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L.S. Raju Vs. Government of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 358 of 1950-51
Judge
Reported inAIR1951Kant106; AIR1951Mys106
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 173 and 173(4)
AppellantL.S. Raju
RespondentGovernment of Mysore
Appellant AdvocateH.V. Krishna Rao, Adv.
Respondent AdvocateM.K. Srinivasa Iyengar, Adv. for ;Adv. General
DispositionRevision dismissed
Excerpt:
criminal - cognizance - section 178 of criminal procedure code, 1898 - section 178 lays down that police report under that section must be in form prescribed by government setting forth names of parties, nature of information, names of persons who appear to be acquainted with circumstances of case and stating whether accused (if arrested) has been forwarded in custody of has been released on bond - there is therefore nothing wrong in taking cognizance of offence when police report merely contains facts which constitute offence and not evidence with which prosecution propose to prove case. - karnataka transparency in publicprocurements act, 1999.[k.a. no. 29/2000]. section 9: [anand byareddy, j]tender for establishing state-wide area network - constitution of tenders accepting authority.....mallappa, j. 1. this is a revn. petn. against the order in c. c. no. 2519 of 50-51 on the file of the city mag. bangalore, refusing to furnish the petnr. with a copy of the entries in col. no. 6 of the charge-sheet placed against him.2. the point has come up before this ct. for consideration several times, & if it has come up before a bench for consideration, it is because after the amendment of section 173, cr. p. c., the opinions expressed in some unreported cases on this aspect of the matter are not uniform & it is desirable to lay down a definite view on this question which often arises in the criminal cts. section 178 lays down that the police report under that section must be in the form prescribed by the govt. setting forth the names of the parties, the nature of the information,.....
Judgment:

Mallappa, J.

1. This is a revn. petn. against the order in C. C. No. 2519 of 50-51 on the file of the City Mag. Bangalore, refusing to furnish the petnr. with a copy of the entries in Col. No. 6 of the charge-sheet placed against him.

2. The point has come up before this Ct. for consideration several times, & if it has come up before a Bench for consideration, it is because after the amendment of Section 173, Cr. P. C., the opinions expressed in some unreported cases on this aspect of the matter are not uniform & it is desirable to lay down a definite view on this question which often arises in the criminal Cts. Section 178 lays down that the Police report under that section must be in the form prescribed by the Govt. setting forth the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case & stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond. Section 190, Cr. P. C. states that a Mag. can take cognizance of any offence upon receiving a complaint of facts which constituted such offence. It is clear that the report refd. to in this section is the report required Under Section 178, Cr. P. C. It is by this report that the Criminal law is set in motion by the Police before a Mag. The Police Officer is a Public Officer. The report Under Section 173, Cr. P. C. is enjoined on the officer under that section. It is, therefore, a public document within the meaning of Section 74, Evidence Act, according to which documents which form the acts or records of the acts of public officers, whether legislative, judicial or executive are public documents. In the H. Cs. outside Mysore there was a divergence of opinion on this aspect of the matter as is clear by the decisions in Queen Empress v. Arumugam, 20 Mad. 189 and Queen Empress v. Venkataratnam, 19 Mad. 14. The difference was set at rest by the amendment of Section 173, Cr. P. C. by the addition of Clause 4 which is to the effect that a copy of the report under that section should be given to the accused on appln. before the commencement of the enquiry or trial.

3. So far as Mysore is concerned, no amendment was necessary as this Ct. had taken the view, even before the amendment, that a report Under Section 173, Cr. P. C. was a public document & that the accused was entitled to a copy of it. As observed by Venkataranga lyengar J. in the unreported case Cr. R. P. No. 192 of 43 44; 'The point is made clearer by the amendment to Section 173, Cr. P. C.; made by Act VI [6] of 1927.' That is, what was clear before is made clearer & the amendment makes no change in the law as understood in Mysore before the amendment.

4. Before considering the effect of the amendment, it has to be stated that what is refd. to as charge-sheet is something more than a report Under Section 173, Cr. P. C. Col. 6 of the charge-sheet contains the substance, of the statements of the witnesses made before the Police & this is not required to be stated in a report Under Section 173, Cr. P. C. The accused is not entitled to a copy of this at the commencement of the trial consistently with the provisions of Sections 163 & 172 Cr. P. C., as will be stated later. It may not be correct, therefore, to say that the accused is entitled to a copy of all the entries in the charge-sheet including col. No. 6 in it. In the unreported case refd. to above, Venkataranga Iyengar J., however, observes as follows:

'Even before the amendment of Section 173,Cr.PC. it was held by this Ct. in 4 Mys. L.J. 231 that the charge-sheet in the form prescribed by the Govt. is a public document Under Section 74, Evidence Act. When it is held to be a public document, it necessarily follows that the accused is entitled to a copy of all the columns in that document.'

It is true that it is stated in 4 Mys. Law Journal case refd. to above as follows :

'In Boregowda v. Govt. of Mysore, this Ct. has held the following opinion of Shephard & Subramania Iyyar JJ. in Queen-Empress v. Armugam, 20 Mad. 189 that a report Under Section 173, Cr. P. C. is a public document within the meaning of Section 74, Evidence Act, & that an accused whose interests are affected thereby will be entitled to a copy. It was farther held that a charge-sheet being a report which the Police Officer submits Under Section 173, an accused person whose interests are involved by such a report is entitled to a copy of such portion of it as contains information which as prescribed in 8. 173 should be submitted to a Mag.'

It will be noticed that in this decision Doraiswami Iyer & Rama Rao JJ. are merely approving of what has been held in Boregowda v. Government of Mysore. At first sight it looks, however, that according to them it has been held in Boregowda v. Govt. of Mysore, that a charge-sheet is a public document of which an accused is entitled to a copy. But a careful reading of the decision makes it clear that a copy of such portion of it as contains information which as prescribed in Section 173, Cr. P. C., alone is what the accused is entitled to. This is further clear by the decision in Boregowda v. Govt. of Mysore which states that

'If a charge-sheet contains more information than is prescribed Under Section 173, an accused person is entitled to copies of only such portions of it as are prescribed by Section 173.'

It also makes it clear that Sections 172 & 162 forbid the grant of copies to an accused except under circumstances refd. to them:

'We agree with the majority of the Madras H. C. P. B. in the ruling quoted in 20 Mad. 189 that reports Under Sections 157 & 168 are not 'public documents,' but for reasons given above we are of the opinion expressed by two of the Judges in the above case, that report Under Section 173, Cr. P. C. is a public document within the meaning of Section 74, Evidence Act, & we think it would follow that, unless there is any special provision in law or statutory restriction to the contrary, an accused person would be entitled to a copy thereof, when that document affects some interest of his for the protection of which inspection of the document was necessary.'

The view taken by this Ct. in Boregowda v. Govt. of Mysore is not only quoted with approval in 4 Mys. L. J. 231, but also in 7 Mys. L. J, 189 where the question of accused being entitled to copy of a large number of documents came up for detailed consideration :

'As to Section 648, Cr. P. C., no doubt the Mag. passes his orders after perusal of all parts of the documents, but they are merely interlocutory orders before the final stage is reached, & as such they cannot automatically convert the mere police statements into judicial evidence or record. Otherwise it may become necessary to draw an unreasonable & untenable distinction between statements folld. by orders for remand & disposal of property, & others, when there was no occasion at all for arrest of persons or seizure of property. The bare word 'record' in Section 541, Cr. P. C. does not seem to permit any such interpretation & thereby nullify the express provisions of Sections 162 & 172, Cr. P. C.--Compare also Emperor v. Muthaia Swamiyar, 30 Mad. 466. The particulars given in the reports comprise partly of acts that strictly pertain to the special diaries and partly informations gathered by the police & statements of witnesses examined by them. Under Section 167 the Police have to submit to the Mag. a copy of the entries in the diary before an order on the appln. for remand could be obtained. In other cases also the Mag, may have to call for the Police papers & consider them before passing the needed orders. It is only to facilitate his persual of those papers that their abstracts are given in the several reports or applns. Since the originals are privileged the abstract also partakes of that character & cannot be open to inspection except in the manner provided by law. Adopting therefore the limitations imposed in Bore Gowda v. Govt. of Mysore, in respect of the charge-sheet, with regard also to the papers above mentioned we are of opinion that copies could be granted of only the columns giving descriptions of the properties seized, the date & hour of arrest, the facts actually observed & recorded during the inquest, but not of the column or columns giving details of the police investigation & the informations collected by the police to fix the offence & the offender which are covered by Sections 162 & & 172, Cr. P. C.'

It follows from some of these decisions that while, a report Under Section 173, Cr. P. C. is a public document & that the accused is entitled to a copy of it, the information contained in col. 6 what is popularly known as 'charge-sheet' is a record containing summary of statements of witnesses made before the police during investigation & that it is merely intended as a guide to the Prosecutor to elicit what is necessary from each witness, as well as for the Ct. to know what each witness is likely to state. Venkataranga Iyengar J. in the unreported case states:

'I am unable to understand the learned Mag.'s reasoning as to how the particulars contained in Col. (6) of the charge-sheet contradict the provisions of Section 162, Cr. P. C.'

It has to be stated that Section 162, Cr. P. C. is clear on the point.

'Section 162 (1): No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into rising as aforesaid, the Ct. shall, on the request of the accused, refer to such writing & direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 146, Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter refd. to in this cross-examination:

Provided, further, that, if the Ct, is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice & is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the acaused.'

Sections 162 & 172, Cr. P. C. prohibit the grant of copies except at the stage & in the circumstances refd. to in them & the decision in Cr. R. P. 192 of 43-44 is evidently due to the decision in Bore Gowda v. Govt, of Mysore, 19 Mys. C. C. R. 121 and 8 Mys. L. J. 16 not being brought to the notice of the learned Judge. It may be stated here that amendment of s. 173 does in no way alter the position, as what is stated in the newly added clause is:

''That a copy of a report under that section should be given on appln. to the accused before the commencement of the enquiry or trial.'

This does not mean that copy of that portion of the charge-sheet which does not come within the scope of a report Under Section 173, Cr. P. C. is what the accused is entitled to before the commencement of the enquiry or trial. It may be stated here that in the F. B. decision of the Madras H. C. refd. to above where there was a difference of opinion about the grant of copies of charge-sheets prior to the amendment it is stated: 'As a fact, however, they have been enlarged so as to contain much more than the Code requires' (observations of Benson J.). If it was intended by the amendment that a copy of the entire charge-sheet including portions which are not directed to be included in a report Under Section 1.73, Cr. P. C. & what has been prohibited Under Sections 162 & 172, Cr. P. C. should also be given, the amendment would not have confined itself, to the direction that copy of a report Under Section 173, Cr. P. C., alone should he given. On the other hand, it would have been stated that a copy of the entire charge-sheet itself might be granted.

We do not, therefore, think that the amendment has in any way affected the right of the accused to get copy of only certain columns of the charge-sheet.

5. It was contended in the revn. petn. that the lower Court has overlooked the decision in 8 Mys. L. J. 16. It is observed in that case:

'Where the Police report on which the Mag, takes cognisance of an offence is defective & does not comply with the provisions of Section 173 the prosecution is not one legally instituted Under Section 190 (1) (b), Cr. P. C. If the information required to be given by Section 173, Cr. P. C. is not contained in the charge-sheet, the Mag. may refuse to take cognisance. It the omission relates to information required to be furnished in the form prescribed for the Police report, cognisance taken by a Mag. on such defective report is not necessarily invalid in law.

Section 173. Cr. P. C. makes it incumbent on the Police to adopt the form prescribed by the Govt. for furnishing information required by the section. Under Col. 6 of that form the Police are required to State 'what point each witness is called upon to prove.' The object is to give earliest information to the accused as to the point or points which each witness would depose to in regard to the accusation brought against him.'

Moreover, as observed by Coutts J. in Grant v. Emperor, 65 I. C. 421:

'The last contention of Mr. Manuk is that on the charge-sheet as submitted the Mag. could not, under law, take cognizance because it does not show exactly what each of the witnesses named in the charge-sheet will prove. I can find no provision of the law which requires that the Mag. before taking cognizance should; know exactly what each of the witnesses named in charge-sheet will prove; nor can I find any authority for such a proposition. The charge-sheet alleges that a certain offence will be established by the evidence of certain witnesses & in my opinion, this is sufficient to enable the Mag. to take cognizance,'

Similar observations were made in Balasundaram v. Emperor by Reilly J. 1929 Mad. W. N. 504:

'The information given in the charge sheet in this case is not very full, but I cannot say that it does not comply with the provisions of Section 173, Cr. P. C. The contention that that section requires that an abstract of the evidence to be given by each of the witnesses mentioned should be entered in the report or charge sheet appears to me unsound. Nor is there in my opinion anything in the suggestion that this form of charge-sheet prescribed by G. O. No. 3487 law (General) dated 16-10-1928 & published in the Fort Saint George Gazette dated 23-10-1928, could not legally be prescribed Under Section 173, Cr. P. C. because it requires less details to be given than were required in the form previously prescribed.'

Sreenivasa Iyer J. has distinguished the observations of the above two cases by stating that the observations are based on the amended form of charge-sheet prescribed by the Govt. of Madras. But the reasons given by the learned Judges are not based on any such form & deserve careful consideration. It has to be observed that according to Section 190, Cr. P. C. a Mag. can take cognizance of any offence (a) upon receiving a complaint of facts which constituted such offence; (b) upon a report in writing of such facts made by any police officer, etc. It is clear that such facts mean facts which constitute an offence. There is, therefore, nothing wrong in a Mag. taking cognizance of an offence when a Police Report merely contains the facts which constitute the offence & not the evidence with which the prosecution propose to prove the case. It may be added that while it is the duty of the Police Officer to make a report of all the information refd. to in Section 173, Cr P. C., a Mag would not be wrong in taking cognisance of an offence if facts which constitute the offence alone are mentioned in the report. It has to be stated, therefore, with respect that the observations made by Sreenivasa Iyer J. in 8 Mys L. J. 16, are rather broadly stated & in fact they do not in any way affect, as contended, the decision in this case.

6. We think, therefore, that the learned Mag. was right in refusing to grant copies of Col. (6) of the charge-sheet disclosing information as to what point each witness cited therein is called upon to prove. The revn. petn. is dismissed.

Yasudevamurthy, J.

7. The question whether an accused person is entitled to a copy of the entries in col. No, 6 of the charge-sheet placed against him, viz. the summary of what the witnesses for the prosecution are cited to speak to, has been decided by a Bench of this Ct. consisting of Ghandrasekhara Aiyar & Wallace JJ. so far back as in the year 1914 in 19 Mys. C. C. R. 192. They held that the report of a police officer prescribed by law Under Section 173, Cr. P. C. is a public document within the meaning of Section 74, Evidence Act, & the accused person would be entitled to a copy thereof, but if a 'charge-sheet' contains more information than is prescribed Under Section 173 then the accused person is entitled as of right to copies only of such portions of it as are prescribed by Section 173. They observed:

'But while the petnr. would be therefore entitled to a copy of a report Under Section 173, Cr. P. C. affecting his interests, we do not hold that he is necessarily entitled to a copy of what is called the 'charge-sheet'. The document usually called the 'charge-sheet' is a document which contains much more information than is prescribed Under Section 173.'

8. Section 173, Cr. P. C. lays down that as soon as an investigation by the police is completed the officer in the charge of the police station shall forward to the Mag. empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Govt. setting forth the names of the parties, the nature of the information & the names of the persons who appear to be acquainted with the circumstances of the case, & stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond, &, if so, whether with or without sureties. As further observed in 19 Mys. C.C. R. 121 a charge-sheet should, therefore, contain more or less what a private complaint usually contains such as the names of the parties, the main facts, leading up to the complaint & the names of the witnesses on whom the complainant relies to prove his case. But if a charge-sheet contains any record of the police investigation or details of the evidence which particular witnesses are expected to give, the same goes beyond the requirements of Section 173 & such extra matter is not a 'public document.' The learned Judge who decided that case said, & I think very correctly, if I may say so with respect, that this view was fully supported by the

'specific prohibition in Section 172 & the implied prohibition in Section 162, which forbid an accused, except under special circumstances therein detailed, having accesses to the details of the police investigation & the details of the statements made by any person to the police.'

9. By an amendment of the Cr. P. C. in British India as it then was in 1923, a sub-section was added to this section which provided that a copy of any report forwarded under the section shall, on appln. be furnished to the accused before the commencement of the inquiry or trial. This was rendered necessary as there were some differences of opinion in the British Indian H. Cs. on the question whether such a police report was or was not a public document and it had been held by a F. B. of the Madras H. C. in 20 Mad. 189 that an accused person was not entitled to have a copy of the charge-sheet before the commencement of the inquiry or trial as the same was not a public document within the meaning of Section 74, Evidence Act.

10. In Mysore also that sub-section was added to Section 173 by Act VI [6] of 1927. It is contended for the petnr. that by reason of that amendment the decision in 19 Mys. C. C. R. 121 requires re-consideration. He relies for his contention also on certain later decisions of this Ct. which may be considered. After 19 Mys. C. C. R. 121, the next case in which the matter appears to have come up for consideration of this Ct. is in 4 Mys. L. J. 231. It was decided in that case by Doraiswami Iyer & Rama Eao JJ. that a 'B' report like a, charge-sheet is a report submitted by a police officer to the Ct. in compliance with Section 173, Cr. P. C., & being therefore a public document within the meaning of Section 74, Evidence Act, an accused person was entitled to a copy of it Under Section 76, Evidence Act. In coming to that conclusion 19 Mys. C. C. R. 121 was refd. to with approval & it has to be noticed that the learned Judges expressly observe that the accused is entitled under the later section to have a copy only of so much of the report as a police officer is bound to furnish in accordance with the requirements of Section 173, Cr. P. C.

11. The question was consd. again by this Ct. in 7 Mys. L. J. 189. In .that case the accused had applied before trial for copies of quite a large number of documents connected with the investigation or leading up to the complaint. The learned Judges, who were the same as those who decided the case in 4 Mys. L. J. 231, pointed oat that some particulars given in the police report may comprise partly of facts that strictly pertain to the special diaries & partly information gathered by the police & the statements of witnesses examined by them; and though Under Section 167 the police may have to submit to the Mag. copy of the enbries in the diary for purposes of obtaining remand or the Mag. may call for all the police papers, the originals are privileged & cannot be open to inspection except in the manner provided by law.

'Adopting therefore the limitations imposed in 19 Mys. C. C.R. 121 in respect of the charge-sheet with regard also to the papers above mentioned,'

they say

'We are of the opinion that copies could be granted of only the columns giving description of the properties seized, the date & hour of arrest & the facts actually observed & recorded during an inquest but not of the column or columns giving details of the police investigation & the informations collected by the police to fix the offence on the offender which are covered by Rs. 162 & 172 Cr. P. C.'

12. In 8 Mys. L. J. 16, Srinivasa Iyer J. had to consider an application by the accused persons to quash certain criminal proceedings instituted against them on the ground that the information set forth in the charge-sheet did not contain any statement that the accused had committed any act constituting an offence & that the charge-sheet was further defective as the point to which each witness had to speak was not mentioned therein. That learned Judge held that as the charge-sheet in the case did not contain the nature of the information against each of the accused & did not give particulars which should have been furnished in Col. 6 of the form prescribed by the Govt. there was not sufficient compliance with Section 173; but nevertheless that requirement of the law could sufficiently be complied with if the information was furnished by the prosecution later. The question of the accused being entitled to a copy of the entries in Col. 6 did not arise directly in that case & neither 19 Mys. C. C. R. 121 nor 4 Mys. L. J. 231 was apparently brought even to the notice of the learned Judge. It may be that it is incumbent on the police to adopt the form prescribed by the Govt. Under Section 173, Cr. P. C. but that does not necessarily make it incumbent on the Ct. to furnish a copy of that column to the accused.

13. The point under consideration, however, arose directly for decision before another single Judge, Venkata Ranga Iyengar J. in Cr. R. P. No. 192 of 43-44 where he held that a charge-sheet in the form prescribed by the Govt. is a public document Under Section 74, Evidence Act, & therefore it necessarily folld. that the accused was entitled to a copy of all the columns in that document. To come to this conclusion he reld. on the amendment to Section 173, Cr. P. C., & the decision in 4 Mys. L. J. 231 & he observed that even before such amendment it had been held in 4 Mys. L. J. 231 that such charge-sheet was a public document. Before us Mr. H.V. Krishna Rao, learned counsel for the 'petnr. placed strong reliance on this judgment. The distinction made by this Ct. between the requirements of a report required of the police Under Section 173 & the contents of a charge-sheet which they may file, & the limitation on the right of the accused to obtain a copy only of what the report is to contain as decided in 19 Mys. C. C. R. 121 does not appear to have been expressly brought to the notice of Venkata Eanga lyengar J. though in 4 Mys. L. J. 231 a reference has been made to that decision. He has merely observed that the point decided in 4 Mys. L. J. 231 is made clearer by the amendment to Section 173 effected by Act VI [6] of 1927. To support this he quotes in extenso the speech made by one of the members of the legislature in moving the amendment pointing out that there has been considerable difficulty in the matter of obtaining a copy of the charge-sheet by the accused on account of the rulings of the various Cts. but he has not consd. the distinction made in 19 Mys. C. C. R. 121.

14. The next case, which is also unreported, in which the matter came up for consideration was before my learned brother Mallappa J. in Cr. R. P. 268/50-51 where following 19 Mys. C. C. R. 121 he confirmed the order of the Mag, refusing to grant copies of what each witness for the prosecution was called to speak to.

15. So far as Mysore is concerned, the amendment made in 1927 was really unnecessary at all, to enable the accused to obtain a copy of a report made Under Section 173, in view of the decision in 19 Mys. C. C. R. 121. There can, of course, be no doubt that if there is a conflict between a form prescribed by Govt. & the requirements of Section 173, it is the latter that should prevail. Supposing for instance in the form prescribed a column was provided for noting previous convictions or an abstract of confessions either before the police or even a Mag, or other antecedents of an accused which ought not to be oonsd. against him at that stage surely it cannot be contended that the form should prevail & that no Mag. can take cogniz-ance on a report or charge-sheet in which those cols, are not filled up by the police.

16. In Madras the earlier form which had a column similar to col. 6 was later on changed & the particulars of the evidence which each witness was called upon to give has been omitted; & this has been held not to offend the provisions of Section 173, Cr. P. C. See 1929 Mad. W. N. 504 in which Reilly J. observed:

'Section 173, Cr. P. C. does not require that an abstract of the evidence to be given by each of the witnesses mentioned should be entered in the report or charge-sheet. The form of charge-sheet prescribed by Govt. requiring less details to be given than are required in the previous forms is not illegal.'

It may be that the giving of that information would help the Mag. in passing orders on inter locutory applns. for remand, bail etc., & also be a guide to the prosecutor as the investigating officer is not permitted to conduct the prosecution & may not some times be present when the witnesses are examined. But there is no statutory provision in the Cr. P. C. which entitles the accused to obtain a copy of those particulars.

17. In the result, I think that there is no need to reconsider the decision in 19 Mys. C. C. R. 121, & the amendment be Section 173 by Act VI [6] of 1927 his not made it necessary to reconsider that decision. The decision of Venkata Eanga lyengar J. in Cr. R. P. 192 of 43-44 being opposed to that of the Bench cannot, in my opinion, have preference. I, therefore, agree with Mallappa J. that this revn. petn. must be dismissed.


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