Full Judgment Text
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 396 OF 2016
[Arising out of SLP [Crl.] No.3584 of 2011]
Amal Kumar Jha … Appellant
Vs.
State of Chhatisgarh & Anr. … Respondents
J U D G M E N T
ARUN MISHRA, J.
Leave granted.
The appeal arises out of the order dated 21.1.2011 passed by the
High Court of Chhatisgarh at Bilaspur, thereby affirming the order dated
29.6.2002 passed by the Sessions Judge and Judicial Magistrate First
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Class, Dharamjaigarh, rejecting the application filed by the accused
appellant for discharge on the ground of requirement of sanction to
prosecute under section 197(1) Cr.P.C.
As per the prosecution case, the appellant was in-charge of
Patthalgaon Hospital, District Raigad where on 1.1.1995 L.T.D. operation
of Runiabai was conducted by Dr. A.M. Gupta. Thereafter she was sent
home. As Runiabai vomited Dr. A.M. Gupta was approached. He sent one
Aklu Ram to administer some treatment. However on 2.2.1995 she was
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brought to the Primary Health Centre, Patthalgaon where she was
admitted and died at 2 p.m. Her post mortem was conducted. After 25
days, First Information Report was lodged and ultimately Police filed
chargesheet under section 304-A IPC on 16.10.1996 in the court of
Judicial Magistrate First Class, Dharamjaigarh, as against appellant A.K.
Jha, Dr. A.M. Gupta and Aklu Ram. Charges under section 304-A were
framed as against Dr. A.M. Gupta and the appellant. Both of them filed
an application for discharge under section 197 Cr.PC on the ground that
sanction to prosecute was required and they could not be prosecuted
without previous sanction. Vide order dated 27.6.2001 passed by the
Judicial Magistrate First Class, the application filed by Dr. A.M. Garg
had been allowed. However, the application filed by the appellant was
rejected on the ground that he was in-charge of the Primary Health
Centre and he failed to provide Government jeep for shifting the patient
Mrs. Runiabai to District Hospital, Raigad whereas the appellant himself
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travelled in the jeep to attend an official monthly meeting at Raigad
which was District Headquarters. The Primary Health Centre did not
have ambulance. Thus, negligence was attributed to the appellant for not
providing the said vehicle for shifting the patient to District Hospital,
Raigad. A revision was preferred against the rejection of prayer and
thereafter a petition was filed under section 482 Cr.P.C. before the High
Court, the same having been dismissed, the appellant is before us.
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It was vehemently contended by learned counsel appearing on
behalf of the appellant that the allegations constituted failure to provide
official vehicle for shifting the patient to District Hospital, Raigad. As it
was an act in discharge of official duty, as such the sanction to prosecute
was necessary. Whereas the application filed by Dr. A.M. Gupta had been
allowed, the prayer made by the appellant has been illegally rejected.
Learned counsel appearing on behalf of the State supported the order and
contended that it was negligence on behalf of the appellant in not
providing official vehicle to the patient due to which she could not be
shifted to District Hospital, Raigad and died. Thus, sanction was not
required in the instant case.
It is apparent from the facts of the instant case that the allegation
against the appellant is of omission in discharge of official duty in not
providing Government vehicle for shifting the patient from Primary
Health Centre to District Hospital, Raigad; whereas he himself travelled
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in the vehicle in question for attending the monthly official meeting at the
District Headquarters. In our considered opinion, it was an act or
omission in discharge of the official duty. The sanction to prosecute was
necessary. In this case, the accused was acting in discharge of his official
duty when he refused to provide the official vehicle. The refusal is
directly and reasonably connected with his official duty, thus sanction is
required for prosecution as provided under section 197(1) Cr.PC. It is not
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disputed that no ambulance was provided to the Primary Health Centre.
The question arises whether omission to provide the official jeep which
was not meant for patients, would constitute an omission in discharge of
his duty. Though public servant is not entitled to indulge in criminal
activities in the course of his duty but the act in question had relation to
discharge of official duty of the accused. It was clearly connected to the
performance of his official duty. When such is the case, sanction is
required. This Court in Shreekantiah Ramayya Munipalli v. The State of
Bombay [1955 (1) SCR 1177] has observed thus :
“Now it is obvious that if section 197 of the Code of
Criminal Procedure is construed too narrowly it can never be
applied, for of course it is no part of an official’s duty to
commit an offence and never can be. But it is not the duty
we have to examine so much as the act, because an official
act can be performed in the discharge of official duty as well
as in dereliction of it. The section has content and its
language must be given meaning. What it says is –
“when any public servant ….. is accused of any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty……”
We have therefore first to concentrate on the word ‘offence’.
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Now an offence seldom consists of a single act. It is
usually composed of several elements and, as a rule, a whole
series of acts must be proved before it can be established. In
the present case, the elements alleged against the second
accused are, first, that there was an “entrustment” and/or
“dominion”; second, that the entrustment and/or dominion
was “in his capacity as a public servant”; third, that there
was a “disposal”; and fourth, that the disposal was
“dishonest”. Now it is evident that the entrustment and/or
dominion here were in an official capacity, and it is equally
evident that there could in this case be no disposal, lawful or
otherwise, save by an act done or purporting to be done in an
official capacity. Therefore, the act complained of, namely
the disposal, could not have been done in any other way. If
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it was innocent, it was an official act; if dishonest, it was the
dishonest doing of an official act, but in either event the act
was official because the second accused could not dispose of
the goods save by the doing of an official act, namely
officially permitting their disposal; and that he did. He
actually permitted their release and purported to do it in an
official capacity, and apart from the fact that he did not
pretend to act privately, there was no other way in which he
could have done it. Therefore, whatever the intention or
motive behind the act may have been, the physical part of it
remained unaltered, so if it was official in the one case it
was equally official in the other, and the only difference
would lie in the intention with which it was done: in the one
event, it would be done in the discharge of an official duty
and in the other, in the purported discharge of it.
The act of abetment alleged against him stands on the
same footing, for his part in the abetment was to permit the
disposal of the goods by the doing of an official act and thus
“willfully suffer” another person to use them dishonestly:
section 405 of the Indian Penal Code. In both cases, the
“offence” in his case would be incomplete without proving
the official act.
We therefore hold that section 197 of the Code of
Criminal Procedure applies and that sanction was necessary,
and as there was none the trial is vitiated from the start. We
therefore quash the proceedings against the second accused
as also his conviction and sentence.”
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This Court in Matajog Dobey v. H.C. Bhari [1955 (2) SCR 925]
has also considered when sanction is necessary. This Court has laid down
thus :
“Is the need for sanction to be considered as soon as the
complaint is lodged and on the allegations therein
contained? At first sight, it seems as though there is some
support for this view in Hori Ram’s case and also in Sarjoo
Prasad v. The King-Emperor (1945) F.C.R. 227. Sulaiman,
J. says that as the prohibition is against the institution itself,
its applicability must be judged in the first instance at the
earliest stage of institution. Varadachariar, J. also states that
the question must be determined with reference to the nature
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of the allegations made against the public servant in the
criminal proceeding. But a careful perusal of the later parts
of their judgments shows that they did not intent to lay down
any such proposition. Sulaiman, J. refers (at page 179) to
the prosecution case as disclosed by the complaint or the
police report and he winds up the discussion in these words:
“Of course, if the case as put forward fails or the defence
establishes that the act purported to be done is in execution
of duty, the proceedings will have to be dropped and the
complaint dismissed on that ground”. The other learned
Judge also states at page 185, “At this stage we have only to
see whether the case alleged against the appellant or sought
to be proved against him relates to acts done or purporting to
be done by him in the execution of his duty”. It must be so.
The question may arise at any stage of the proceedings. The
complaint may not disclose that the act constituting the
offence was done or purported to be done in the discharge of
official duty; but facts subsequently coming to light on a
police or judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity
for sanction. Whether sanction is necessary or not may have
to be determined from stage to stage. The necessity may
reveal itself in the course of the progress of the case.”
In Bhappa Singh v. Ram Pal Singh & Ors . 1981 (Supp) SCC 12
this Court considered the grant of protection to an officer for official act
done in good faith thus :
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“6. In view of the circumstances mentioned in the last
paragraph, there is little room for doubt that the Customs
party was not out to commit dacoity either in the jewellery
shop or the chaubara , that they also committed no trespass
into either of those places, but that the purpose of the raid
was to find out if any illegal activity was being carried on
therein. The presence of two licensed Gold-smiths in the
chaubara speaks volumes in that behalf. It may further be
taken for granted that the Customs party was manhandled
before they themselves resorted to violence, because there
was no reason for them to open fire unless they were resisted
in the carrying out of the raid peacefully.
7. Even though what we have just stated is a general prima
facie impression that we have formed at this stage on the
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materials available to us at present, it may not be possible to
come to a conclusive finding about the falsity or otherwise
of the complaint. But then we think that it would amount to
giving a go-by to Section 108 of the Gold (Control) Act, if
cases of this type are allowed to be pursued to their logical
conclusion, i.e., to that of conviction or acquittal. In this
view of the matter we do not feel inclined to upset the
impugned order, even though perhaps the matter may have
required further evidence before quashing of the complaint
could be held to be fully justified. The appeal is accordingly
dismissed.”
In State of Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC
339, this Court has considered the meaning of the ‘official act’ thus :
“6. Such being the nature of the provision the question is
how should the expression, ‘any offence alleged to have
been committed by him while acting or purporting to act in
the discharge of his official duty’, be understood? What does
it mean? ‘Official’ according to dictionary, means pertaining
to an office. And official act or official duty means an act or
duty done by an officer in his official capacity. In S.B. Saha
v. M.S. Kochar (1979) 4 SCC 177 it was held: (SCC pp.
184-85, para 17)
“The words ‘any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty’ employed in Section
197(1) of the Code, are capable of a narrow as well as
a wide interpretation. If these words are construed too
narrowly, the section will be rendered altogether
sterile, for, ‘it is no part of an official duty to commit
an offence, and never can be’. In the wider sense,
these words will take under their umbrella every act
constituting an offence, committed in the course of the
same transaction in which the official duty is
performed or purports to be performed. The right
approach to the import of these words lies between
these two extremes. While on the one hand, it is not
every offence committed by a public servant while
engaged in the performance of his official duty,
which is entitled to the protection of Section 197(1),
an act constituting an offence, directly and
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reasonably connected with his official duty will
require sanction for prosecution under the said
provision .”
Use of the expression, ‘official duty’ implies that the act or
omission must have been done by the public servant in
course of his service and that it should have been in
discharge of his duty. The section does not extend its
protective cover to every act or omission done by a public
servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant
in discharge of official duty. In P. Arulswami v. State of
Madras (1967) 1 SCR 201 this Court after reviewing the
authorities right from the days of Federal Court and Privy
Council held:
“… It is not therefore every offence committed by a
public servant that requires sanction for prosecution
under Section 197(1) of the Criminal Procedure Code;
nor even every act done by him while he is actually
engaged in the performance of his official duties; but
if the act complained of is directly concerned with his
official duties so that, if questioned, it could be
claimed to have been done by virtue of the office, then
sanction would be necessary. It is the quality of the act
that is important and if it falls within the scope and
range of his official duties the protection
contemplated by Section 197 of the Criminal
Procedure Code will be attracted. An offence may be
entirely unconnected with the official duty as such or
it may be committed within the scope of the official
duty. Where it is unconnected with the official duty
there can be no protection. It is only when it is either
within the scope of the official duty or in excess of it
that the protection is claimable.”
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It has been widened further by extending protection to
even those acts or omissions which are done in purported
exercise of official duty . That is under the colour of office.
Official duty therefore implies that the act or omission must
have been done by the public servant in course of his service
and such act or omission must have been performed as part
of duty which further must have been official in nature. The
section has, thus, to be construed strictly, while determining
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its applicability to any act or omission in course of service.
Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission
has been found to have been committed by a public
servant in discharge of his duty then it must be given
liberal and wide construction so far its official nature is
concerned . For instance a public servant is not entitled to
indulge in criminal activities. To that extent the section
has to be construed narrowly and in a restricted manner .
But once it is established that act or omission was done by
the public servant while discharging his duty then the scope
of its being official should be construed so as to advance the
objective of the section in favour of the public servant.
Otherwise the entire purpose of affording protection to a
public servant without sanction shall stand frustrated. For
instance a police officer in discharge of duty may have to
use force which may be an offence for the prosecution of
which the sanction may be necessary. But if the same officer
commits an act in course of service but not in discharge of
his duty then the bar under Section 197 of the Code is not
attracted. To what extent an act or omission performed by a
public servant in discharge of his duty can be deemed to be
official was explained by this Court in Matajog Dubey v.
H.C. Bhari AIR 1956 SC 44 thus:
“[T]he offence alleged to have been committed (by
the accused) must have something to do, or must be
related in some manner with the discharge of official
duty … there must be a reasonable connection
between the act and the discharge of official duty;
the act must bear such relation to the duty that the
accused could lay a reasonable (claim) but not a
pretended or fanciful claim, that he did it in the
course of the performance of his duty .”
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(emphasis supplied)
If on facts, therefore, it is prima facie found that the act or
omission for which the accused was charged had reasonable
connection with discharge of his duty then it must be held to
be official to which applicability of Section 197 of the Code
cannot be disputed.”
In State of H.P. v. M.P. Gupta 2004 (2) SCC 349 this Court in
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regard to official duty has laid down thus :
“11. Such being the nature of the provision, the question is
how should the expression, “any offence alleged to have
been committed by him while acting or purporting to act in
the discharge of his official duty”, be understood? What
does it mean? “Official” according to the dictionary, means
pertaining to an office, and official act or official duty means
an act or duty done by an officer in his official capacity.”
In State of Orissa & Ors. v. Ganesh Chandra Jew 2004 (8) SCC 40
this Court has laid down that protection under section 197 would be
available only when the act done by the public servant is reasonably
connected with the discharge of his official duty. This Court has laid
down thus :
“7. The protection given under Section 197 is to protect
responsible public servants against the institution of possibly
vexatious criminal proceedings for offences alleged to have
been committed by them while they are acting or purporting
to act as public servants. The policy of the legislature is to
afford adequate protection to public servants to ensure that
they are not prosecuted for anything done by them in the
discharge of their official duties without reasonable cause,
and if sanction is granted, to confer on the Government, if
they choose to exercise it, complete control of the
prosecution. This protection has certain limits and is
available only when the alleged act done by the public
servant is reasonably connected with the discharge of his
official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted in
excess of his duty, but there is a reasonable connection
between the act and the performance of the official duty, the
excess will not be a sufficient ground to deprive the public
servant of the protection. The question is not as to the nature
of the offence such as whether the alleged offence contained
an element necessarily dependent upon the offender being a
public servant, but whether it was committed by a public
servant acting or purporting to act as such in the discharge of
his official capacity. Before Section 197 can be invoked, it
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must be shown that the official concerned was accused of an
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duties. It
is not the duty which requires examination so much as the
act, because the official act can be performed both in the
discharge of the official duty as well as in dereliction of it.
The act must fall within the scope and range of the official
duties of the public servant concerned. It is the quality of the
act which is important and the protection of this section is
available if the act falls within the scope and range of his
official duty. There cannot be any universal rule to
determine whether there is a reasonable connection between
the act done and the official duty, nor is it possible to lay
down any such rule. One safe and sure test in this regard
would be to consider if the omission or neglect on the part of
the public servant to commit the act complained of could
have made him answerable for a charge of dereliction of his
official duty. If the answer to this question is in the
affirmative, it may be said that such act was committed by
the public servant while acting in the discharge of his
official duty and there was every connection with the act
complained of and the official duty of the public servant.
This aspect makes it clear that the concept of Section 197
does not get immediately attracted on institution of the
complaint case.”
In K. Kalimuthu v. State by DSP 2005 (4) SCC 512 this Court has
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observed that official duty implies that an act or omission must have been
done by the public servant within the scope and range of his official duty
for protection. This Court has laid down thus :
“12. If on facts, therefore, it is prima facie found that the
act or omission for which the accused was charged had
reasonable connection with discharge of his duty then it
must be held to be official to which applicability of Section
197 of the Code cannot be disputed.
x x x x x
15. The question relating to the need of sanction under
Section 197 of the Code is not necessarily to be considered
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as soon as the complaint is lodged and on the allegations
contained therein. This question may arise at any stage of
the proceeding. The question whether sanction is necessary
or not may have to be determined from stage to stage.
Further, in cases where offences under the Act are
concerned, the effect of Section 197, dealing with the
question of prejudice has also to be noted.”
In Manorama Tiwari & Ors. v. Surendra Nath Rai 2016 (1) SCC
594, it was held that the appellants were discharging public duties while
performing surgery in a Government hospital, hence prosecution was not
maintainable without sanction from the State Government.
In State of Madhya Pradesh v. Sheetla Sahai & Ors. 2009 (8) SCC
617, this Court has laid down thus :
“ 59. For the purpose of attracting the provisions of
Section 197 of the Code of Criminal Procedure, it is not
necessary that they must act in their official capacity but
even where public servants purport to act in their official
capacity, the same would attract the provisions of Section
197 of the Code of Criminal Procedure. It was so held by
this Court in Sankaran Moitra v. Sadhna Das (2006) 4 SCC
584. The question came up for consideration before this
Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44
wherein it was held: (AIR pp. 48-49, para 17)
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“ 17 . Slightly differing tests have been laid down in
the decided cases to ascertain the scope and the
meaning of the relevant words occurring in Section
197 of the Code; ‘any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty’. But the difference
is only in language and not in substance.
The offence alleged to have been committed must have
something to do, or must be related in some manner, with
the discharge of official duty. No question of sanction can
arise under Section 197, unless the act complained of is an
offence; the only point to determine is whether it was
committed in the discharge of official duty. There must be a
reasonable connection between the act and the official duty.
It does not matter even if the act exceeds what is strictly
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necessary for the discharge of the duty, as this question will
arise only at a later stage when the trial proceeds on the
merits.
What we must find out is whether the act and the official
duty are so interrelated that one can postulate reasonably
that it was done by the accused in the performance of the
official duty, though possibly in excess of the needs and
requirements of the situation. In Hori Ram Singh v. Crown
1939 FCR 159 Sulaiman, J. observes:
‘The section cannot be confined to only such acts as
are done by a public servant directly in pursuance of
his public office, though in excess of the duty or under
a mistaken belief as to the existence of such duty. Nor
is it necessary to go to the length of saying that the act
constituting the offence should be so inseparably
connected with the official duty as to form part and
parcel of the same transaction.’
The interpretation that found favour with Varadachariar, J. in
the same case is stated by him in these terms at p. 56:
‘There must be something in the nature of the act
complained of that attaches it to the official character
of the person doing it.’
In affirming this view, the Judicial Committee of the Privy
Council observed in Gill case : AIR 1948 PC 128 (IA pp.
59-60)
‘A public servant can only be said to act or to purport
to act in the discharge of his official duty, if his act is
such as to lie within the scope of his official duty. …
The test may well be whether the public servant, if
challenged, can reasonably claim that, what he does,
he does in virtue of his office.’
Hori Ram case 1939 FCR 159 is referred to with
approval in the later case of Lieutenant Hector
Thomas Huntley v. King Emperor 1944 FCR 262 but
the test laid down that it must be established that the
act complained of was an ‘official’ act appears to us
unduly to narrow down the scope of the protection
afforded by Section 197 of the Criminal Procedure
Code as defined and understood in the earlier case.
The decision in Albert West Meads v. R. AIR 1948 PC
156 does not carry us any further; it adopts the
reasoning in Gill case AIR 1948 PC 128.”
60. The said principle has been reiterated by this Court in B.
Saha v. M.S. Kochar (1979) 4 SCC 177 in the following
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terms: (SCC pp. 184-85, paras 17-18)
“ 17 . The words ‘any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty’ employed in Section
197(1) of the Code, are capable of a narrow as well as
a wide interpretation. If these words are construed too
narrowly, the section will be rendered altogether
sterile, for, ‘it is no part of an official duty to commit
an offence, and never can be’. In the wider sense,
these words will take under their umbrella every act
constituting an offence, committed in the course of the
same transaction in which the official duty is
performed or purports to be performed. The right
approach to the import of these words lies between
these two extremes. While on the one hand, it is not
every offence committed by a public servant while
engaged in the performance of his official duty, which
is entitled to the protection of Section 197(1), an act
constituting an offence, directly and reasonably
connected with his official duty will require sanction
for prosecution under the said provision. As pointed
out by Ramaswami, J. in Baijnath v. State of M.P. AIR
1966 SC 220 : (AIR p. 227, para 16)
‘ 16 . … It is the quality of the act that is
important, and if it falls within the scope and
range of his official duties the protection
contemplated by Section 197 of the Criminal
Procedure Code will be attracted’.
18 . In sum, the sine qua non for the applicability of
this section is that the offence charged, be it one of
commission or omission, must be one which has been
committed by the public servant either in his official
capacity or under colour of the office held by him.”
(emphasis in original)”
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In view of the aforesaid discussion, it is clear that the omission
complained of due to which offence is stated to have been committed,
was intrinsically connected with discharge of official duty of the
appellant, as such the protection under section 197 Cr.PC from
prosecution without sanction of the competent authority, is available to
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the appellant. Thus, he could not have been prosecuted without sanction.
It would be for the competent authority to consider the question of grant
of sanction in accordance with law. In case sanction is granted only then
the appellant can be prosecuted and not otherwise. Resultantly, the
impugned orders are set aside, the appeal is allowed.
……..……………………….J.
(V. Gopala Gowda)
New Delhi; ……………………………..J.
April 26, 2016. (Arun Mishra)
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