears to have been issued on or about November 20, 1968.
The remand orders which were passed on November 6 and 20, 1968 159 were made on
the basis that the accused persons had been "arrested and forwarded under
custody under ss. 151/107/117 Cr-P.C. by Sub-Inspector, Government Railway
Police Station Kiul".
Madhu Limaye, who has addressed arguments in
person', has raised, inter alia, the following main contentions :
1. The arrests on November 6, 1968 were
illegal inasmuch as they had been effected by Police Officers for offences
which were noncognizable.
2. There, was a violation of the mandatory
provisions of Art. 22(1) of the Constitution.
3. The orders for remand were bad and
vitiated.
4. The arrests were effected for extraneous
considerations and were actuated by mala fides.
The entire sequence of events from November
5, 1968 onwards is somewhat unusual and has certain features which have not
been explained on behalf of the State. In the first place when the arrests were
effected by the Sub-Inspector Incharge of Government Railway Police Station on
November 6, 1968 the offences for which the arrests were made were not stated to
be cognizable. In the various reports etc., to which reference has been made
the only offence alleged was one under s. 188 I.P.C. which is non-cognizable.
On November 6, 1968 apart from the allegation of commission of offences under
s. 188 the police reports disclose a variety of proceedings which were sought
to be taken. Section 151 in all likelihood was invoked for effecting the
arrests but proceedings were initiated under s. 107 which appears in Chapter
VIII of the Cr.P.C. Under that section the Magistrate can require a person
about whom information has been received that he is likely to commit a breach
of peace, to show cause why he should not be ordered to execute a bond for a
period not exceeding one year, for keeping peace.
Under s. 117, which was also invoked, the
Magistrate makes an enquiry as to the truth of an information. But proceedings
under S. 107 have to follow the procedure laid down in Chapter VIII and arrest
cannot be effected unless a Magistrate issues a warrant for that purpose under
s. 114.
Section 151 which has been repeatedly
referred to in various documents is meant for arresting without a warrant and
without orders from a Magistrate if a police officer knows of a design to
commit any cognizable offence and if it appears to him that the commission of
such offence cannot be otherwise prevented.
There can be no manner of doubt, and this
position has hardly been controverted by Mr. Chagla for the State, that in all
the documents which were prepared before November 19, 16 0 1968 there was no
mention of an offence under S. 143 I.P.C.
having been committed by Madhu Limaye and
other persons whowere arrested on November 6, 1968. It is obviously for that
reason that no formal first information report was recorded on November 6, 1968
which would have necessarily been done if the police officers effecting arrests
had thought of S.
143, Indian Penal Code which is a cognizable
offence. No explanation has been furnished on behalf of the State as to why the
information which was recorded in the general diary on November 6, was not
recorded as an information in cognizable cases under s. 154 of the Cr.P. Code.
There is,force in the suggestion of Madhu Limaye that the first information
report came to be recorded formally on November 19, 1968 only because the
matter had been brought to this Court by way of a petition under Art. 32 of the
Constitution and after a rule nisi had been issued and a petition under Art.
226 had been filed in the Patna High Court. The authorities then realised that
they had been completely oblivious of the true position that arrests could not
have been effected for a non-cognizable offence made punishable under s. 188,
Indian Penal Code or for taking proceedings under s. 107, Cr.P.C. Under S. 151
Cr.P.Code the police officer could have arrested without a warrant but Mr.
Chagla has not sought justification for the arrests under that provision. He
has pointed out that a prohibitory order had been issued under s. 144 which had
been defied by Madhu Limaye and the other persons and therefore an offence had
been committed under S. 143 I.P.C. The mere omission, he says, to mention a
section cannot affect the legality or validity of the proceedings. Mr. Chagla
has also laid a great deal of emphasis on the statement in the return that when
Madhu Limaye and others were arrested they had violated the orders under S.
144, Cr.P.C. and the Magistrate on duty Shri K. B. Mathur directed the police
officers present to arrest them. The return is supported by an affidavit of
Shri S. C. Prasad, Magistrate 1st Class, Monghyr according to whom the contents
of para 6 in which this statement occurs were true to his knowledge. It is
somewhat surprising that the affidavit of Shri K. B. Mathur has not been filed
who would have deposed to all that happened in his presence and the reasons for
ordering the arrests. It is most unusual and extraordinary that in spite of
arrests having been ordered by the Magistrate there is not one word in any of
the papers or documents which have been produced relating to this fact. The
least that was expected was that there would have been some mention of the
order in the detailed statement entered in General Diary by the Sub-Inspector
in-charge Kiul Police Station on November 6, on the basis of which a formal
first information report was registered on November 19, 1968. There, however,
only the pre161 sence of certain officers and other persons including Shri
Mathur is noted. It would be legitimate to conclude that the arrest of Madhu
Limaye and his companions was effected by the police officers concerned without
any specific orders or directions of a Magistrate on November 6, 1968 for the
offences and the proceedings mentioned 'before in the various reports made
prior to November 19, 1968.
The submission of Madhu Limaye on the second
point has hardly been effectively met on behalf of the State. Art.
22(1) provides that no person who is arrested
shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult and be
defended by a legal practitioner of his choice. Madhu Limaye had, in his
petitions addressed to this Court, made a positive assertion that he and his
companions had not been informed of the grounds for their arrest. In the return
filed by the State this assertion has neither been controverted nor has
anything been stated with reference to it, It appears that the authorities
wanted to invoke all kinds of provisions like ss. 151, 107/117 of the Cr.P.C.
apart from s. 188 of the Indian Penal Code. Since no arrest could be effected
for an offence under s. 188 by the police officers without proper order these
officers may have been naturally reluctant to comply with the mandatory
requirements of Art. 22(1) by giving the necessary information. At any rate,
whatever the reasons, it has not been explained even during the course of
arguments before us why the arrested persons were not told the reasons for
their arrest or of the offences for which they had been taken into custody.
Art. 22(1) embodies a rule which has always
been regarded as vital and fundamental for safeguarding personal liberty in all
legal systems where the Rule of Law prevails. For example, the 6th Amendment to
the Constitution of the United States of America contains similar provisions
and so does Art. XXXIV of the Japanese Constitution of 1946. In England
whenever an arrest is made without a warrant, the arrested person has a right
to be informed not only that he is being arrested but also of the reasons or
grounds for the arrest. The House of Lords in Christie & Another v.
Leachinsky(1) went into the origin and
development of this rule. In the words of Viscount Simon if a policeman who
entertained a reasonable suspicion that X had committed a felony were at
liberty to arrest him and march him off to a police station without giving any
explanation of why he was doing this, the prima facie right of personal liberty
would be gravely infringed. Viscount Simon laid down several proposi(1) [1947]
1 AII E.L.R.567.
162 tions which were not meant to be
exhaustive. For our purposes we may refer to the first and the third :
"1. If a policeman arrests without
warrant upon reasonable suspicion of felony, or of other crime of a sort which
does not require a warrant, he must in ordinary circumstances inform the person
arrested of the true ground of arrest. He is not entitled to keep the reason to
himself or to give a reason which is not the true reason. in other words, a
'citizen is entitled to know on what charge or on suspicion of what crime he is
seized.
2.............................
3. The requirement that the person arrested
should be informed of the reason why he is seized naturally does not exist if
the circumstances are such that he must know the general nature of the alleged
offence for which he is detained." Lord Simonds gave an illustration of
the circumstances where the accused must know why he is being arrested:
"There is no need to explain the reasons
of arrest if the arrested man is caught redhanded and the crime is patent to
high Heaven." The two requirements of clause (1) of Art. 22 are meant to
afford the earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority
and, also, to know exactly what the accusation against him is so that he can exercise
the second right, namely, of consulting a legal practitioner of his choice and
to be defended by him.
Clause (2) of Art. 22 provides 'the next and
most material safeguard that the arrested person must be produced before a
Magistrate within 24 hours of such arrest so that an independent authority
exercising judicial powers may without delay apply its mind to his case. The
Criminal Procedure Code contains analogous provisions in ss. 60 and 340 but our
Constitution makers were anxious to make these safeguards an integral part of
fundamental rights. That is what Dr. B.
-R. Ambedkar said while moving, for insertion
of Art. 15A (as numbered in the draft Bill of the Constitution) which
corresponded to present Art. 22 :
"Article 15A merely lifts from the
provisions of the Criminal Procedure Code two of the most fundamental
principles which every civilised country follows as principles of international
justice. It is quite true that these two provisions contained in clause 1) and
clause 163 (2)are already to be found in the Criminal Procedure Code and
thereby probably it might be said that we are really not making any very
fundamental change. But we are, as I contend, making a fundamental change because
what we are doing by the introduction of Article 15A is to put a limitation
upon the authority both of Parliament as well as of the Provincial Legislature
not to abrogate these two provisions, because they are now introduced in our
Constitution itself." As stated in Ram Narayan Singh v. State of Delhi
& Ors. this Court has often reiterated that those who feel called upon to
deprive other persons of liberty in the discharge of what they conceive to be
their duty must, strictly and scrupulously, observe the forms and rules of law.
Whenever that is not done the petitioner would be entitled to a writ of Habeas
Corpus directing his release.
It remains to be seen whether any proper
cause has been shown in the return for declining the prayer of Madhu Limaye and
other arrested persons for releasing them on the ground that there was
non-compliance-with the provisions of Art.
22(1) of the Constitution. In Ram Narayan
Singh's case(1) it was laid down that the Court must have regard to the
legality or otherwise of the detention at the time of the return. In the
present case the return dated November 20, 1968 was filed before the date of
the first hearing after the rule nisi had been issued. The return, as already
observed, does not contain any information as to when and by whom Madhu Limaye
and other arrested persons were informed of the grounds for their arrest. It
has not been contended on behalf of the State that the circumstances were such
that the arrested persons must have known the general nature of the alleged offences
for which they had been arrested', vide proposition No. 3 in Christie &
Another v. Leachinsky (2).
Nor has it been suggested that the show cause
notices which were issued on November 11, 1968 satisfied the constitutional
requirement. Madhu Limaye and others are, therefore, entitled to be released on
this ground alone.
Once it is shown that the arrests made by the
police officers were illegal, it was necessary for the State to establish that
at the stage -of remand the Magistrate directed detention in jail custody after
applying his mind to all relevant matters. This the State has failed to do.
The remand orders are patently routine and
appear to have been made mechanically. All that Mr. Chagla has said is that if
the arrested person wanted to challenge their legality the High Court should
have been moved (1) A.I.R. 1953 S.C. 277.
(2) [1947] All F.I.R. 567, 164 under
appropriate, provisions of the Criminal Procedure Code. But it must be
remembered that Madhu Limaye and others have, by moving this Court under Art.
32 of the Constitution, complained of detention or confinement in jail without
compliance with the constitutional and legal provisions. If their detention in
custody could not continue after their arrest because of the violation of Art.
22(1) of the Constitution they were entitled
to be released forthwith. The orders of remand are not such as would cure the
constitutional infirmities. This disposes of the third contention of Madhu
Limaye.
We have been pressed to decide the question
of mala fides which is the fourth contention of Madhu Limayes Normally such
matters are not gone into by this Court in these proceedings and can be more
appropriately agitated in such other legal action as he may be advised to
institute or take.
We would like to make it clear that we have
ordered the release of Madhu Limaye and the other arrested persons with regard
to whom rule nisi was issued on the sole ground of violation of the provisions
of Art. 22(1) of the Constitution. We desire to express no opinion on the
legality or illegality of the arrests made on November 6, 1968 of these persons
with reference to the first point, namely, that the police officer purported to
have effected the arrests for the offences under s. 188. Indian Penal Code, and
under S. 151 as also in respect of proceedings under s. 107 of the Cr.P.C., as
these matters are sub judice.
We may also proceed to add that any
expression of opinion or observation in these proceedings shall not affect the
course of the enquiry or trial of the arrested persons concerning the
occurrences on November 5 and 6, 1960 which may be pending in the courts in the
State of Bihar and such proceedings shall be disposed of in accordance with
law.
Madhu Limaye and other arrested persons have
already been ordered to be released by this Court and no further directions are
necessary in the matter of their being set at liberty.
G.C. Petitions allowed.
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