What emerges from the above discussion is that the provisions under section 457 Cr.P.C. empowers a Magistrate to make an appropriate order "as he thinks fit" respecting the disposal of the property seized by the police. No doubt the discretion has necessarily to be exercised judiciously. It is, however, nowhere provided that the property has to be given to the person from whose possession it was seized. It gives discretion to the Magistrate to decide the question about the person "entitled to possess". The expression "entitle to possess" would primarily mean a lawful or rightful title to hold the property. Moreover, in the absence of anything to show the lawful possession to hold the property, it should be ordered to be delivered to a person in whose possession it had been at the time of seizure. Undoubtedly, the adjudication by the Magistrate would not be to decide the question of title but it would merely be to decide the question of the right to possession and the possession has necessarily to mean the lawful possession. In other words, sine qua non for the delivery of the property under this provisions of law is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property in which case his possession will not be respected and protected by law.
16. As regards the jurisdiction of the Magistrate to exercise the powers under the provisions of section 457 Cr.P.C., the same can be invoked the moment any property is seized by the police. The Magistrate would assume jurisdiction to pass an appropriate order under section 457 Cr.P.C. moment a seizure of any property by the police is reported to the Magistrate by any person having interest in the property seized, subject of course to any law in force to the contrary. The report of seizure by the police themselves is not a condition precedent for exercising powers under the said section by the Mag- istrate. Likewise the seizure would include any seizure by police whether lawful or not Irrespective of any irregularity in the course of seizure and once there is the seizure by the police, the jurisdiction of the Magistrate under section 457 Cr.P.C. is not curtailed. The powers of the Magistrate under section 457 Cr.P.C. are wide and it is necessarily to be wide for proper check over possible abuse of power by the police personnel.
Bombay High Court
Shri Anup R. Kantak vs State Through The Panaji Police ... on 9 July, 1999
Equivalent citations: 2000 (5) BomCR 600, 2000 BomCR Cri, 2000 CriLJ 1078
1. This revision application arises from order dated 30-1-1999 passed in Criminal Revision Application No. 30/1998 by the Sessions Judge, at Panaji. By the impugned order, the learned Sessions Judge while allowing the revision application filed by the respondent No. 2 herein has set aside the order dated 15-4-1998 passed in Criminal Misc. Application No. 64/1997/B by the Judicial Magistrate, First Class, at Panaji and has further directed that the possession of the suit shops should be restored to respondent No. 2 who had the possession of the same on the date of his application i.e. on 4-9-97 subject to any order which any of the parties may obtain from the Civil Court. The learned Magistrate by his order dated 15-4-98 confirmed the interim order dated 11-9-97 passed by the Magistrate in the said case and thereby held that the possession handed over to the petitioner by the police pursuant to the order dated 11-9-97 passed by the learned Judicial Magistrate was to be maintained. In fact, it was by the order dated 10-9-97 that the learned Judicial Magistrate had directed the delivery of possession of the suit shops to the petitioner on the ground that the police had no reason to proceed to the suit premiss on the night of 3-9-97 and to undertake to break open the lock of the suit shops and hand over the possession thereof to the respondent No. 2 when undisputedly the lock was opened by the police with the keys provided by the brother of the petitioner.2. The facts in brief relevant to the decision are that on 2-9-97 the respondent No. 2 herein lodged with the Panaji Police Station a complaint dated 1-9-97 to the effect that on 1-9-97 when his son had gone to the suit premises, he found that the locks of the premises had been changed by someone and it was causing obstruction to his entry in the suit premises though he was lawfully entitled to enter the same being the lessee thereof. It was also stated in the complaint that he had reason to believe that the said locks were changed by the petitioner since he had earlier threatened to dispossess the respondent No. 2. It was the case of the respondent No. 2 that he was the lessee of the suit premises on monthly rent of Rs. 325/- and the lease was created by Manguesh Sinai Kantak grand father of the petitioner. It was pursuant to the said complaint that the police personnel of the Panaji Police Station came to the suit shops on the night of 3-9-97 and broke open one lock by which time the petitioner's brother arrived at the scene and offered the keys of the remaining two locks. The police after opening the two locks, as it was !ate and dark, could not complete the panchanama and fixed new locks and retained the keys of the new lock with them and on the next day i.e. on 4-9-97 after completing the panchanama took away the said new locks and left the suit shops in the possession of the respondent No. 2.
3. Thereupon the petitioner filed an application under section 457 Cr.P.C. before the learned Judicial Magistrate, First Class at Panaji for directions to the police to deliver the possession of the suit shops to the petitioner. After hearing the parties, learned Magistrate by order dated 10-9-97 ordered the possession of the suit shops to be delivered to the petitioner, which order was duly complied with by the police on 12-9-97 and the possession of the suit premises was delivered to the petitioner.
4. It is to be noted that the application under section 457 Cr.P.C., which was registered as Criminal Misc. Application No. 64/1997/B, was filed against the State without joining the respondent No. 2 as party to the said proceedings. The parties who were heard were the petitioner and Assistant Public Prosecutor on behalf of the State. The respondent filed Criminal Writ Petition No. 9/1997 and by order dated 26-11-97, this Court directed the Magistrate to hear the matter afresh, by giving opportunity to the respondent No. 2 of being heard in the matter.
5. Thereupon the learned Magistrate after recording the evidence produced by both the parties and after hearing them by an order dated 15-4-1998 held that the petitioner was in possession of the suit shops as on 3-9-97 when the police took the possession thereof and that the search and seizure of the suit shops by the police was not legal and that the possession of the suit shops had been taken by the police on the night of 3-9-97 from the petitioner and that the action of the police being illegal, the person entitled for the possession of the suit shops was the one who was illegally dispossessed by the police.
6. The learned Sessions Judge on the other hand, while allowing the revision application held that the action of the Police Inspector either in obtaining the possession of the suit premises from the petitioner or handing over the same thereafter to the respondent No. 2 cannot be supported by the provisions of the Code of Criminal Procedure and therefore by no stretch of imagination the action of the Police Inspector in relation to the suit shops could be said to be a seizure reported to a Magistrate under the provisions of this Code as contemplated by section 457 of the Code, that being the first requirement which could have given jurisdiction to the learned Magistrate to proceed in the matter under section 457 of the Code. It has been further held by the learned Sessions Judge that once the property was seized by the police and was handed over by the respondent No. 2, the learned Magistrate had no jurisdiction to restore the possession from the respondent to the petitioner. The learned Sessions Judge therefore, has ordered the possession of the suit shop to be restored to the respondent No. 2 who was admittedly in possession of the suit shops at the time of making the application by the petitioner on 4-9-98. While disposing the matter learned Magistrate as well as the Sessions Judge have made several observations against the police personnels and their conduct in the matter.
7. Placing reliance upon the decision in the matter of Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar and others, 1978 Criminal Law Journal 405, Mahindra Saigal v. State of Maharashtra and another, , Shri S.G. Dessai, Senior Advocate appearing for the petitioner submitted that the learned Sessions Judge erred in upsetting the order of the learned Magistrate and did not address himself in proper perspective to the scope and the extent of jurisdiction of the Criminal Court under section 457 Cr.P.C. According to the learned Senior Advocate, the impugned order is contrary to materials on record and has been passed in improper exercise of its jurisdiction by the learned Sessions Judge. Shri S.P. Faria, learned Special Public Prosecutor submitted that it was mandatory for the police to report the seizure and only after such report is made that the Magistrate could have exercised its jurisdiction under section 457 Cr.P.C. According to the learned Special Public Prosecutor no fault can be found with the order of the learned Sessions Judge as the order of the learned Magistrate was without jurisdiction. Shri S.D, Lotlikar, learned Advocate appearing for the respondent No. 2 placing reliance upon the decision in the matter of M.S. Jaggi v. Subaschandra Mohapatra, 1977 Cri.L.J. 1902, A.S.S. Ahmed Sahib v. Commissioner of Police, , S. Rajendra v. K.A.S. Rama Appaswamy and
others, 1982 Cri.L.J. 86 submitted that irrespective of any reasonings disclosed in the impugned order, no fault can be found with the decision delivered by the learned Sessions Judge and therefore no interference is called for in the matter. He further submitted that the decision of the learned Judge in the matter of Mahindra Saigal's case (supra), Ganesh Naik's case (supra) as well as Ghafoor Tawar's case (supra) justify the ultimate decision of the learned Sessions Judge in the matter rather than lending any support to the contentions advanced by the learned Advocate for the petitioner. The finding arrived at by the learned Sessions Judge are clearly borne out from the record.
8. In Ghafoor Bhai Tawar's case (supra) the learned Single Judge of this Court has held that the provisions of section 457 Cr.P.C. are sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal or custody of a property during investigation stage of a matter.
9. Learned Single Judge in Mahindra Saigal's case (supra) has held that where a person by cheating or fraudulently obtains a large sum of money and utilises same for purchasing property and if such property is seized by the police on the complaint under section 420 I.P.C., then such seized property cannot to be ordered to be returned to the person accused of commission of offence under section 420 as such property prima facie disclose to be involved in the offence by such person.
10. In Ganesh's case (supra) Rajasthan High Court placing reliance upon the judgments of the Apex Court in the matter of Smt. Basavva Kom Dyamangouda Patil v. State of Mysore, 1997(4) S.C.C. 358 and Anwar Ahmad v. State of U.P., held that after
the seizure of the property by the police, the order for disposal of the same can be passed only by a Judicial Magistrate and the police are expected to hold the property subject to the order of the Magistrate and disposal of the property without the order of the Magistrate by the police is illegal.
11. In Rajendran's case (supra) the-learned Single Judge of Karnataka High Court has held that under section 457 Cr.P.C. a Magistrate has three alternatives namely; (i) he has discretion to pass any order as he thinks fit for the disposal of the property or (ii) to deliver it to the person entitled to subject to such conditions if any, that he may impose or (iii) if there is no such person, pass an order for its custody and production. It has been further held that the discretion conferred upon the Magistrate under this section, is limited to selection of one of the two alternatives, namely delivery of the property to the person entitled thereto or disposal of the same and while selecting to deliver the property to the person entitled, the Magistrate cannot pass an order of delivery without giving a finding as to his possession.
12. In A.S.S. Ahmed Sahib's case (supra) the Madras High Court while considering the scope of the expression "person entitled to possession" in section 523 of the Criminal Procedure Code, 1898 held that what is required is not the proof of the offence in respect of which the property is seized but whether the property was seized in respect of an alleged offence or under suspicious circumstances. Once the property is seized under the circumstances mentioned in the said provisions, irrespective of the fact whether the investigation by the police disclosed an offence or not, the Court has to dispose the property. While doing so, it has got absolute discretion to pass an order as it thinks fit respecting the disposal of such property. But if it orders delivery of the property, then it has to deliver it to the person entitled to the possession thereof. It was further held that normally in cases where offence is not made out, the property should be delivered to the person from whom it is seized or taken. But it will depend upon the circumstances of each case. The words used in section 523 (1) Cr.P.C. "the person entitled to the possession of the property" cannot be equated with actual possession. Nor can they be equated with the expression "the person from whom the property is seized or taken. A person may be in unlawful possession at the time it was seized though he has not committed any offence, an in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The expression "entitled to possession" is the sine qua non for the delivery of property under section 523 Cr.P.C.
13. In M.S. Jaggi v. Subaschandra Mohapatra, 1977 Cri.L.J, 1902 while interpreting section 457 Cr.P.C. it was held that whenever the seizure of the property by police is reported to a Magistrate, his jurisdiction to act further under section 457 accrues. Such report may be made either by a Police Officer or by any other person interested. The expression "and such property is not produced before a Criminal Court during an inquiry or trial" in subsection (1) refers merely to a stage of investigation and not the stage of in- quiry or trial. It is a condition precedent to the exercise of jurisdiction by the Magistrate under section 457. The expression "may make such order as he thinks fit" limits the jurisdiction of the Magistrate to two alternatives viz, either to deliver the seized property to the person entitled to possession thereof, or to make such disposal, as he thinks proper, of the seized properly, in which case he has a discretion as to manner of disposal . If the person entitled to possession is known, the Magistrate may deliver the property to him. Here again, he has a discretion in the matter. If the person so entitled is not known, then the Magistrate shall issue a proclamation requiring any person who may have a claim to the seized property to appear before him and establish his claim.
14. The first sub-section of section 457 of the Criminal Procedure Code provides that whenever the seizure of property by any Police Officer is reported to a Magistrate under the provisions of the Code, and such property is not produced before a Criminal Court during any inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. The sub-section (2) thereof provides that if the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
15. What emerges from the above discussion is that the provisions under section 457 Cr.P.C. empowers a Magistrate to make an appropriate order "as he thinks fit" respecting the disposal of the property seized by the police. No doubt the discretion has necessarily to be exercised judiciously. It is, however, nowhere provided that the property has to be given to the person from whose possession it was seized. It gives discretion to the Magistrate to decide the question about the person "entitled to possess". The expression "entitle to possess" would primarily mean a lawful or rightful title to hold the property. Moreover, in the absence of anything to show the lawful possession to hold the property, it should be ordered to be delivered to a person in whose possession it had been at the time of seizure. Undoubtedly, the adjudication by the Magistrate would not be to decide the question of title but it would merely be to decide the question of the right to possession and the possession has necessarily to mean the lawful possession. In other words, sine qua non for the delivery of the property under this provisions of law is the entitlement of the person to possess. Mere possession is not decisive. A person may be in unlawful possession of the property in which case his possession will not be respected and protected by law.
16. As regards the jurisdiction of the Magistrate to exercise the powers under the provisions of section 457 Cr.P.C., the same can be invoked the moment any property is seized by the police. The Magistrate would assume jurisdiction to pass an appropriate order under section 457 Cr.P.C. moment a seizure of any property by the police is reported to the Magistrate by any person having interest in the property seized, subject of course to any law in force to the contrary. The report of seizure by the police themselves is not a condition precedent for exercising powers under the said section by the Mag- istrate. Likewise the seizure would include any seizure by police whether lawful or not Irrespective of any irregularity in the course of seizure and once there is the seizure by the police, the jurisdiction of the Magistrate under section 457 Cr.P.C. is not curtailed. The powers of the Magistrate under section 457 Cr.P.C. are wide and it is necessarily to be wide for proper check over possible abuse of power by the police personnel.
17. Reverting to the facts of the case, the petitioner's case in the application dated 4-9-97 was that about 25 years back the suit shop was leased to the respondent No. 2, who was conducting restaurant business in the suit shop till the Ganesh Chaturthi of 1994 and thereafter he stopped the business on account of old age. The petitioner approached the respondent No. 2 and requested him to surrender the suit shops to him. Though initially the respondent No. 2 did not agree to the same but subsequently offered to surrender the tenancy right subject to condition that the suit shops should be let out to one Vikas Madkaikar which proposal was accepted by the petitioner subject to enhancement of rent. In terms thereof, the tenancy was surrendered by the respondent No. 2 and it came to be taken over by Vikas Madkaikar. The agreement was executed between Vikas and the petitioner. The said Vikas for the first few months did a brisk business but after his father suffered a heart attack, he suffered loss in the business and failed to pay rent. The petitioner therefore, issued notices dated 1-2-96 and 1-11-96 to Vikas regarding non-payment of rents. Vikas offered to surrender the suit shops upon which an agreement of cancellation was executed on 27-8-97 and the possession of the suit shops were handed over to the petitioner by Vikas and that is how the petitioner came in possession of the suit shops from 27-8-97 and continued to be in possession thereof till 3-9-97 when the police in high handed manner put their locks to the suit shops.
18. As already noted above, the respondent No. 2 was not joined as the party respondent/opponent under the said proceedings under section 457 Cr.P.C. by the petitioner. The respondent No. 2 was ordered to be joined as the party to the proceedings by the order of this Court dated 26-11-97 in Writ Petition No. 9/1997.
19. The records disclose that both the parties have produced documentary as well as oral evidence. On the part of the petitioner he has sought to rely upon the agreement dated 3-4-95 as well as dated 27-8-97 between the petitioner and Vikas Madkaikar and also bank records as regards payment of rent by Vikas to the petitioner. Whereas the respondent No. 2 has produced licences from different authorities, electricity bills, water bills and money order receipts. It is the contention of the petitioner that the respondent had already surrendered tenancy in respect of the suit shops and Vikas Madkaikar was inducted as the tenant thereof. It is the case of the respondent No. 2 that he continued to be the tenant of the suit shops on payment of rent to the petitioner as well as licence fees to the concerned authorities. It is his contention that the rent was refused by the petitioner and therefore the same was sent by money order and last such money order prior to the date of incident was sent in August, 1997 which shows postal stamp thereon disclosing the date as 29-8-1997.
20. The fact that the respondent No. 2 had been the lessee in respect of the suit shops is not in dispute. It is contention of the petitioner that the leasehold rights were surrendered by the respondent No. 2 some time in 1995 pursuant to which an agreement between Vikas Madkaikar and the petitioner was entered into in relation to the suit shops. On the other hand, it is the case of the respondent No. 2 that he had never surrendered the tenancy right and he continued to be in possession of the suit shops.
21. The fact that on the night of 3-9-97 the police broke open one lock and opened the other two locks of the suit shops with the keys provided by the brother of the petitioner is not in dispute. It is also not in dispute that the suit shops remained under lock with the key thereof in the possession of the police from the time the suit shops were locked by the police on 3-9-97 till the morning of 4-9-97 when the said locks were removed by the police and that the possession of the suit shops since then till 12-9-97 was with the respondent No. 2. It is also a matter of record that from 12-9-97 the possession of the suit shops was delivered to the petitioner pursuant to the order of the learned Judicial Magistrate, First Class.
22. There is no doubt that on the day of the application under section 457 Cr.P.C. was filed by the petitioner, the suit shops were in possession of the respondent No. 2. However, it is to be noted that the possession of the suit shops with the respondent No. 2 on the said day was pursuant to the intervention of the police on 3-9-97. It cannot be disputed that from the time the police had locked the suit shops on 3-9-97 till the following day, the possession of the suit shops was neither with the petitioner nor with the respondent No. 2 but it was with the police. It is also a matter of record that the respondent No. 2 had lodged a complaint on 2-9-97 complaining about the obstruction to his entry in the suit shops on account of change of locks. In the complaint, the name of the petitioner was disclosed as being the person suspected of having caused the said obstruction to the respondent No. 2 for entering the suit shops. Likewise in the complaint by the petitioner under section 457 Cr.P.C. the petitioner had claimed to be in possession of the suit shops since 27-8-97 onwards. In other words on 3-9-97 both the parties were claiming to be in possession of the suit shops.
23. Perusal of the judgment of the trial Court clearly discloses that the learned Magistrate had considered only two issues namely; who was in possession of the suit premises on 3-9-97 and whether the seizure of the shops by the police was legal. The learned Magistrate did not find out who was entitled for possession on 3-9-97 as required under section 457 Cr.P.C. Merely because the premises were found locked with the keys with the petitioner, the learned Magistrate held that the possession was taken by the police on 3-9-97. The learned Magistrate did not analyse to ascertain who was entitled to be in possession of the suit shops on 3-9-97. As rightly observed by the learned Sessions Judge in order to find out as to who was entitled to possession of the suit shops on 3-9-97, it was necessary to find out whether the possession of the suit shops was lawfully delivered to the petitioner on 27-8-97 by Vikas Madkaikar as is claimed by the petitioner. In order to ascertain the same, it was necessary to find out whether Vikas had been in lawful possession of the suit shops at any time and if so, since when. In order to find out the same it was necessary to consider whether the petitioner has been able to establish that the respondent No. 2 had surrendered his leasehold rights in the suit shops and if so when and what was the factual position thereupon. Analysis of the materials on record in this line is absolutely necessary in view of undisputed fact that in the past the suit shops were leased to the respondent No. 2 and it is the case of the petitioner that the respondent No. 2 had surrendered the leasehold rights. Hence it is absolutely necessary to find out whether the petitioner has been able to establish his claim of surrender of tenancy. If the tenancy had not been surrendered, can it be said that the petitioner was in lawful possession or that he is entitled to be in possession of the suit premises. Moreover, after arriving at a finding that the learned Magistrate ought to have found that as to who was in possession of the suit shops on 27-8-97, the learned Sessions Judge neither himself analysed the records to find out the correct, answer to the point nor remanded the matter to the Magistrate for that purpose, and while condemning the action of the police proceeded to hold that the Magistrate could not have restored the possession of the suit shops to the petitioner since the possession was already handed over to the respondent No. 2 by the police and therefore, the Magistrate had no jurisdiction to act under section 457 Cr.P.C.
24. It is true that in view of the fact that the dispute between the parties being of civil nature, the police had no role to play and their interference was not called for and therefore the action of the police to break open the lock cannot be justified, in the absence of any law and order problem having arisen. Moreover what is highly objectionable is the subsequent act of delivery of the suit shops to the respondent No. 2 without seeking necessary order of the concerned Magistrate. Once the police had locked the suit shops and both the parties were restrained from entering the same, the possession thereof for all purpose was with the police and therefore there was seizure of the suit shops by the police, during the period from night of 3-9-97 till the morning of 4-9-97 i.e. the following day. Being so, it was the duty of the police to report the seizure to the concerned Magistrate and to obtain necessary order for delivery of possession of the suit shops. On such a report being made by the police, it was necessary for the Magistrate to decide the issue relating to the entitlement of the possession of the suit shops. In case of failure on the part of the learned Magistrate to perform this exercise, the same exercise was expected from the learned Sessions Judge. Even after correct diagnosis of the matter, the learned Sessions Judge also failed to perform appropriate operation as was otherwise required under the provisions of law.
25. While the learned Sessions Judge is justified in holding that the police could not have delivered the possession of the suit shops to the respondent No. 2, the finding that the Magistrate had no jurisdiction to order the delivery of possession to the petitioner once the possession of the suit shops was delivered to the respondent No. 2 by the police cannot be sustained; for the same reason the direction to restore the possession of the suit shops to the respondent No. 2 given by the learned Sessions Judge also cannot be upheld. This does not mean that this Court has expressed any opinion as regards the entitlement of the respondent No. 2 to possess the suit shops. In fact the said issue has to be primarily decided by the concerned Magistrate. At the same time the petitioner cannot be permitted to enjoy the possession of the suit shop at his sweet will during the pendency of the proceedings. Since the matter is to be remanded to the Magistrate to decide about the entitlement of the possession within a specified time and as the possession had been with the petitioner since 12-9-97 onwards pursuant to the order of the Magistrate, there is no justification to direct the possession of the suit shops being delivered to any other person during such proceedings before the Magistrate. However, it is necessary to impose certain restrictions as regards the use and maintenance of the suit shops.
26. In the result, therefore, the impugned order and judgment of the learned Sessions Judge as well as that of the learned Magistrate cannot be sustained and are liable to be set aside and are accordingly hereby quashed and set aside. The matter is remanded to the concerned Magistrate to decide afresh after hearing the parties bearing in mind, the observations in this judgment and in particular in paragraphs 14, 15, 16, 23 and 24 herein above, within a period of 8 weeks from today. Needless to say, the hearing of the parties would only be on the basis of the evidence already recorded before the order dated 15-4-98 of the learned Magistrate. Pending the disposal of the matter by the Magistrate, the possession of the suit shops with the petitioner shall be that of a Receiver of the Court. The petitioner shall afix forthwith new locks at his cost to the suit shops and one key of each of such locks should be deposited in sealed cover with the concerned Magistrate and which shall remain so deposited with the Magistrate and shall be subject to the final disposal of the matter by the Magistrate. The petitioner shall not induct any third person or create any third party interest in the suit premises and shall not cause any structural changes in or to the suit shops, as also shall not change the locks pending the disposal of the matter by the Magistrate. The minor repairs, if any, for the purpose of maintenance of the suit shops be carried out only after necessary permission from the concerned Magistrate. The parties to appear before the concerned Magistrate on 14-7-1999 at 10.30 a.m. to enable the Magistrate to take further steps in the proceedings. Rule made absolute in above terms, with no order as to costs.
27. Rule made absolute.
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