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the maintainability of the Writ Petition for quashing criminal proceedings more so when charge sheets have already been filed and the cases have been taken cognizance by the competent criminal Court and (ii) the scope of interference of this Court with the criminal proceedings. The consequential issue to be considered is whether this Court’s interference is warranted to quash the criminal proceedings in the present case.

The city overlooking the Beach Road. 4.Visakha...

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THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY 
WRIT PETITION No.18428 of 2009 

9-6-2011

M.B. Rajanikanth and another 

The State Inspector of Police,Visakhapatnam and others

Counsel for the petitioners: Sri B. Chinnapa Reddy

Counsel for respondents 1and2: Sri P.Kesava Rao 
Counsel for respondents 3-5:Sri Sampath Prabhakar for

 The petitioners, who are the former employees of the Vijaya Bank, a
nationalized Bank (for short, "the Bank") originally filed the present Writ
Petition seeking quashing of the First Information Report bearing
No.RCVSP2007A0021 of SPE : CBI, Visakhapatnam, dated 05.12.2007 and C.C.No.6 of 
2009 on the file of the Special Judge for CBI cases, Visakhapatnam by issue of a
writ of Mandamus. At the instance of the petitioners, the prayer has been
amended by including C.C.Nos.18 of 2010, 19 of 2010 and 20 of 2010 in the prayer
for being quashed.
 The facts, which are necessary for disposal of this Writ Petition, are
briefly set-out hereunder.
 Petitioner No.1 was the Manager and petitioner No.2 was the Assistant
Manager of the Bank of Patamata branch, Vijayawada. During their tenure at
Patamata branch, they faced allegations in connection with sanctioning and
disbursing of loans to a tune of Rs.57.95 lakhs in favour of eight borrowers on
the strength of fake and forged documents. Following a departmental enquiry,
the matter was entrusted to the Central Bureau of Investigation (CBI). On the
instructions of respondent No.2, respondent No.3 sent a report, which was
registered as FIR No. RCVSP2007A0021 by respondent No.1 on 05.12.2007 for the 
offences under Sections 120-B, 420 and 471 of the Indian Penal Code (IPC) and
under Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act,
1988 (for short, "the 1988 Act"). After a thorough investigation, respondent
No.1 has filed charge sheet No.2 of 2009 and the case was taken on file as
C.C.No.6 of 2009 by the Special Judge for CBI cases, Visakhapatnam for the
offences under Sections 120-B, 420, 468, 471 and 477-A IPC and Sections 13(2) 
read with Section 13(1)(d) of the 1988 Act. After the issue of process by the
Special Judge for CBI cases, the present Writ Petition is filed seeking quashing
of FIR and criminal proceedings.
 In their affidavit, the petitioners mainly averred that entrustment of the
case to CBI is contrary to circular No.173 of 2005, dated 24.09.2005, as under
the said circular, cases involving allegations of misappropriation of amount to
a tune of Rs.1 crore and above alone have to be referred to the CBI for
investigation and that therefore the investigation by the CBI and filing of
charge sheet by it is contrary to the said circular. The further averment which
constituted the basis for the Writ Petition is that in column No.XII of the
report dated 12.11.2007 of respondent No.3, it is mentioned that the case has
been referred to CBI, as the said agency has already been investigating into a
housing loan fraud case relating to the same branch in which the petitioners are
working and that as no such investigation relating to the Benz Circle branch,
Vijayawada, was pending and the investigation was relating to Eluru Road Branch,
Vijayawada, entrustment of the investigation to CBI is based on a factual
misconception. 
 A detailed counter-affidavit has been filed by the Inspector of Police,
CBI, Visakhapatnam branch, wherein a preliminary objection was taken on the
maintainability of the Writ Petition under Article 226 of the Constitution of
India for quashing the criminal proceedings. On merits, it is averred that the
petitioners have misinterpreted circular No.173 of 2005, which envisages that
the Chief Vigilance Officer in consultation with EMD may refer a case involving
amount less than Rs.1 crore or a case which cannot be classified on monetary
limits, to the CBI, if, in the opinion of the Chief Vigilance Officer the case
is of serious nature. It is further averred that as serious fraud is alleged
and the investigation revealed commission of such fraud, entrustment of the case
to CBI is justifiable in terms of the said circular. Respondent No.1 therefore
prayed for dismissal of the Writ Petition.
 I have heard Sri B. Chinnapa Reddy, learned counsel, who made elaborate
submissions for the petitioners; Sri P. Kesava Rao, learned Standing counsel for
CBI for respondent Nos.1 and 2 and Sri Sampath Prabhakar, who represented Sri 
E.Ajay Reddy, for respondent Nos.3 to 5.
 The respective pleadings of the parties throw up two issues, namely; (i)
the maintainability of the Writ Petition for quashing criminal proceedings more
so when charge sheets have already been filed and the cases have been taken 
cognizance by the competent criminal Court and (ii) the scope of interference of
this Court with the criminal proceedings. The consequential issue to be
considered is whether this Court's interference is warranted to quash the
criminal proceedings in the present case.
 Investigation into a criminal offence, it is trite, falls within the
exclusive domain of the executive. One of the core functions of the police,
which forms part of the State executive, is registration of first information
report on receipt of information relating to commission of an offence cognizable
or otherwise and cause investigation on such information in accordance with the
procedure laid down by Chapter XII of the Code of Criminal Procedure, 1973 (for
short, "the Code"). The Courts seldom interfere with this core function of the
police. The superior Courts, however, which possess inherent powers, which fact
received statutory recognition in the successive codes of criminal procedure
(Section 561-A of the Code of Criminal Procedure, 1898 and Section 482 of the
Code of Criminal Procedure, 1973), do interfere with the criminal proceedings
even at the investigation stage for one or more of the three purposes, namely;
(i) to give effect to an order under the Code, (ii) to prevent abuse of the
process of Court, and (iii) to otherwise secure the ends of justice, as
envisaged under Section 482 of the Code. The leading case on this point is
Emperor vs. Khwaja Nazir Ahmed1. This oft-quoted judgment, which formed the 
basis for several subsequent Supreme Court judgments, laid down that the police
have statutory right to investigate into an offence and the Courts including the
High Courts can interfere under its inherent powers only when a charge has been
preferred and not before. The Privy Council, however, made an exception to its
view by holding that such non-interference by Courts at the stage of
investigation is subject to the right of the Court to intervene in an
appropriate case under Section 491 of the Code of 1898 to give directions in the
nature of habeas corpus. This view was followed by the Apex Court in State of
Bihar vs. J.A.C. Saldanha2, wherein it was held:
 "25. There is a clear-cut and well demarcated sphere of activity in the
field of crime detection and crime punishment. Investigation of an offence is
the field exclusively reserved for the executive through the Police Department
the superintendence over which vests in the State Government. The executive
which is charged with a duty to keep vigilance over law and order situation is
obliged to prevent crime and if an offence is alleged to have been committed it
is its bounden duty to investigate into the offence and bring the offender to
book. Once it investigates and finds an offence having been committed it is its
duty to collect evidence for the purpose of proving the offence. Once that is
completed and the investigating officer submits report to the Court requesting
the Court to take cognizance of the offence under Section 190 of the Code its
duty comes to an end. On a cognizance of the offence being taken by the Court
the police function of investigation comes to an end subject to the provision
contained in Section 173(8), there commences the adjudicatory function of the
judiciary to determine whether an offence has been committed and if so, whether
by the person or persons charged with the crime by the police in its report to
the Court, and to award adequate punishment according to law for the offence
proved to the satisfaction of the Court. There is thus a well defined and well
demarcated function in the field of crime detection and its subsequent
adjudication between the police and the Magistrate. This has been recognized
way back in Emperor v. Khwaja Nazir Ahmad......

 26. This view of the Judicial Committee clearly demarcates the functions
of the executive and the judiciary in the field of detection of crime and its
subsequent trial and it would appear that the power of the police to investigate
into a cognizable offence is ordinarily not to be interfered with by the
judiciary."

 In S.N. Sharma v. Bipen Kumar Tiwari3, the Supreme Court took the view
that the power of the police to investigate any cognizable offence is
uncontrolled by the Magistrate and it is only in cases where the police decide
not to investigate the case, can the Magistrate intervene and either direct an
investigation, or, in the alternative, himself proceed or depute a Magistrate
subordinate to him to proceed to enquire into the case. The Court, however,
added a rider in paragraph 11 of the judgment and held:
 "11. ....... though the Code of Criminal Procedure gives to the police
unfettered power to investigate all cases where they suspect that a cognizable
offence has been committed, in appropriate cases an aggrieved person can always
seek a remedy by invoking the power of the High Court under Article 226 of the
Constitution under which, if the High Court could be convinced that the power of
investigation has been exercised by a police officer mala fide, the High Court
can always issue a writ of Mandamus restraining the police officer from misusing
his legal powers."

 In State of W.B. v. S.N. Basak4, the Supreme Court restated the principle
that the police have statutory right to investigate into the circumstances of
any alleged cognizable offence without authority from a Magistrate and that
power of the police to investigate cannot be interfered with by the exercise of
power under the inherent power of the High Court.
 In Hazari Lal Gupta vs. Rameshwar Prasad5, the Supreme Court held that the 
High Court can quash proceedings while exercising jurisdiction under Section
561-A of the Criminal Procedure Code, 1898, if there is no legal evidence or if
there is any impediment to the institution or continuance of proceedings, but
the High Court does not ordinarily enquire as to whether the evidence is
"reliable or not".
 In Nirmaljit Singh Hoon vs. State of W.B.6, the Supreme Court held:
 "35. ......the police authorities have under Sections 154 and 156 of the
Code a statutory right to investigate into a cognizable offence without
requiring any sanction from a judicial authority and even the High Court has no
inherent power under Section 561-A of the Code to interfere with the exercise of
that statutory power."
 In State of W.B. vs. Sujit Kumar Rana7, the Supreme Court held that the
power under Section 482 of the Code can be exercised by the High Court in
relation to a matter pending before a criminal Court or where a power is
exercised by the Court under the Code of Criminal Procedure.
 In Kurukshetra University vs. State of Haryana8, while dealing with the
scope of the High Court's power under Section 482 of the Code, the Supreme Court
observed that inherent powers do not confer an arbitrary jurisdiction on the
High Court to act according to whim or caprice and that the statutory power has
to be exercised sparingly with circumspection and in the rarest of the rare
cases. 
 Upon reviewing the entire case law on the subject, a two Judge Bench of
the Supreme Court in Divine Retreat Centre vs. State of Kerala and others9 inter
alia held as under:
 "In our view, there is nothing like unlimited arbitrary jurisdiction
conferred on the High Court under Section 482 of the Code. The power has to be
exercised sparingly, carefully and with caution only where such exercise is
justified by the tests laid down in the section itself. It is well settled that
Section 482 does not confer any new power on the High Court but only saves the
inherent power which the Court possessed before the enactment of the Code.
There are three circumstances under which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an order under the Code, (ii) to
prevent abuse of the process of Court, and (iii) to otherwise secure the ends of
justice."

 In Gudavalli Murali Krishna vs. Gudavalli Madhavi10, a learned Judge of
this court (T. Surya Rao, J.) was faced with precisely the same question as has
been framed in this case, namely; whether a Writ Petition under Article 226 is a
proper and appropriate remedy for interference with a pending criminal
proceeding. The learned Judge has noticed two conflicting judgments on this
issue: Hasan AH Khan vs. State of A.P. (1992 (1) ALT 146), wherein a learned
Single Judge held that criminal proceedings can be quashed by the High Court
under its inherent power under Section 482 Cr.P.C., which can be invoked only
after initiation of criminal proceedings by filing a charge sheet but not at the
investigation stage and where the investigation is taken up by the police on the
basis of the FIR and other material which do not disclose any cognizable offence
or mala fide or any colourable exercise of power any person aggrieved can invoke
the jurisdiction of the High Court under Article 226 of the Constitution to
quash the FIR and the investigation. In S. Sarat Babu Chowdary vs. Inspector of
Police (1992 (3) ALT 454), a Division Bench of this Court held that High Court
cannot quash FIR under Section 482 Cr.P.C. and equally it cannot exercise such a
power under Article 226 by applying the principle that what it cannot do under
Section 482 Cr.P.C., it cannot do the same under Article 226 of the
Constitution. After an exhaustive consideration of the case law holding the
field, the learned Judge held:
 "From the conspectus of the above judgments, it is manifest that the
inherent powers of the High Court under Section 482 of the Cr.P.C. can be
invoked to quash the proceedings even at the threshold - be it a FIR or a
complaint or a charge-sheet.
 The inherent powers to be exercised by the High Court under Section 482 of
the Cr.P.C. is efficacious remedy. When such an efficacious alternative remedy
is available, the High Court should be loath and circumspect to exercise its
extraordinary jurisdiction under Article 226 of the Constitution."

 In Reckitt and Benckiser (India) Ltd., New Delhi vs. State of Andhra
Pradesh, rep., by Drugs Inspector, Hyderabad11 another learned Single Judge of
this court (V.V.S. Rao, J.) considered the same question once again in the light
of the decided case law beginning with Emperor vs. Khwaja Nazir Ahmed (AIR 1945 
PC 18) and including the judgments of the Apex Court in R.P. Kapoor vs. State of
Punjab (AIR 1960 SC 866), State of Haryana vs. Bhajan Lal (AIR 1982 SC 604),
State of West Bengal vs. Swapan Kumar Guha (AIR 1982 SC 949), State of Himachal 
Pradesh vs. Pirthi Chand ((1996) 2 SCC 37), Zandu Pharmaceutical Works Ltd., vs.
Mohd. Sharaful Haque ((2005) 1 SCC 122) and Pepsi Foods Limited vs. Special 
Judicial Magistrate ((1998) 5 SCC 749). The learned Single Judge has summarized
his conclusions in para 12 of the judgment as under:
 "In view of the case law as above, it may be taken as well settled that
having regard to the safeguards provided in Cr.P.C. including the power vested
in the High Court to quash an FIR or criminal proceedings, ordinarily a Writ
Petition under Article 226 of Constitution of India would not lie. In
appropriate cases, however, there cannot be sustainable objection for the High
Court treating a petition under Article 226 of Constitution of India as one
under Article 227 and/or under Section 482 of Cr.P.C. Even while doing so, the
law requires the Court not to interfere with investigation at the stage of FIR,
or criminal proceedings during the trial especially when prima facie triable
criminal case is made out. It is also axiomatic that while exercising power
under Section 482 Cr.P.C. or Article 227, the High Court does not act as an
appellate authority or inquisitorial/investigatory authority. High Court cannot
even give directions to the police to initiate criminal action and/or
investigate the case in particular manner (see Divine Retreat Centre vs. State
of Kerala ((2008) 3 SCC 542)."

 The preponderance of the judicial opinion reflected in the case law
referred to above does not favour Courts' interference at the investigation
stage. However, in exceptional circumstances where the ingredients of Section
482 were satisfied, the High Courts may interfere with the investigation by
invoking its inherent powers. When such a power is available with the High
Court, I do not find any reason for an aggrieved party to invoke the
jurisdiction of this Court under Article 226 of the Constitution of India and I
am in respectful agreement with the views of my learned Brothers T.Ch.Surya Rao,
J., and V.V.S.Rao, J., that ordinarily a Writ Petition under Article 226 of the
Constitution of India would not lie to quash either a FIR or a criminal
proceeding and in appropriate cases the High Court can exercise its power under
Section 482 Cr.P.C. for this purpose. I have, therefore, no hesitation to hold
that this Writ Petition filed invoking the jurisdiction of this Court under
Article 226 of the Constitution is wholly misconceived.
 As this Writ Petition is pending since 2009 and there is already an order
of stay, I find it wholly inappropriate to relegate the petitioners to invoke
the jurisdiction of this Court under Section 482 Cr.P.C. Instead, I deem it
necessary to consider this case from the stand point of Section 482 Cr.P.C. to
put a quietus to this litigation.
The inherent power of this Court to quash a FIR or a criminal investigation is
well defined by various judicial precedents, some of which have already been
referred to hereinbefore. Instead of burdening this judgment with the entire
case law on the subject, it would be appropriate to refer to a few judgments,
which reflect the core judicial principles in this regard.
 In State of Haryana and others vs. Bhajan Lal and others12 the Supreme
Court laid down broad guidelines for exercise of the inherent powers of the High
Courts to quash FIR or criminal proceedings, which are as under:
"1. Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused. 

2. Where the allegations in the first information report and other materials,
if any, accompanying the FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused. 

4. Where the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated under Section
155(2) of the Code.

5. Where the allegations made in the Fir or complaint are so absurd and
inherently improbable on the basis of which no prudent person can even reach a
just conclusion that there is sufficient ground for proceeding against the
accused. 

6. Where there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge."

 In State of Orissa vs. Saroj Kumar Sahoo13, the Supreme Court laid down
the following propositions:
"1. The exercise of power under Section 482 Cr.P.C. is the exception and not
the rule. The section does not confer any new powers on the High Court. It
only saves the inherent power which the Court possessed before the enactment of
Cr.P.C. It envisages three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order under Cr.P.C., (ii) to
prevent abuse of the process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down any inflexible rule
which would govern the exercise of inherent jurisdiction. No legislative
enactment dealing with procedure can provide for all cases that may possibly
arise.

2. While exercising the powers under Section 482 Cr.P.C., the High Court does
not function as a Court of appeal or revision. Inherent jurisdiction under the
section, through wide, has to be exercised sparingly, carefully and with caution
and only when such exercise is justified by the tests specifically laid down in
the section itself. It is to be exercised ex debito justitiae to do real and
substantial justice for the administration of which alone the Courts exist.
Authority of the Court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the Court has the power
to prevent abuse. It would be an abuse of process of the Court to allow any
action which would result in injustice and prevent promotion of justice. In
exercise of the powers the Court would be justified to quash any proceeding if
it finds that initiation/continuance of it amounts to abuse of the process of
Court or quashing of these proceedings would otherwise serve the ends of
justice.

3. The inherent power should not be exercised to stifle a legitimate
prosecution. The High Court being the highest Court of a State should normally
refrain from giving a prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not been collected and 
produced before the Court and the issues involved, whether factual or legal, are
of magnitude and cannot be seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be laid down in regard to cases
in which such power can be exercised can be laid down."

 In A.V. Mohan Rao vs. M. Kishan Rao14, the Supreme Court held: 
 "Reading of the complaint petition and the materials produced by the
complainant with it in the light of provisions in the aforementioned sections,
it cannot be said that the allegations made in the complaint taken in entirety
do not make out, even prima facie, any of the offences alleged in the complaint
petition. We refrain from discussing the merits of the case further since any
observation in that regard may affect one party or the other. The allegations
made are serious in nature and relate to the Power Company registered under the
Act having its head office in this country. Whether the appellants were or were
not citizens of India at the time of commission of the offences alleged and
whether the offences alleged were or were not committed in this country, are
questions to be considered on the basis of the evidence to be placed before the
Court at the trial of the case. The questions raised are of involved nature,
determination of which requires enquiry into facts. Such questions cannot be
considered at the preliminary stage for the purpose of quashing the complaint
and the proceeding initiated on its basis."

 In State of Karnataka vs. M. Devendrapa15, the Supreme Court reiterated
its earlier judgments and held that while exercising jurisdiction under Section
482 of the Code, the High Court would not ordinarily embark upon an enquiry
whether an evidence in question is reliable or not or whether on a reasonable
appreciation of it, accusation would not be sustained and that is the function
of the trial Judge. The Supreme Court further held that Courts should be
circumspect and judicious in exercising discretion and the High Court, being the
highest Court of the State, would normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court and the issues
involved, whether factual or legal, are of high magnitude and cannot be seen in
their true perspective without sufficient material. The Supreme Court concluded
that in proceedings instituted on a complaint, exercise of the inherent powers
to quash the proceedings is called for only in a case where the complaint does
not disclose any offence or is frivolous, vexatious or oppressive.
 On applying the settled legal position to the case on hand, I do not find
any ground for interference even while exercising inherent powers of this Court
under Section 482 of the Code. The petitioners are facing serious charges of
criminal conspiracy, forgery for the purpose of cheating, using a forged
document as genuine and criminal misconduct. Unless a full dressed trial is
held, it is not possible to conclude whether the charges against the petitioners
are proved or not. As noted hereinabove, the main ground urged for quashing the
criminal proceedings is that entrustment of criminal case to CBI is contrary to
circular No.173 of 2005. In the counter affidavit the relevant portion of the
circular is extracted, which reads :
 "The CVO in consultation with CMD may refer a case involving less than Rs.
One crore or a case which cannot be classified on monetary limits, to the CBI,
if, in the opinion of the CVO, the case is of serious nature."

 It thus appears that while ordinarily the cases involving monetary value
of one crore and above are entrusted to CBI for investigation, the same is not
an inviolable rule and in appropriate cases the Chief Vigilance Officer in
consultation with CMD may refer the cases of the value of less than one crore to
the CBI where in the opinion of the CVO the case is of serious nature. It is
not the pleaded case of the petitioners that the cases are not of serious
nature. Unless the petitioners raise proper pleadings and file material in
support thereof, it is not possible for this Court to render a finding as to
whether the cases are of serious nature or not for entrustment of investigation
to CBI.
The only other ground on which the petitioners sought for quashing the FIRs and
the investigation is that the cases were referred on a misconception that a
similar case pertaining to the branch in which they are working was already
entrusted to CBI and the investigation into the same is pending. Even assuming
that the investigation pending is related to another branch, in my opinion, that
would hardly make any difference and at any rate the mistake, if any committed
does not constitute a jurisdictional aspect on which this Court would interfere
with the decision of the Bank to entrust the investigation to CBI. Indeed, I do
not perceive any prejudice being caused to the petitioners if the investigation
is carried on by CBI, which is the highest investigating agency in the country.
On the contrary, being the premier investigating agency, it is expected to
follow the higher standards of investigation by which the petitioners, if at
all, stand to gain.
 For all the abovementioned reasons, the petitioners failed to make out any
case for interference by this Court with the pending criminal proceedings and
the Writ Petition is accordingly dismissed.
 As a sequel to dismissal of the Writ Petition, interim stay granted on 11-
9-2009 is vacated and W.P.M.P.Nos.16381/2010, 24115/2009, 8803/2011 and 
8805/2011 are dismissed. ?1 AIR 1945 PC 18 
2 (1980) 1 SCC 554 
3 (1970) 1 SCC 653 
4 AIR 1963 SC 447 
5 (1972) 1 SCC 452 
6 (1973) 3 SCC 753 
7 (2004) 4 SCC 129 
8 (1977) 4 SCC 451 
9 (2008) 3 SCC 542 
10 2001 (1) ALD (Crl.) 689
11 2009 (2) ALT 562 
12 1992 Suppl (1) SCC 335 
13 (2005) 13 SCC 540 
14 (2002) 6 SCC 174 
15 (2002) 3 SCC 89 
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