Shri
Dinesh Trivedi, M.P. & Ors Vs. Union of India & Ors [1997] INSC 318 (20
March 1997)
CJI,
SUJATA V. MANOHAR
ACT:
HEADNOTE:
Ahmadi,
CJI.
Democracy
in modern India is on the threshold of completing
fifty years of existence. Milestones such as this have traditionally been
occasions to embark upon wide- ranging assessments to survey the achievements
and failures, highpoints and pitfalls, as well as the future prospects of the
institution concerned. In our times, it is widely acknowledged that democracy in
India has not risen upto the high
expectations which heralded its conception. Many reasons have been advanced to
explain the causes for the malaise which seems to have stricken Indian
democracy in particular, and Indian society in general. The matter which we are
presently concerned with professes to identify one of the primary causes for
the present state of affairs.
The
genesis of the controversy relates to the constitution of a Committee by the
Union of India on July
9, 1993, by its order
No. S/7937/SS(ISP)/93. An examination of the brief order discloses that the
Committee was to be chaired by the Home Secretary and was to comprise the
Secretary (Revenue), the Director of the Intelligence Bureau (IB), the Director
of the Central Bureau of Intelligence (CBI), and the Joint Secretary (PP),
Ministry of Home Affairs. Later, the Special Secretary (Internal Security and
Police) was also included as a member. The erstwhile Home Secretary being Shri
N.N. Vohra, the Committee came to be popularly described as the "Vohra
Committee". The order further reveals that the Committee was set up
"to take urgent stock of all available information about the activities
and links of all Mafia organisations/elements, to enable further action".
Based on the findings of the Committee, the Union Government would then
determine whether there was a need "to establish a special organ/agency to
regularly collect information and pursue cases against such mafia
elements". To this end, the Committee was declared to be competent to
"invite senior officers of various concerned departments (Customs,
Revenue, Intelligence, etc.) to gather the required information". The
Committee was also required to submit its report within three months.
The
Report of the Vohra Committee, authored by its Chairman and containing only his
signature, was submitted on October 5, 1993.
The Report is essentially a compilation of the responses of its different
members and includes the reports of the secretary, Research & Analysis Wing
(RAW), the Director, CBI, the Director, IB, and the views of the Secretary
(Revenue). In the main Report, these various reports have been analysed and it
is noted that the growth and spread of crime syndicates in Indian society has
been pervasive. It is further observed that these criminal elements have
developed an extensive network of contacts with bureaucrats, government
functionaries at lower levels, politicians, media personalities, strategically
located persons in the non-Governmental sector and members of the judiciary;
some of these criminal syndicates have international links, sometimes with
foreign intelligence agencies. The Report recommended that an efficient Nodal
Cell be set up with powers to take stringent action against crime syndicates,
while ensuring that it would be immune from being exploited or influenced.
However, no follow-up action on the findings of the Vohra Committee Report
seems to have been initiated over the two years which immediately followed its
submission.
During
July 1995, a young political activist named Naina Sahni was murdered and one of
the persons arrested happened to be an active politician who had held important
political positions. Newspaper reports published a series of articles on the
criminalisation of politics within the country, and the growing links between
political leaders and mafia members. The attention of the masses was drawn
towards the existence of the Vohra Committee Report. It was suspected that the
contents of the Report were such that the Union Government was reluctant to
make it public. As a consequence of the resulting controversy, the Union
Government agreed to place the Report before parliament. On August 1, 1995, the Report of the Vohra Committee
was tabled in parliament, where it became the subject of a prolonged, intense
debate.
Shri
Dinesh Trivedi, M.P. (Rajya Sabha), who is the first petitioner in W.P. (Civil)
No. 664 of 1995, actively participated in the debates in parliament. On August
16, 1995, he made a written representation to the erstwhile minister for Home
Affairs demanding that the Union Government make public the reports which were
the basis for the Vohra Committee Report, and that the names of individuals who
would become identifiable as a result of studying the various background
papers. be released. He also alleged that the Union Government was trying to
suppress these background reports and, without them. the Vohra Committee Report
was "baseless".
Being
unsuccessful in securing a satisfactory response to his representation, Shri
Dinesh Trivedi, in conjunction with the public Interest Legal Support and
Research Centre (PILSARC) and the Consumer Education and Research Centre
(CERC), both of which are nongovernmental organisations, filed the present writ
petition in public interest. The following were included as respondents: the
Union of India, the Ministry of Finance, the Director, RAW, the Director, CBI
the Director, IB, and the Special Secretary to the Ministry of Home Affairs.
The
petitioners allege that a cursory analysis of the Report reveals the following
disturbing aspects:
(1)
several governmental agencies have, in their written reports, indicated that
they are aware of the vast local, national and international links of criminal
syndicates;
(2)
these links are such that they amount to a parallel system of government;
(3)
the common citizen is unprotected and must live in constant fear of his life
and property;
(4)
even the members of the judicial system have not escaped the embrace of the
mafia; and
(5)
the existing criminal justice system is unable to deal with the activities of
the mafia.
The
petitioners state that since the Report reveals such alarming trends, it is of
the utmost importance that it be made the subject of considerable scrutiny.
They allege that the document tabled in the Parliament is not the complete
report but betrays an incomplete substitute prepared hurriedly for the purpose
of meeting the demand in parliament and suppresses vita information regarding
the unholy connections between politicians, bureaucrats, criminals and
anti-social elements. They base this assertion on the statement made in the Lok
Sabha, a day prior to the publication of the Report, by the erstwhile Minister
for Parliamentary Affairs that the Report extended to about 100 pages, and the
fact that the document placed before the House numbered only 11.5 pages. In
this respect, the petitioners have also pointed out that the Report, as it was
tabled in Parliament, is not in the form of continuous paragraphs; on the
contrary, after reaching paragraph 3.7, the next recorded paragraph is numbered
as paragraph 6.1.
The
petitioners further state that the Report is itself based on a number of
reports that had been placed before it and, without this supporting material,
the Report is incomplete. Thus the genuineness of the Report was shrouded in
suspicion.
The
petitioners aver that the people at large have a right to know about the full
investigatory details of the Report. Such disclosure is stated to be essential
for the maintenance of democracy and for ensuring that transparency in government
is secured and preserved. Towards this end, the petitioners have urged us to
direct the Union Government to make public the annexures, memorials and the
written evidence that were placed before the Committee. A direction to the
Union Government to reveal the names of all bureaucrats, police officials,
Parliamentarians and Judicial personnel against whom there is tangible
evidence, to enable action to be taken in accordance with law, is also being
sought. We are also asked to direct the Union Government to present to us an
effective package of the follow-up measures taken in accordance with law, is
also being sought. We are also asked to direct the Union Government to present
to us an effective package of the follow-up measures taken or that are proposed
to be taken with regard to the Report. Lastly, a declaration to the effect that
Section 5 of the Official Secrets Act, 1923 is over-broad, unreasonable by the
formulation of a Freedom of Information policy, is also sought.
On October 13, 1996, a Division Bench of this Court,
while admitting the present writ petition, issued notice to the Union of India
and directed that an authenticated version of the Report of the Vohra Committee
be placed before it; the Union of India was also required to apprise the Court
of the follow-up measures initiated pursuant to the Report.
The
case for the Union of India has been made out in a sworn affidavit filed by
Shri K. Padmnabhaiah, the Home Secretary in the Ministry of Home Affairs and
the Successor- in-office of Shri N.N. Vohra. In the affidavit, one of the
annexures to which is an authenticated copy of the Report, the Home Secretary
has stated that the copy of the Report which was tabled in Parliament was the
genuine and authentic document. One of the other annexures to the affidavit is
a copy of the correspondence upon this aspect between Shri N.N. Vohra, the
author of the Report and the present Home Secretary. In his response, Shri N.N.
Vohra clarifies that though he had access to the reports, notes and letters furnished
by the Director, IB, Secretary (Revenue) and the Director, CBI, while making
his final Report, he did not consider it fit to include them as annexures for
the Report was meant to be a summary of discussions held and of the contents of
the documents which were already on record. As for the incorrect numbering of
the paragraphs, Shri Vohra explained that it arose as a result of a
typographical error committed by his stenographer and his own omission to
detect and correct the error.
While
apprising the Court of the follow-up measures initiated pursuant to the Vohra
Committee Report, the Home Secretary, in his affidavit, stated that the Vohra
Committee was set up with a view to facilitating the establishment of a nodal
agency to supervise and coordinate the functioning of enforcement and
intelligence agencies towards controlling the crime syndicates existing in the
country. After the Report was placed in Parliament on August 1, 1995, and as a result of the views
expressed by the Members of Parliament during the debates, the Union Government
set up a Nodal Agency on August
2, 1995, in conformity
with the recommendation of the Vohra Committee Report and was to be chaired by
the Home Secretary. The Committee also comprises the Secretary (Revenue), the
Director, IB, the Director, CBI and the Secretary (RAW). This Nodal Agency was
assigned the task of coordinating, directing and supervising the activities of
the central and State investigative agencies responsible for controlling the
growth of crime syndicates without purporting to be a substitute for them.
Thereafter, the Nodal Agency met and considered issues of inter-agency
cooperation and support. At the first meeting of the Nodal Agency, it was
decided to hold a discussion with the leaders of different political parties
with a view to evolving a code of conduct for politicians and bureaucrats which
would help expose the links developed by the mafia syndicates. In this regard,
an All party Meeting was convened by the erstwhile Home Minister on September 15, 1995 which was attended by
parliamentarians representing the major political parties. From the minutes of
this meeting, it appears that several issues of grave importance relating to
the findings of the Vohra Committee Report were discussed at length. On January 5, 1996 the Union Government issued a
further order appointing the Cabinet Secretary as the Chairman of the Nodal
Group, while retaining the Home Secretary and all the other Members in the
Nodal Agency.
The
affidavit further points out that under our constitutional scheme, the
maintenance of law and order is essentially the responsibility of the State
Governments. The role of Central Intelligence Agencies, such as the CBI, the IB
and of the Revenue Department is, therefore, limited cases, consisting of cases
transferred by the State Governments to the CBI, cases in Union Territories, and the cases being investigated by Central Revenue
Agencies. Much of the investigatory work in the country falls within the
purview of CID and Intelligence Agencies within State Governments. The task of
the Nodal Group is, therefore, limited to ensuring that the investigative
efforts of all these separate agencies are synchronized towards their smooth
functioning.
During
the hearing of this matter, we asked the learned counsel appearing for the
parties before us to put forth their suggestions in respect of the options open
to this Court. Shri Ram Jethmalani, learned senior counsel appearing for the
petitioners contended that the plea of the Home Secretary that 95% of crimes are
within the purview of State Governments is an attempt to dilute the finding of
the Vohra Committee Report. He averred that the Vohra Committee Report
essentially addresses itself to those cases which, fall, not within the Entry
of "Public Order", but, instead, with those cases involving
narco-terrorist elements and smuggling of arms and ammunitions into the
country, which are properly and wholly within the domain of the executive power
of the Union. Shri Jethmalani urged us to direct that the details of the
reports and events mentioned in the Vohra Committee Report be fully and
completely disclosed. In his view, setting up a Nodal Agency would serve no
purpose for it would be as prone to failure as the agencies it sought to
supervise had proven themselves to be. Instead. he urged us to set up a
Committee consisting of two retired Judges of the Supreme Court with sufficient
experience of criminal matters, to probe into the disclosures that would be
made consequent to our directions; further legal action could be pursued by
this Court once such a Committee had submitted its complete report. A similar
suggestion, which was been canvassed before us, if for the establishment of a
Special Authority, headed by a retired Supreme Court Judge, to get matters
involving the aforesaid nexus to be investigated by an independent agency which
would the empowered to exercise all the statutory powers of investigation under
the Code of Criminal Procedure. Such a Special Authority would be able to
launch prosecutions against politicians, bureaucrats, police officers and
criminals on the basis of evidence collected in the investigations, for
offences under the Indian Penal code and other penal laws under the prevention
of corruption Act. Thereafter, it was suggested, Special Courts, could be
designated to expeditiously try all such cases.
We may
first deal with the assertion based on the petitioners right to freedom of
information. It has been contended before us that the citizens of India have a
right to be informed not only of the contents of the report, but also of the
details of the various reports, notes, letters and other forms of written
evidence that was placed for the consideration of the Vohra Committee.
In
modern constitutional democracies, it is axiomatic that citizens have a right
to know about the affairs of the Government which, having been elected by them,
seeks to formulate sound policies of governance aimed at their welfare.
However, like all other rights, even this right has recognised limitations; it
is, by no means, absolute. This Court has had many an opportunity to express
itself upon this issue. In the case of State of U.P. v. Raj Narain, (1975) 4 SCC 428, Mathew, J. eloquently
expressed this proposition in the following words:
"In
a government of responsibility like ours, where all the agents of the public
must be responsible for their conduct, there can be but few secrets. The people
of this country have a right to know every public act, everything that is done
in a public way, by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing. The right to know,
which is derived from the concept of freedom of speech, though not absolute, is
a factor which should make one wary, when secrecy is claimed for transactions
which can, at any rate, have no repercussion on public security. To cover with
veil of secrecy, the common routine business, is not in the interest of the
public. Such secrecy can seldom be legitimately desired. It is generally
desired for the purpose of parties and politics or personal self-interest or
bureaucratic routine. The responsibility of officials to explain and to justify
their acts is the chief safeguard against oppression and corruption."
(Emphasis added) Implicit in this assertion is the proposition that in
transaction which have serious repercussions on public security, secrecy can
legitimately be claimed because it would then be in the public interest that
such matters are not publicly disclosed or disseminated.
The
case of S.P. Gupta v. Union of India, 1981 SCC Supp. 87, decided by a
seven-Judge Constitution Bench of this Court, is generally considered as having
broken new ground and having added a fresh, liberal dimension to the need for
increased disclosure in matters relating to public affairs. In that case, the
consensus that emerged amongst the Judges was that in regard to the functioning
of government, disclosure of information must be the ordinary rule while
secrecy must be an exception, justifiable only when it is demanded by the
requirement of public interest.
The
Court held that the disclosure of documents relating to the affairs of State
involves two competing dimensions of public interest, namely, the right of the
citizen to obtain disclosure of information, which competes with the right of
the State to protect the information relating to its crucial affairs. It was
further held that, in deciding whether or not to disclose the contents of a
particular document, a Judge must balance the competing interests and make his
final decision depending upon the particular facts involved in each individual
case. It is important to note that it was conceded that there are certain
classes of documents which are necessarily required to be protected, e.g.
Cabinet Minutes, documents concerning the national safety, documents which
affect diplomatic relations or relate to some State secrets of the highest
importance, and the like in respect of which the Court would ordinarily uphold
Government's claim of privilege. However, even these documents have to be
tested against the basic guiding principle which is that wherever it is clearly
contrary to the public interest for a document to be disclosed, then it is in
law immune from disclosure. (Paras 73 and 74 at pp. 284-286).
What
then is the test? To ensure the continued participation of the people in the
democratic process, they must kept informed of the vital decisions taken by the
Government and the basis thereof. Democracy, therefore, expects openness and
openness is a concomitant of a free society. Sunlight is the best disinfectant.
But it is equally important to be alive to the dangers that lie ahead.
It is
important to realise that undue popular pressure brought to bear on
decision-makers is Government can have frightening side-effects. If every
action taken by the political or executive functionary is transformed into a
public controversy and made subject to an enquiry to soothe popular sentiments,
it will undoubtedly have a chilling effect on the independence of the
decision-maker who may find it safer not to take any decision. It will paralyse
the entire system and bring it to a grinding halt. So we have two conflicting
situations almost enigmatic and we think the answer is to maintain a fine
balance which would serve public interest.
This then
is the test which we must now apply to the facts of the present case. Having
examined the copy of the Report which has been placed before us, the
allegations regarding its authenticity, the explanation forwarded in this
behalf by the Home Secretary and the copy of the communication with Shri N.N.
Vohra in this respect, we find that there is nothing on record to raise a doubt
that the Report, as tabled in parliament and as presented to us, is not
genuine, authentic and unabridged. We are of the view that the erstwhile
Minister of Parliamentary Affairs, in making the statement that the Report was
100 pages long, may have been either misinformed or misled. That apart, there
is no other ground for doubting the genuineness of the Report.
Since
it has been tabled in Parliament, it now enjoys the status of a public
document. We will, however, have to consider whether the supporting material
placed before the Vohra Committee can be disclosed for the benefit of the
general public.
The
supporting material consists of reports, notes and letters furnished by the
other members of the Vohra Committee to its Chairman who made them the basis of
his report. Before taking a decision on this aspect, we must record the
perceptions of the author of the Report as to the manner in which it was to be
treated. We have already noted Shri Vohra's statement that he had conceived of
his Report to serve only as a summary of the discussions and reports before the
Committee. In addition, the following paragraphs extracted from the concluding
portion of the Report are also relevant for this purpose:
"15.1
In the normal course, this Report would have been drafted by the Member
Secretary and finalised by the Committee. Considering the nature of the issues
involved, I did not consider it desirable to burden the Members of the
Committee with any further involvement beyond the views expressed by them.
Accordingly,
I decided to personally dictate this Report.
(Note
that the Report is not signed by the other Committee-members.)
15.2 I
have prepared only three copies of this Report. One copy each is being
submitted to MOS (IS) and HM, the third copy being retained by me. After HM has
perused this Report, I request him to consider discussing further action with
Finance Minister, MOS (IS) and myself. The emerging approach could thereafter
be got approved from Prime Minister before being implemented. At that stage
other concerned officers would be taken into confidence." (Emphasis and
comments added) It is, therefore, evident that Shri N.N Vohra had himself
drafted and signed the Report in the belief that it would be read by a select
few high-ranking officials who would then take necessary action. It is doubtful
whether the candour exhibited and the liberal mentioning of intelligence
reports would have been forthcoming if he had not felt assured of complete
confidentiality. Indeed, much of the information contained in the Report, which
has now become publicly available might well have adversely affected the
various intelligence agencies involved.
We are
reluctant to direct the disclosure of the supporting material which consists of
information gathered from the Heads of the various Intelligence Agencies to the
general public. To so direct would cause great harm to the agencies involved
and to the conditions of assured secrecy and confidentiality under which they
function. Furthermore, it must be noted that not all of the information
collected and recorded in intelligence reports is substantiated by hard
evidence. Often on the basis of unverified suspicion names are thrown by people
to save their own skins.
Intelligence
Agents are not obliged to adhere to the principles of natural justice before
they compile reports of possible suspects; quite frequently, individuals are
shortlisted based purely on the investigators' hunches and surmises or on
account of the past background of the suspects. The disclosure of these reports
would lead to a situation where public servants and elected representative who,
though entirely innocent, are compelled by virtue of their offices to associate
with individuals whose culpability is beyond doubt, will also find themselves
mired in suspicion. Such a situation would, in the long run, prove to be
disastrous for the effective functioning of government. This is because it
would make every governmental functionary overcautious about taking the
simplest of decisions.
We may
now cite an illustration to give shape to the afore-mentioned apprehension. In
the entire Report, apart from the reference to mafia gangs of Bombay, only one person has been
specifically named as being a prominent beneficiary of the nexus which is the
focus of the Report. The individual concerned is a certain Iqbal Mirchi whose
name is mentioned as having been disclosed by the Director, CBI.
Shri
Jethmalani has objected to this lone disclosure by stating that when the
government sought to pursue extradition proceedings against Iqbal Mirchi in London, it could not produce even "an
iota of evidence" against him. We think that this assertion by the learned
Senior Counsel for the petitioners themselves adds great support to our
apprehension that the full scale disclosure of these Intelligence reports will,
in the absence of properly conducted inquiries, lead to the harassment and
victimisation of individuals who might well be entirely innocent of my blame.
Alternatively,
such full scale disclosures would undoubtedly act to the advantage of those
individuals who are actually the central figures in the nexus mentioned in the
Report. Warned in advance of their complicity being suspected, they would
initiate rearguard measures to exonerate themselves.
We
are, therefore, of the view that the disclosure of the supporting material
placed before the Vohra Committee to the public at large would, instead of
aiding the interest of the public, be severely and detrimentally injurious to
it.
In
that view of the matter, we think there is no necessity for us to express
ourselves on the constitutionality of Section 5 of the Official Secrets Act,
1923.
We may
now turn our focus to the Report and the follow- up measures that need to be
implemented. The Report reveals several alarming and deeply disturbing trends
that are prevalent in our present society. For some time now, it has been
generally perceived that the nexus between politicians, bureaucrats and
criminal elements in our society has been on the rise, the adverse affects of
which are increasingly being felt on various aspects of social life in India.
Indeed,
the situation has worsened to such an extent that the president of our country
felt constrained to make references to the phenomenon in his Addresses to the
Nation on the eve of the Republic Day in 1996 as well as in 1997.
The
matter is, therefore, one that needs to be handled with extreme care and
circumspection.
The
Report, while recording the widespread development of crime syndicates within
the country, points out that under the existing system, there is no provision
by which the various intelligence agencies can coordinate with each other in
properly utilising the information relating to the links developed by crime
syndicates which comes their way.
Sharing
of such information is rare, and much of it is discarded without being put to
any productive use. The Report, therefore, recommended the setting up of a
Nodal Agency to which all existing intelligence and enforcement agencies
(irrespective of the Department under which they are located) shall promptly
pass on any information relating to crime syndicates which they may come
across. The Report also contains recommendations as to the manner in which the
Nodal Agency should be set up while simultaneously emphasising the need for
ensuring that the information available with the Nodal set-up is used strictly
and purely for taking stringent action against the crime syndicates, without offering
any scope whatsoever of its being exploited for political gain. The need for
complete confidentiality was also emphasised.
The
Nodal Agency set-up by the Union Government pursuant to the Debates in
Parliament upon the Report, conforms to the recommendations contained in the
Report.
Later,
presumably to add greater weight to the body, the Cabinet Secretary was
included in the Nodal Agency as its Chairman. However, as we have already
noted, the Nodal Agency suffers from certain limitations. Being only a
supervisory body, without having clearly delineated powers, it cannot
effectively control the pace and thrust of investigative efforts.
We are
of the view that the grave nature of the issue demands deft handling by an
all-powerful body which will have the means and the power to fully secure its
foundational ends. The Nodal Agency, in its present form, comprises senior
bureaucrats of the highest level. While it is suited to coordinate an exchange
of information between different investigating agencies, its composition is
such that it may not be viewed by the public as completely independent or
immune from pressures of every kind. It is, therefore, not suitable for
pursuing an investigation of this kind and taking it to the state of
prosecution where may be nexus between the persons under investigation and
powerful persons such as those referred to in the Vohra Committee Report. In
view of the seriousness of the charges involved and the clout wielded by those
who are likely to become the focus of investigation, it is necessary that the
body which is entrusted with the task of following the investigation through to
the stage of prosecution, be such that it is capable of enjoying the complete
trust and confidence of the people. Moreover, in view of the suspicion that
those involved may well be individuals who occupy, or have occupied, high
positions in Government, it is necessary that the body be able to obtain the
sanctions which are necessarily required before any prosecutions can be
launched. In the case of public servants, sanctions are required, for instance,
under Section 197 of the Code of criminal procedure and under Section 6 of the
prevention of corruption Act, 1947. The Nodal Agency, in its present form, may
not command the confidence of the people in this regard;
this
is a serious handicap for, in such matters, people's confidence is of the
essence. An institution like the Ombudsman or a Lokpal, properly set up, could
command such confidence and respect.
We
are, therefore, of the view that the matter needs to be addressed by a body
which function with the highest degree of independence, being completely free
from every conceivable influence and pressure. Such a body must possess the
necessary powers to be able to direct investigation of all charges thoroughly
before it decides, if at all, to launch prosecutions. To this end the
facilities and services of trained investigators with distinguished records and
impeccable credentials must be made available to it. The Report, the supporting
material upon which it is based and the unequivocal assistance of all existing
intelligence agencies must be forwarded to this body. In time if the need is so
felt, the body may even consider the feasibility of designating Special Courts
to try those who are identified by it, which proposal may then be considered by
the Union Government. To this end, and in the absence of any existing suitable
institution or till its creation, we recommend that a high level committee be
appointed by the president of India on the advice or the Prime Minister, and
after consultation with the Speaker of the Lok Sabha. The Committee shall
monitor investigations involving the kind of nexus referred to in the Vohra
Committee Report and carry out the objectives described earlier.
Such a
direction by us would not be without precedent.
In
Balaji Raghavan v. Union of India, (1996) 1 SCC 361, a Constitution Bench of
this Court had recommended the establishment of a high level Committee to
examine the guidelines relating to the conferment of the National Awards. (See
paragraph) 33 of the judgment of Ahmadi, CJI speaking for the majority).
We
dispose of the Writ petition in the above terms with no order as to costs.
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