Full Judgment Text
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PETITIONER:
NANI GOPAL MITRA
Vs.
RESPONDENT:
THE STATE OF BIHAR
DATE OF JUDGMENT:
15/10/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
CITATION:
1970 AIR 1636 1969 SCR (2) 411
CITATOR INFO :
R 1976 SC1471 (5)
ACT:
Prevention of Corruption Act 2 of 1947 s. 5(1), (2) and
(3)-After conviction of appellant under s. 5(2) and before
hearing of appeal by High Court, s. 5(3) repealed-If
presumption in s. 5(3) could be invoked an appeal.
S. 5A-Magistrate not giving reasons for permitting
Officer other than D.S.P. to investigate-If non-compliance
with section.
Particulars-Insufficient particulars given in the
charge-Appellant not complaining at trial or before High
Court-Effect of.
HEADNOTE:
In connection with an investigation in January 1958
relating to another case, the appellant, who was employed as
a railway guard on the Eastern Railway, was found in
possession of pecuniary resources disproportionate to his
known sources of income. As it was thought that he’ had
come in possession of these pecuniary resources by
committing acts of misconduct defined in clauses (a) ,to (d)
of s. 5(1) of the Prevention of Corruption Act 2 of 1947, on
the recommendation of the Deputy Superintendent of Police
for the area, an Inspector of Police was appointed by an
Order dated 27th February 1959 of the Magistrate, Ist Class,
Sahibganj, to investigate the case against the appellant.
The Investigating Officer, upon completion of the
investigation and after obtaining sanction of the
appropriate authority for prosecution of the appellant,
submitted a charge sheet on March 31, 1960. The Trial Court
convicted the appellant under s. 5(2) of the Act and s.411
I.P.C. In appeal, by a judgment dated September 14, 1965,.
the High Court set aside the conviction and sentence of the
appellant under s. 411 I.P.C. but confirmed his conviction
under s. 5(2) of the Act and reduced the sentence awarded by
the Trial Court.
On December 18, 1964 Parliament enacted the Anti-
Corruption Laws (Amendment) Act 40 of 1964 which repealed
sub-section (3) of s. 5 of the. Act and enlarged the scope
of criminal misconduct in s. 5 by inserting a new clause (e)
in s. 5(1) of the Act. In appeal to this Court it
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was contended on behalf of the appellant (i) that s. 5(3) of
the Act having been repealed while the appeal was pending in
the. High Court, the presumption enacted in s. 5(3) was not
available to prosecuting authorities after the repeal ’and
it was not open to the High Court to invoke the presumption
in considering the case against the appellant; the
presumption contained in s. 5(3) was a rule of procedural
law and as alterations in the form of procedure are always
retrospective in character, unless it was provided
otherwise, it was not open to the High Court to apply the
presumption in the present case; (ii) that the statutory
safeguards under s. 5A of the Act had not been complied with
as the Magistrate had not given reasons for entrusting the
investigation to a Police Officer below the rank of Deputy
Superintendent Police; and (iii) that the charge against the
appellant under s. 5(2) the Act was defective as there were
no specific particulars of misconduct as envisaged under
clauses (a) to (d) of s. 5(1) of the Act, nothing was stated
about the amounts the appellant took as bribes and the
412
persons from whom he had taken such bribes so that the,
appellant had no opportunity to rebut the presumption
raised under s. 5(3) of the Act and to prove his innocence.
HELD: Dismissing the appeal v:
(i) The High Court was right invoking the presumption
under s. 5(3) of the Act .even though it was repealed on
December 18, 1964 by the Amending Act.
Although as a general rule the amended law relating to
procedure operates retrospectively, there is another equally
important principle, which is also embodied in s. 6 of the
General Clauses Act, that a statute should not be so
construed ’as to create new disabilities or obligations or
impose new duties ties in respect of transactions which were
complete at the time the amending Act came into force. The
effect of the application of this principle is that pending
cases although instituted under the old Act but still
pending are governed by the new procedure’ under the amended
law, but whatever procedure was correctly adopted and
concluded under the old law cannot be opened again for the
purpose of applying the new procedure. In the present case,
the trial of the appellant was taken up when s. 5(3) of the
Act was still operative. The conviction of the appellant
was pronounced on March 31, 1962 long before the amending
Act was promulgated. It Was not therefore possible to accept
the contention that the conviction pronounced by the trial
Court had become illegal or in any way defective in law
because of the amendment to procedural law made on December
18, 1964. [417 G; 418 D]
James Gardner v, Edward A. Lucas, [1878] 3 A.C. 582 at
p. 603; King V, Chandra Dharrna, [1905] 2 K.B. 335; In re a
Debtor [1936] .1 Ch.237 and In re Vernazza; [1960] A.C. 965;
referred to.
(ii) Although the Magistrate’s order on the, petition
filed by the DepUty Superintendent of Police suggesting
that the Inspector of Police be empowered to investigate the
case does not state any reasons for his granting the
permission sought, the High Court had rightly concluded
’that as the Magistrate was working in the area for a period
of two years prior to the passing of the order in question
he must have known that the Deputy Superintendent of Police
could not devote his whole. time to the investigation of the
case and therefore the inspector of Police .should be
entrusted to do the investigation. [419 F]
(iii) The charge, as framed, dearly stated that the
appellant accepted gratification other than legal
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remuneration and obtained pecuniary advantage .by corrupt
,and illegal means. The absence of sufficient particulars
could not invalidate the charge though it may be a ground
for asking for. better particulars. The appellant never
complained in the trial court or the High Court that the
charge did not contain the necessary particulars, he , was.
misled on that account in his defence. In view this and the
provisions of s. 225 Cr. P.C. it could not be said that
charge was defective. [421 F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
181 of 1965.
Appeal by special leave from the judgment and order,
dated September14, 1965 of the Patna High Court in Criminal
Appeal No. 268 of 1962.
S.C. Agarwala, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave,
from the judgment of the Patna High Court dated September
14, 1965 in Criminal Appeal No. 268 of 1962 filed by the
appellant against the judgment of the Special Judge, Santhai
Pargangs, Dumka dated March 31, 1962.
In January, 1958 the appellant was employed as a Railway
Guard on the Eastern Railway and was posted at Sahibganj
Railway Station. On January 18, 1958 Hinga Lal Sinha (P.W.
47) who was in charge of squad of traveling ticket examiners
caught hold of Shambu Pada Banerji (P,.W. 54) as he found
him working as a bogus traveling ticket examiner in a train.
P.W.47 handed Shambu Pada Banerji to Md. Junaid (P.W.48) who
was a police officer in charge of Barharwa Railway outpost.
A Fard Beyan was recorded on the statement of P.W. 47 and
G.R.P. Case No. 12 (1)58 was registered against Shambu Pada
Banerji. In connection with the investigation of that case
the house of the appellant which was at a distance of 300
yards from Sahebganj Railway station was searched on
January 19, 1958 at about 3. p.m. by P.W. 56 along with
other police Officers, Md. Junaid (P.W. 48) and Dharrnadeo
Singh (P.W. 57 ). Various articles were recovered from the
house of the appellant and a search list (Ex. 5/17) was
prepared. A charge sheet was submitted in G.R.P. Case No. 12
(1)58 against the appellant and Shambu Pada Banerji. Both
of them were tried and convicted by the Assistant Sessions
Judge, Dumka by a judgment dated June 12, 1961. The
appellant flied Criminal Appeal No. 405 of 1961 against his
conviction under s. 474/466 of the Indian Penal Code. The
appeal was allowed by the High Court by its judgment dated
September 14, 1962 on the ground that there was no proof
that the appellant was in conscious possession of the
incriminating articles.
During the course of the investigation of G.R.P. Case No. 12
(1)58, the Investigating Officer (P.W. 56) found a sum of
Rs. 51,000 standing to the credit of the appellant in the
Eastern Railway Employees’ Co-operative Credit Society Ltd.,
Calcutta. He also found the appellant in possession of
National Savings Certificates of the value of Rs. 8,000.
On August 24, 1958 the Investigating Officer (P.W.56) handed
over charge of the investigation of G.R.P. Case No. 12(1)58
to P.W. 46 of Sahebganj Government Railway Police Station.
P.W. 46 completed the investigation on February 26, 1958.
Since by that time it was found that the appellant was in
possession of pecuniary resources disproportionate to his
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known sources of income it was thought that he had come in
possession of these pecuniary resources by committing
414
acts of misconduct as defined in clauses (a) to (d) of sub-
s. (1) s. 5 of the Prevention of Corruption Act, 1947 ( Act
2 or 1947 ), hereinafter referred to as the ’Act’, and since
the investigation of a case under the Act could be carried
only in accordance with the provisions of s. 5A of the Act,
under the orders of the superior officers, the case being
G.R.P. Case No. 12 (1)58 was split up in the sense that a
new case against the appellant being Sahebganj Police
Station Case No. 11(2)59 was started upon the first
information report of P.W. 46 made on February 26, 1959 to
Gokhul Jha (P.W. 45), Officer in charge of Sahebganj Police
Station. By his order dated February 27, 1959 Sri R.P.
Lakhaiyar, Magistrate First Class, Sahibganj accepted the
recommendation of the Deputy Superintendent of Police that
Inspector Madhusudan Haldar, P.W. 55 may investigate the
case. Accordingly Madhusudan Haldhar, P.W. 55 proceeded to
investigate the case and after obtaining sanction of the
appropriate authority for prosecution of the appellant
submitted a charge sheet on March 31, 1960. Cognizance was
taken and the case was transferred to Sri Banerji a
Magistrate First Class who committed the appellant and the.
two co-accused Baldeo Prasad and Mrs. Kamla Mitra to stand
trial before the Court of Session. By his judgment dated
March 31, 1962, the Special Judge, Santhai Parganas
convicted the appellant under s. 5(2) of the Act and s. 411,
Indian Penal Code. The appellant and the other co-accused
Baldeo Prasad and Mrs. Kamla Mitra were acquitted of the
charge of conspiracy under s. 120(B) read with ss. 379,
411,406 and 420, Indian Penal Code and s. 5(2) of the Act.
The Special Judge also acquitted the appellant of the charge
under s. 474/466, Indian Penal Code. The matter was taken
in appeal to the High Court which by its judgment dated
September 14, 1965 set aside the conviction and sentence of
the appellant under s. 411, Indian Penal Code and confirmed
the conviction of the appellant under s. 5(2) of the Act.
The High Court, however, reduced the sentence of 6 years
simple imprisonment and a fine of Rs. 40,000 to 2 years
imprisonment and a fine of Rs. 20,000.
Section 5 of the Act, as it stood before its amendment
by Act 40 of 1964, read as follows:
"5.(1) A public servant is said to commit the
offence of criminal misconduct in the discharge of his
duty--
(a) if he habitually accepts or obtains or
agrees to accept or attempts to obtain from
any person for himself or for any other
person, any gratification (other than legal
remuneration ) as a motive or reward such as
is mentioned in section 161 of the Indian
Penal Code, or
(b) if he habitually accepts or obtains or
agrees to accept or attempts to obtain for
himself or for
415
any other person,any valuable thing without
consideration or for a consideration which he
knows to be inadequate, from any person whom
he knows to have been, or to be or to be
likely to be concerned in any proceeding or
business transacted or about to be transacted
by him, or having any connection with the
official functions of himself or of any public
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servant to whom he is subordinate, or from any
person whom he knows to be interested in
or related to the person so concerned, or
(c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his
own use any property entrusted to him or under
his control as a public servant or allows any
other person so to do, or
(d) if he, by corrupt or illegal means or by
otherwise abusing his position as public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage.
(2) Any public servant who commits criminal
misconduct in the discharge of his duty shall be punishable
with imprisonment for a term which shall not be less than
one year but which may extend to seven years and shall also
be liable to fine:
Provided that the court may, for any special reasons
recorded in writing, impose a sentence of imprisonment of
less than one year.
(3) In any trial of an offence punishable under
subsection (2) the fact that the accused person or any
other person on his behalf is in possession, for ’which the
accused person cannot satisfactorily account, of pecuniary
resources or property disproportionate to his known sources
of income may be proved, and on such proof the court shall
presume, unless the contrary is proved, that the accused
person is guilty of criminal misconduct in the discharge of
his official duty and his conviction therefore shall not be
invalid by reason only that it is based solely on such
presumption.
(4) The provisions of this section-shah be in addition
W, and not in derogation of, any other law for the time
being in force, and nothing contained herein shall exempt
any public servant from any proceeding which
416
might, apart from this section, be instituted against
On December 18, 1964, Parliament enacted the Anti-Corruption
Laws (Amendment) Act 1964 (Act No. 40 of 1964) which
repealed subs. (3 ) of s. 5 of the Act and enlarged the
scope Of criminal misconduct in s. 5 of the Act by inserting
a new clause (e) in s. 5(1) of the Act to the following
effect:
"(e) if he or any person on his behalf is in possession
or has, at any time during the period of his office, been in
possession, for which the public servant cannot
satisfactorily account, of pecuniary resources or property
disproportionate to his known sources of income."
It was in the first place contended on behalf of the
appellant that s. 5 (3) of the Act was repealed by
Parliament while the appeal was pending in, the High Court
and the presumption enacted in s. 5 (3 ) of the Act was not
available to the prosecuting authorities after the repeal of
the sub-section on December 18, 1964. The argument was
stressed. that it was not open to the High Court to invoke
the presumption contained in s. 5( 3 ) of the Act in
considering the case against the appellant. It was also
said that the presumption contained in s. 5(3) of the Act
was a rule of procedural law and not a rule of substantive
law and alterations in the form of procedure are always.
retrospective in character unless there is some good reason
or other why they should not be. It was therefore
submitted that the judgment of the High Court was defective
in law as it applied to the present case the presumption
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contained in s. 5(3) of the Act even after its repeal. We
are unable to accept the contention put forward on behalf of
the appellant as correct. It is true that as a general rule
alterations in the, form of procedure’ are retrospective in
character unless there is some good reason or other why
they should not be. In James Gardner v. Edward A. Lucas(1),
Lord Blackburn stated:
"Now the general rule, not merely of
England and Scotland, but, I believe, of every
civilized nation, is ex. pressed in the maxim,
Noya constitutio futuris formam imponere debet
non prateritis’--prima facie, any new law that
is made affects future transactions, not past
ones. Nevertheless, it is quite clear that the
subject-matter of an Act might be such that,
though there were not any express words to
shew it, might be retrospective. For
instance, I think it is perfectly settled that
if the Legislature intended to frame a new
procedure, that
[1878] III App.Cass.582 at p.603
417
instead of proceeding in this form or that,
you should proceed in another and a different
way; clearly there bygone transactions are to
be sued for and enforced according to the new
form of procedure. Alterations in the form of
procedure are always retrospective, unless
there is some good reason or other why they
should not be. Then, again, I think that
where alterations are made in matters of
evidence, certainly upon the reason of the
thing, and I think upon the authorities
also, those are retrospective, whether civil
or criminal."
In the King v. Chandra Dharma (1), Lord Alverstone.C.J.
observed as follows:
"The rule is clearly established that,
apart from any special circumstances appearing
on the face of the statute in question,
statutes which make alterations in procedure
are retrospective. It has been held that a
statute shortening the time within which
proceedings can be taken is retrospective (The
Ydun, 1899 p. 236.), and it seems to me that
it is impossible to give ’any good reason why
a statute extending the time within which
proceedings may be taken should not also be
held to be retrospective. If the case could
have been brought within the principle that
unless the language is clear a statute ought
not to be construed so as to create new
disabilities or obligations, or impose new
duties in respect of transactions which were
complete at the time when the Act came into
force, Mr.Compton Smith would have been
entitled to succeed; but when no new
disability or obligation has been created by
the statute, but it only alters the time
within which proceedings may be taken, it may
be held to apply to offenses .completed before
the statute was passed. That is the case
here."
It is therefore clear that as a general rule the amended law
relating to procedure operates retrospectively. But there
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is another equally important principle, viz. that a statute
should not be, so construed as to create new disabilities or
obligations or impose new duties in respect of transactions
which were complete at the time the amending Act came into
force--(See In re a Debtor(1) and In re Vernazza(3).The same
principle is embodied in s. 6 of the General Clauses Act
which is to the following effect:
"6. Effect of repeal. ’Where this Act or
any Central Act or Regulation made after the
commencement of this Act, repeals any
enactment hitherto made or here-
(1) [1905] 2 K.B. 335. (2) [1936] 1 ch. 237.
(3) [1960] A.C. 965.
418
after to be made, then, unless a different intention
appears, the repeal shall not--
...........................................
(b) affect the previous operation of any
enactment so repealed or anything duly done or
suffered thereunder; or
(e) affect any investigation, legal
proceeding or remedy in respect of any such
right, privilege, obligation, liability,
penalty, forfeiture or punishment as
aforesaid;
and any such investigation, legal proceeding
or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing
Act or Regulation had not been passed."
The effect of the application of this principle is that
pending cases although instituted under the old Act but
still pending are governed by the new procedure under the
amended law, but whatever procedure was correctly adopted
and concluded under the old law cannot be opened again for
the purpose of applying the new procedure. In the present
case, the trial of the appellant was taken up by the Special
Judge, Santhai Parganas when s. 5 (3) of the Act was
still operative. The. conviction of the appellant was
pronounced on March 31, 1962 by the Special Judge, Santhai
Parganas long before the amending Act was promulgated. It
is not hence possible to accept the argument of the
appellant that the conviction pronounced by the Special
Judge, Santhai Parganas has become illegal or in any way
defective in law because of the amendment to procedural law
made on December 18, 1964. In our opinion, the High Court
was right in invoking the presumption under s. 5 (3) of
the Act even though it was repealed on December 18, 1964 by
the amending Act. We ,accordingly reject the argument of
the appellant on tiffs aspect of the case.
It was next argued on behalf of the appellant that the
statutory safeguards under s. 5A of the Act have not been
complied with and the Magistrate has not given reasons for
entrusting the investigation to a police officer below the
rank of Deputy Superintendent of Police. Section 5A of the
Act provides as follows:
"Notwithstanding anything contained in the Code of
Criminal Procedure, 1898, no police officer below the
rank---
(a) in the presidency towns of Madras
and Calcutta, of an assistant commissioner of
police,
419
(b) in the presidency town of Bombay, of
a superintendent of police, and
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(c) elsewhere, of a deputy superintendent
of police, shall investigate any offence
punishable Under section 161, section 165
or section 165A of the Indian Penal B Code
or under sub-section (2) of section 5 of this
Act, without the order of a presidency
magistrate or a magistrate of the first class,
as the case may be, or make any arrest
therefore without a warrant:
........................................
In the present case the officer-incharge of Sahibganj police
station (P.W. 45) filed a petition dated February 27, 1959
(Ex. 1) to the First Class Magistrate upon which the Deputy
Superintendent of Police made an endorsement (Ex.1/1)
suggesting that Inspector Haldhar may be empowered to
investigate the case. The order of the Magistrate is Ex.1/2
and is dated February 27, 1959.The order states: "Inspector
Sri M.S. Haldhar is’ allowed to do it". The evidence of
P.W. 11 is that he was posted at Sahebganj as a Magistrate
from 1956 and used to do the work of the Sub-divisional
Officer also in his absence. He passed the order (Ex. 1/2)
authorising M.S. Haldhar to investigate the case because the
Deputy Superintendent of Police used to remain busy with his
work and the present case needed a whole-time investigation.
It was argued on behalf of the appellant that there was
nothing in the endorsement of the Deputy Superintendent
of Police that he was busy and therefore the inquiry should
be entrusted to Sri Haldhar. But the High Court has
observed that P.W. 1 was a Magistrate working at Sahibganj
for a period of two years prior to the passing to the order
in question and he must have known that the Deputy
Superintendent of Police could not devote his whole-time to
the investigation of the case and therefore the Inspector
of Police should be entrusted to do the investigation. On
this point the High Court has come to the conclusion that
the order of the Magistrate was not mechanically passed
and the permission of the Magistrate authorising Haldhar to
investigate the case was not illegal or improper. In our
opinion Counsel on behalf of the appellant has been unable
to make good his argument on this point.
It was then said that the charge against the appellant
under s. 5(2) of the Act was defective as there were no
specific particulars of misconduct as envisaged under cls.
(a) to (d) of s. 5 (1) of the Act. It was suggested that the
charge was ’defective in as much as it deprived the
appellant of the opportunity to rebut the presumption raised
under s. 5(3) of the Act. .The charge against the appellant
reads as follows ’:
420
"First--That during the period of 1956 to 19th
January, 1958 at Sahebganj Police Station Sahebganj G.R.P.
and Sahebganj Local, District Santhai Parganas and at other
places, within and without the said district, you, being a
public servant viz. Guard of trains in the Eastern Railway
of the Railway Department and while holding the said post,
habitually accepted or obtained from persons for yourself
gratifications other than legal remuneration as a motive or
reward such as mentioned in sec. 161 of the Indian Penal
Code, habitually accepted or obtained for yourself valuable
things without consideration or for a consideration which
you know to be inadequate from persons having connection
with your official function, habitually, dishonestly and
fraudulently, misappropriated or otherwise converted for
your own use properties entrusted to you or put under your
control as a guard of trains or otherwise, and habitually by
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corrupt and illegal means, or by otherwise abusing your
position as a public servant obtained for yourself valuable
things or pecuniary advantage, with the result that during
the search of your house at Sahebganj aforesaid on 19-1-1958
and during the investigation of the Sahebganj G.R.P.S.
Case no. 12 dated 19-1-58 u/s 170 etc. I.P.C., you were
found, during the month of Jan. 1958 in possession of cash
amount to the extent of Rs. 59,000 and other properties
fully described in the appendix no. 1 attached herewith and
forming part of this charge [of Sahebganj P.S. Case No.
11(2)59], and that the said cash amount and properties are
disproportionate to your known sources of income and that
you cannot satisfactorily account the possession of the same
and that you thereby committed the offenses of criminal
misconduct, under clauses (a) to (b) of s. 5(1) of the
Prevention of Corruption Act, 1947 (Act II of 1947),
punishable under Sec. 5(2) of the said Act, within the
cognizance of this Court.
............................................
It was argued that the charge did not disclose the
amounts the appellant took as bribes and the persons from
whom he had taken such bribes and the appellant had
therefore no opportunity to prove his innocence. But, in
our view, this circumstance does not invalidate the charge,
though it may be a ground for asking for better particulars.
The charge, as flamed, clearly stated. that the appellant
accepted gratification other than legal remuneration and
obtained pecuniary advantage by corrupt and illegal. means.
The charge, no doubt, should have contained better
particulars so as to enable the appellant to prove his case.
But
421
the appellant never complained in the trial court or the
High Court that the charge did not contain the necessary
particulars. The record on the other hand disclosed that
the appellant understood the case against him and adduced
all the evidence which he wanted to place before the
Court. Section 225 of the Criminal Procedure Code says
"that no error in stating either the offence B or the
particulars required to be stated in the charge, and no
omission to state the offence or those particulars, shall be
regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it
has occasioned a failure of justice." It also appears that
the appellant never raised any objection either before the
Special Judge or in the High COurt on the score that the
charge was defective and that he was misled in his defence
on the ground that no particulars of the persons from whom
the bribes were taken were mentioned. We accordingly reject
the argument of the appellant on this point.
For the reasons expressed we hold that the judgment of the
High Court dated September 14, 1965 is correct and this
appeal must be dismissed.
R.K.P.S. Appeal dismissed.
422