While the question of territorial
jurisdiction in civil cases, revolves mainly around (i) cause of
action; or (ii) location of the subject matter of the suit or (iii) the
residence of the defendant etc., according as the case may be,
the question of territorial jurisdiction in criminal Cases revolves
around (i) place of commission of the offence or (ii) place where
the consequence of an act, both of which constitute an offence,
ensues or (iii) place where the accused was found or (iv) place
where the victim was found or (v) place where the property in
respect of which the offence was committed, was found or (vi)
place where the property forming the subject matter of an
offence was required to be returned or accounted for, etc.,
according as the case may be.
19. While jurisdiction of a civil court is determined by (i)
territorial and (ii) pecuniary limits, the jurisdiction of a criminal
court is determined by (i) the offence and/or (ii) the offender.
But the main difference between the question of jurisdiction
raised in civil cases and the question of jurisdiction arising in
criminal cases, is twofold.
(i) The first is that the stage at which an objection as to
jurisdiction, territorial or pecuniary, can be raised, is
regulated in civil proceedings by Section 21 of the Code of
Civil Procedure, 1908. There is no provision in the Criminal
Procedure Code akin to Section 21 of the Code of Civil
Procedure.
(ii) The second is that in civil proceedings, a plaint can be
returned, under Order VII, Rule 10, CPC, to be presented to
the proper court, at any stage of the proceedings. But in
criminal proceedings, a limited power is available to a
Magistrate under section 201 of the Code, to return a
complaint. The power is limited in the sense (a) that it is
available before taking cognizance, as section 201 uses the
words “Magistrate who is not competent to take
cognizance” and (b) that the power is limited only to
complaints, as the word “complaint”, as defined by section 2(d),
does not include a “police report”.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRL.) NO.456 OF 2019
KAUSHIK CHATTERJEE Vs STATE OF HARYANA
Dated: SEPTEMBER 30, 2020
1. Seeking transfer of three criminal cases, all pending on
the file of the Court of the Additional Judicial Magistrate,
Gurugram, Haryana, to any competent Court in New Delhi, a
person who is implicated as one of the accused in those three
cases has come up with the above transfer petitions.
2. I have heard Mr. Vikas Singh, learned Senior Counsel
appearing for the petitioner, Mr. Deepak Thukral, learned
counsel appearing for the State of Haryana and Mr. Neeraj
Kishan Kaul, learned Senior Counsel appearing for the de facto
complainant, who is the second respondent herein.
3. The petitioner herein was appointed on 04.08.2016 as the
Group Chief Risk OfficerExecutive
Director of the second
respondent, which is a nonbanking
finance company and
which happens to be the de facto complainant in the criminal
cases whose transfer is what is sought in these petitions. It is
relevant to note that the petitioner, upon his appointment,
joined the Delhi Office of the second respondentCompany
on 04.08.2016 and he was transferred to Mumbai on 10.04.2017.
The petitioner resigned in July2018.
4. Three loans sanctioned by the second respondentCompany,
during the period when the petitioner was in service,
became the subjectmatter
of three different complaints lodged
by the second respondentCompany.
All the three complaints
were lodged by the second respondent with the Station House
Officer, Civil Lines, Gurugram P.S. For the purpose of easy
appreciation, the particulars of the loan and the borrower, as
well as the particulars of the FIR are given in the tabular
column as follows:
S.No. FIR No. Offences
Complained
Borrower Date of
Sanction
Amount of loan
1. 452/2018 Sections
406, 408,
420, 120B
r/w Section
34 of the
IPC.
Zillion
Infraprojects
Private Ltd.
26.10.2016 Rs.4,30,00,000/2.
748/2017 114, 120B,
406,
420, 467,
468, 471
and 216 of
the IPC.
AlFatah
Tours and
Travels
22.09.2019 Rs.71,50,000/3.
356/2019 Sections
120B,
406, 408,
420, 387
r/w
Section 34
of the IPC
Hotel M.S. 30.12.2016 Rs.46,00,000/28.12.2017
Rs.5,13,594/5.
After completion of investigation, the police filed a
chargesheet
on 14.12.2018 in FIR No.452/18, for alleged
offences under Sections 406, 408, 420, 120B
read with Section
34 of the Indian Penal Code (hereinafter referred to as the
“IPC”).
6. Similarly, a chargesheet
was filed on 18.07.2019 in FIR
No.748 of 2017 for alleged offences under Sections 114, 120B,
406, 420, 467, 468, 471 and 216 of the IPC. Likewise a chargesheet
was filed on 24.10.2019 in FIR No.356/2019 for offences
under Sections 120B,
406, 408, 420, 387 read with Section 34
of the IPC.
7. The police also filed supplementary chargesheets,
on 06.01.2020 in the first case and on 08.11.2019 in the third
case.
8. Contending (i) that no part of the cause of action arose in
Gurugram to enable the de facto complainant to lodge a
complaint in the Gurugram Police Station; (ii) that while first
loan was sanctioned at Delhi, the second loan was sanctioned
at Indore and third loan was sanctioned at Surat, nothing
happened in Gurugram, entitling the de facto complainant to
invoke the jurisdiction of the investigating agency and the
Court in Gurugram; (iii) that the second respondent defacto
complainant has deliberately filed the complaint at Gurugram,
as the promoter of the de facto complainant wields lot of
influence at Gurugram and (iv) that the petitioner will not get a
fair trial at Gurugram, the petitioner has come up with the
above transfer petitions.
9. Thus, in effect, transfer is sought primarily on 2 grounds
namely (i) lack of territorial jurisdiction and (ii) apprehension of
bias.
10. But Mr. Vikas Singh, learned Senior Counsel for the
petitioner did not press into service the second ground,
revolving around the allegation that the second respondent
wields a lot of influence locally in Gurugram and that the
petitioner will not get a fair trial. This saves me of the
botheration to bring on record the transcript of certain
whatsapp messages filed before me as part of the paper book.
11. Mr. Vikas Singh, learned Senior Counsel, took me
through the loan agreements under which the second
respondentCompany
sanctioned the subject loans and argued
that in all the three loan agreements, the place of execution of
the agreement, the Branch office of the lender and the address
of the borrower are indicated. For instance, the loan agreement
dated 26.10.2016 under which facilities were extended to
Zillion Infraprojects Private Limited (which forms the subject matter
of FIR No.452/2018), the place of execution of
agreement and the address of the Branch Office of the lender
are indicated to be at Delhi. The address of the borrower as well
as the Coborrower
are also stated to be in Delhi. The branch of
the bank on which the cheque for the loan amount was drawn
was also in Delhi.
12. Similarly the loan agreement under which facilities were
extended to Hotel M.S. (which forms the subject matter of the
third FIR) indicates the place of agreement and Branch Office of
the lender to be Indore. The address of the borrower is also
stated therein to be in Indore. The address of the lender is
indicated to be in Bombay.
13. Insofar as the loan agreement under which facilities were
extended to Al Fatah Tours and Travels (forming the subject
matter of second FIR) is concerned, the place of the agreement
and the Branch Office of the lender are stated to be at Surat.
The address of the borrower is indicated to be in Surat and the
address of the lender is stated to be in Mumbai.
14. Therefore, it was contended by Mr. Vikas Singh, learned
Senior Counsel for the petitioner that the entire cause of action
in respect of one case arose in Delhi, the entire cause of action
for the second case arose in Indore and the entire cause of
action for the third case arose in Surat. It is also contended by
him that the de facto complainant did not even have an office at
Gurugram and that the second respondent is guilty of perjury
by claiming even before this Court, as though they have an
office in Gurugram. The petitioner has also taken out an
application under Section 340 of the Code of Criminal
Procedure for prosecuting the officials of the second respondent
for committing perjury through their claim that the second
respondent has an office at Gurugram.
15. Mr. Neeraj Kishan Kaul, learned Senior Counsel
appearing for the second respondent contended that the
question whether any part of the cause of action arose within
the local limits of jurisdiction of the Courts in Gurugram, is a
question of fact to be established by evidence and that the same
cannot be gone into in the transfer petitions. In support of this
proposition, he relied upon the decision of this Court in
Abhiram Veer Vs. North Eastern Regional Agricultural
Marketing Corporation Ltd.2000 (10) SCC 433.
He also contended that insofar
as the loan granted to Zillion Infraprojects limited is concerned,
the property offered as security is located in Gurugram and that
the second respondent was actually sharing the office space of
a company which is a 100% subsidiary of the second
respondent. Therefore, it is his contention that no wrong
statement was ever made. It is further contended that the
borrowers who are also the prime accused in these cases have
not sought a transfer and that therefore the petitioner is not
entitled to seek transfer.
16. The learned Standing Counsel for the State of Haryana
supplemented the arguments of the learned Senior Counsel for
the second respondent and relied upon the decision of this
Court in Asit Bhattacharjee Vs. Hanuman Prasad Ojha &
Ors. 2007 (5) SCC 786
17. I have carefully considered the rival contentions.
18. As seen from the pleadings and the rival contentions, the
petitioner seeks transfer, primarily on the ground of lack of
territorial jurisdiction. While the question of territorial
jurisdiction in civil cases, revolves mainly around (i) cause of
action; or (ii) location of the subject matter of the suit or (iii) the
residence of the defendant etc., according as the case may be,
the question of territorial jurisdiction in criminal Cases revolves
around (i) place of commission of the offence or (ii) place where
the consequence of an act, both of which constitute an offence,
ensues or (iii) place where the accused was found or (iv) place
where the victim was found or (v) place where the property in
respect of which the offence was committed, was found or (vi)
place where the property forming the subject matter of an
offence was required to be returned or accounted for, etc.,
according as the case may be.
19. While jurisdiction of a civil court is determined by (i)
territorial and (ii) pecuniary limits, the jurisdiction of a criminal
court is determined by (i) the offence and/or (ii) the offender.
But the main difference between the question of jurisdiction
raised in civil cases and the question of jurisdiction arising in
criminal cases, is twofold.
(i) The first is that the stage at which an objection as to
jurisdiction, territorial or pecuniary, can be raised, is
regulated in civil proceedings by Section 21 of the Code of
Civil Procedure, 1908. There is no provision in the Criminal
Procedure Code akin to Section 21 of the Code of Civil
Procedure.
(ii) The second is that in civil proceedings, a plaint can be
returned, under Order VII, Rule 10, CPC, to be presented to
the proper court, at any stage of the proceedings. But in
criminal proceedings, a limited power is available to a
Magistrate under section 201 of the Code, to return a
complaint. The power is limited in the sense (a) that it is
available before taking cognizance, as section 201 uses the
words “Magistrate who is not competent to take
cognizance” and (b) that the power is limited only to
complaints, as the word “complaint”, as defined by section 2(d),
does not include a “police report”.
20. Chapter XIII of the Code of Criminal Procedure, 1973
contains provisions relating to jurisdiction of criminal Courts in
inquiries and trials. The Code maintains a distinction between
(i) inquiry; (ii) investigation; and (iii) trial. The words “inquiry”
and “investigation” are defined respectively in clauses (g) and (h)
of Section 2 of the Code.
21. The principles laid down in Sections 177 to 184 of the
Code (contained in Chapter XIII) regarding the jurisdiction of
criminal Courts in inquiries and trials can be summarized in
simple terms as follows:
(1) Every offence should ordinarily be inquired into and tried
by a Court within whose local jurisdiction it was committed.
This rule is found in Section 177. The expression “local
jurisdiction” found in Section 177 is defined in Section 2(j) to
mean “in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code”
(2) In case of uncertainty about the place in which, among
the several local areas, an offence was committed, the Court
having jurisdiction over any of such local areas may inquire
into or try such an offence.
(3) Where an offence is committed partly in one area and
partly in another, it may be inquired into or tried by a Court
having jurisdiction over any of such local areas.
(4) In the case of a continuing offence which is committed in
more local areas than one, it may be inquired into or tried by a
Court having jurisdiction over any of such local areas.
(5) Where an offence consists of several acts done in
different local areas it may be inquired into or tried by a Court
having jurisdiction over any of such local areas. (Numbers 2 to
5 are traceable to Section 178)
(6) Where something is an offence by reason of the act done,
as well as the consequence that ensued, then the offence may
be inquired into or tried by a Court within whose local
jurisdiction either the act was done or the consequence ensued.
(Section 179)
(7) In cases where an act is an offence, by reason of its
relation to any other act which is also an offence, then the first
mentioned offence may be inquired into or tried by a Court
within whose local jurisdiction either of the acts was done.
(Section 180)
(8) In certain cases such as dacoity, dacoity with murder,
escaping from custody etc., the offence may be inquired into
and tried by a Court within whose local jurisdiction either the
offence was committed or the accused person was found.
(9) In the case of an offence of kidnapping or abduction, it
may be inquired into or tried by a Court within whose local
jurisdiction the person was kidnapped or conveyed or concealed
or detained.
(10) The offences of theft, extortion or robbery may be
inquired into or tried by a Court within whose local jurisdiction,
the offence was committed or the stolen property was
possessed, received or retained.
(11) An offence of criminal misappropriation or criminal
breach of trust may be inquired into or tried by a Court within
whose local jurisdiction the offence was committed or any part
of the property was received or retained or was required to be
returned or accounted for by the accused person.
(12) An offence which includes the possession of stolen
property, may be inquired into or tried by a Court within whose
local jurisdiction the offence was committed or the stolen
property was possessed by any person, having knowledge that
it is stolen property. (Nos. 8 to 12 are found in Section 181)
(13) An offence which includes cheating, if committed by
means of letters or telecommunication messages, may be
inquired into or tried by any Court within whose local
jurisdiction such letters or messages were sent or received.
(14) An offence of cheating and dishonestly inducing delivery
of the property may be inquired into or tried by a Court within
whose local jurisdiction the property was delivered by the
person deceived or was received by the accused person.
(15) Some offences relating to marriage such as Section 494,
IPC (marrying again during the life time of husband or wife) and
Section 495, IPC (committing the offence under Section 494
with concealment of former marriage) may be inquired into or
tried by a Court within whose local jurisdiction the offence was
committed or the offender last resided with the spouse by the
first marriage. (Nos. 13 to 15 are found in Section 182)
(16) An offence committed in the course of a journey or
voyage may be inquired into or tried by a Court through or into
whose local jurisdiction that person or thing passed in the
course of that journey or voyage. (Section 183).
(17) Cases falling under Section 219 (three offences of the
same kind committed within a space of twelve months whether
in respect of the same person or not), cases falling under Section
220 (commission of more offences than one, in one series of
acts committed together as to form the same transaction) and
cases falling under Section 221, (where it is doubtful what
offences have been committed), may be inquired into or tried by
any Court competent to inquire into or try any of the offences.
(Section 184).
21. Apart from Sections 177 to 184, which lay down in
elaborate detail, the rules relating to jurisdiction, Chapter XIII
of the Code also contains a few other sections. Section 185
empowers the State Government to order any case or class of
cases committed for trial in any district, to be tried in any
Sessions division. Section 186 empowers the High Court, in
case where 2 or more courts have taken cognizance of the same
offence and a question as to which of them should inquire into
or try the offence has arisen, to decide the district where the
inquiry or trial shall take place. Section 187 speaks of the
powers of the Magistrate, in case where a person within his
local jurisdiction, has committed an offence outside his
jurisdiction, but the same cannot be inquired into or tried
within such jurisdiction. Sections 188 and 189 deal with
offences committed outside India.
22. After laying down in such great detail, the rules relating
to territorial jurisdiction in Chapter XIII, the Code of Criminal
Procedure makes provisions in Chapter XXXV, as to the fate of
irregular proceedings. It is in that Chapter XXXV that one has
to search for an answer to the question as to what happens
when a court which has no territorial jurisdiction, inquires or
tries an offence.
23. Section 460 lists out 9 irregularities, which, if done in
good faith by the Magistrate, may not vitiate his proceedings.
Section 461 lists out 17 irregularities, which if done by the
Magistrate, will make the whole proceedings void. Clause (l) of
section 461 is of significance and it reads as follows:“
If any Magistrate, not being empowered by law in this
behalf, does any of the following things, namely:(
l) tries an offender:
This
proceedings shall be void”
24. Then comes Section 462, which saves the proceedings that
had taken place in a wrong sessions division or district or local
area. But this is subject to the condition that no failure of
justice has occasioned on account of the mistake. Section 462
reads as follows:
“462. Proceedings in wrong place. –
No finding, sentence or order of any Criminal
Court shall be set aside merely on the ground
that the inquiry, trial or other proceedings in the
course of which it was arrived at or passed,
took place in a wrong sessions division, district,
subdivision
or other local area, unless it
appears that such error has in fact occasioned a
failure of justice.”
25. A cursory reading of Section 461(l) and Section 462 gives
an impression that there is some incongruity. Under Clause (l)
of Section 461 if a Magistrate not being empowered by law
to try an offender, wrongly tries him, his proceedings shall be
void. A proceeding which is void under Section 461 cannot
be saved by Section 462. The focus of clause (l) of Section 461
is on the “offender” and not on the “offence”. If clause (l) had
used the words “tries an offence” rather than the words “tries
an offender”, the consequence might have been different.
26. It is significant to note that Section 460, which lists out
nine irregularities that would not vitiate the proceedings, uses
the word “offence” in three places namely clauses (b), (d) and
(e). Section 460 does not use the word “offender” even once.
27. On the contrary Section 461 uses the word ‘offence’ only
once, namely in clause (a), but uses the word “offender” twice
namely in clauses (l) and (m). Therefore, it is clear that if an
offender is tried by a Magistrate not empowered by law in that
behalf, his proceedings shall be void under Section 461. Section
462 does not make the principle contained therein to have force
notwithstanding anything contained in Section 461.
28. Section 26 of the Code divides offences into two
categories namely (i) offences under IPC and (ii) offences under
any other special law. Insofar as offences under the IPC are
concerned, Clause (a) of Section 26 states that they may be
tried by (i) the High Court or (ii) the Court of Session or (iii) any
other Court, by which such offence is shown in the first
Schedule to be triable. In respect of offences under any other
law, clause (b) of Section 26 states that they shall be tried by
the Court specifically mentioned in such special law. In case
the special law is silent about the Court by which it can be
tried, then such an offence may be tried either by the High
Court or by any other Court by which such offence is shown in
the first schedule to be triable.
29. But Clause (a) of Section 26 makes the provisions
contained therein, subject to the other provisions of the Code.
Therefore, a question arose before this Court in the State of
Uttar Pradesh Vs. Sabir Ali AIR 1964 SC 1673 as to
whether a conviction and
punishment handed over by a Magistrate of first class for an
offence under the Uttar Pradesh Private Forest Act, 1948 were
void, in the light of Section 15(2) of the Special Act. Section
15(2) of Uttar Pradesh Private Forest Act made the offences
under the Act triable only by a Magistrate of second or third
class. Though the entire trial in that case took place before a
Magistrate of second class, he was conferred with the powers of
a Magistrate of first class, before he pronounced the Judgment.
This Court held that the proceedings were void under Section
530(p) of the Code of Criminal Procedure, 1898 (as it stood at
that time). It is relevant to note that Section 461(l) of the Code
of 1973 is in pari materia with Section 530(p) of the Code of
1898.
30. What is now clause (a) of Section 26 of the Code of 1973,
is what was Section 28 of the Code of 1898. The only difference
between the two is that section 28 of the Code of 1898 referred
to the eighth column of the second schedule, but section 26(a)
of the Code of 1973 refers to the first schedule.
31. Similarly, clause (b) of Section 26 of the Code of 1973 is
nothing but what was Section 29 of the Code of 1898.
32. What is significant to note from the Code of 1898 and the
Code of 1973 is that the question of jurisdiction dealt with by
Sections 28 and 29 of the Code of 1898 and Section 26 of the
Code of 1973, is relatable only to the offence and not to the
offender. The power of a Court to try an offence is directly
governed by Clauses (a) and (b) of Section 26 of the Code of
1973, as it was governed by Sections 28 and 29 of the Code of
1898.
33. In other words, the jurisdiction of a criminal Court is
normally relatable to the offence and in some cases, to the
offender, such as cases where the offender is a juvenile (section
27) or where the victim is a women [the proviso to clause (a) of
section 26]. But Section 461(l) focuses on the offender and not
on the offence.
34. The saving clause contained in Section 462 of the Code of
1973 is in pari materia with Section 531 of the Code of 1898. In
the light of Section 531 of the Code of 1898, a question arose
before the Calcutta High Court in Ramnath Sardar Vs.
Rekharani Sardar (1975) Criminal Law Journal 1139,
as to the stage at which an objection to
the territorial jurisdiction of the court could be raised and
considered. In that case, the objection to the territorial
jurisdiction raised before a Magistrate in a petition for
maintenance filed by the wife against the husband, was rejected
by the Magistrate both on merits and on the basis of the saving
clause in Section 531. But the High Court held that Section
531 would apply only after the decision or finding or order is
arrived at by any Magistrate or Court in a wrong jurisdiction
and that if any objection to the territorial jurisdiction is taken
in any proceeding, it would be the duty of the Magistrate to deal
with the same.
35. In Raj Kumari Vijh Vs. Dev Raj Vijh AIR 1977 SC 1101,
which also arose
out of a case filed by the wife for maintenance against the
husband, the Magistrate rejected a prayer for deciding the
question of jurisdiction before recording the evidence. Actually
the Magistrate passed an order holding that the question of
jurisdiction must await the recording of the evidence on the
whole case. Ultimately the Magistrate held that he had
jurisdiction to entertain the application. One of the reasons why
he came to the said conclusion was that in the reply filed by the
husband there was no specific denial of the wife’s allegation
that the parties last resided together within his jurisdiction.
When the matter eventually reached this Court, this Court
relied upon the decision in Purushottam Das Dalmia Vs.
State of West BengalAIR 1961 SC 1589
to point out that there are two types of
jurisdictional issues for a criminal Court namely (i) the
jurisdiction with respect of the power of the Court to try
particular kinds of offences and (ii) its territorial jurisdiction.
36. It was specifically held by this Court in Raj Kumari Vijh
(supra) that the question of jurisdiction with respect to the
power of the Court to try particular kinds of offences goes to the
root of the matter and that any transgression of the same would
make the entire trial void. However, territorial jurisdiction,
according to this Court “is a matter of convenience, keeping in
mind the administrative point of view with respect to the work
of a particular court, the convenience of the accused and the
convenience of the witnesses who have to appear before the
Court.”
37. After making such a distinction between two different
types of jurisdictional issues, this Court concluded in that case,
that where a Magistrate has the power to try a particular
offence, but the controversy relates solely to his territorial
jurisdiction, the case would normally be covered by the saving
clause under Section 531 of the Code of 1898 (present Section
462 of the Code of 1973).
38. From the above discussion, it is possible to take a view
that the words “tries an offence” are more appropriate than the
words “tries an offender” in section 461 (l). This is because, lack
of jurisdiction to try an offence cannot be cured by section 462
and hence section 461, logically, could have included the trial
of an offence by a Magistrate, not empowered by law to do so,
as one of the several items which make the proceedings void. In
contrast, the trial of an offender by a court which does not
have territorial jurisdiction, can be saved because of section
462, provided there is no other bar for the court to try the said
offender (such as in section 27). But Section 461 (l) makes the
proceedings of a Magistrate void, if he tried an offender, when
not empowered by law to do.
39. But be that as it may, the upshot of the above discussion
is (i) that the issue of jurisdiction of a court to try an “offence”
or “offender” as well as the issue of territorial jurisdiction,
depend upon facts established through evidence (ii) that if the
issue is one of territorial jurisdiction, the same has to be
decided with respect to the various rules enunciated in sections
177 to 184 of the Code and (iii) that these questions may have
to be raised before the court trying the offence and such court
is bound to consider the same.
40. Having taken note of the legal position, let me now come
back to the cases on hand.
41. As seen from the pleadings, the type of jurisdictional
issue, raised in the cases on hand, is one of territorial
jurisdiction, atleast as of now. The answer to this depends upon
facts to be established by evidence. The facts to be established
by evidence, may relate either to the place of commission of the
offence or to other things dealt with by Sections 177 to 184 of
the Code. In such circumstances, this Court cannot order
transfer, on the ground of lack of territorial jurisdiction, even
before evidence is marshaled. Hence the transfer petitions are
liable to be dismissed. Accordingly, they are dismissed.
41. However, it is open to both parties to raise the issue of
territorial jurisdiction, lead evidence on questions of fact that
may fall within the purview of Sections 177 to 184 read with
Section 26 of the Code and invite a finding. With the above
observations the transfer petitions are dismissed. There will be
no order as to costs.
…..……......................J.
(V. Ramasubramanian)
SEPTEMBER 30, 2020
NEW DELHI
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