Calcutta High Court (Appellete Side)
Sital Prasad Shaw @ Gupta & Another vs Ashish Bhattacharya & Another on 23 April, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 1770 of 2011
With
CRAN 1/2024
Sital Prasad Shaw @ Gupta & Another
Versus
Ashish Bhattacharya & Another
For the Petitioners : Mr. Sudipto Moitra, Ld. Sr. Adv.
Mr. Ashok Das, Adv.
Mr. Vijay Verma, Adv.
Mr. Dwaipayan Biswas, Adv.
For the Opposite Party No. 1 : Mr. Nandalal Singhania, Ld. Sr. Adv. (via VC)
Mr. R. Chakraborty, Adv.
Heard on : 21.03.2025
Judgment on : 23.04.2025
2
Ajay Kumar Gupta, J:
1. This instant Criminal Revisional application has been filed
by the petitioners under Section 401 read with Section 482 of the
Code of Criminal Procedure, 1973 seeking for quashing of the
proceeding being Case No. C-472/82 corresponding to Trial No.
63/83 under Section 3(a) of the Railway Property (Unlawful
Possession) Act pending before the Court of Learned Magistrate, 5th
Court at Barrackpore, North 24-Parganas.
2. The brief facts are relevant for the purpose of disposal of this
case as under:
2a. A complaint case was filed before the then Sub-Divisional
Judicial Magistrate, Barrackpore, 24 Parganas by the opposite party
no. 1 alleging, inter alia, that on 10.07.1982, the complainant along
with others conducted a search in the shop -cum- godown of the
petitioner no. 1 and seized some railway properties suspected to be
stolen or unlawfully obtained and the petitioner no. 2 was present at
the time of purported search and seizure. Hence, a case was
registered being Case No. C-472/82 corresponding Trial No. 63/83
under Section 3(a) of the Railway Property (Unlawful Possession) Act.
2b. It is the contention of the petitioners that no charge was
framed till 1994 therefore, the opposite party no. 1/complainant
3
violated the specific mandate of the Code of Criminal Procedure as
provided under Section 245 (3) of the CrPC as such accused is
entitled to be discharged from the proceedings.
2c. The petitioners had filed a petition for discharge on the
ground of none framing of charge even after expiry of 4 years on
23.11.1993 but the Learned Trial court rejected their prayer for
discharge vide order dated 21.02.1994.
2d. Feeling aggrieved and dissatisfied with, the petitioners
challenged the said impugned order dated 21.02.1994 for violation of
the mandatory provision as contemplated under Section 245 (3) of
the CrPC by filing a Criminal Revisional application being Crl. Rev.
No. 1458/94. On 23.06.1994, after hearing, the then Hon'ble Judge
issued a rule and further stayed the proceedings.
2e. The said Criminal Revisional application came up for hearing
finally before the Hon'ble Justice Alok Kumar Basu (as His Lordship
then was). But, due to non-appearance on behalf of the petitioners,
the said application was dismissed for default vide order dated
19.12.2003 and the order of stay was also vacated.
2f. The recording of evidence before the charge was closed on
19.04.1993 and, thereafter, date was fixed for framing of charges but
no charge was framed on the schedule date. Thereafter, consecutive
4
dates were fixed for framing of charge but no charge was framed.
However, finally charge was framed on 02.05.1994
2g. Even after vacating the stay order passed by the Hon'ble
Court on 19.12.2003. The Opposite party no.1 did not take any
positive steps to conclude the evidence as such accused is entitled to
discharge from the case in terms of Section 245 (3) of the CrPC as
such petitioner filed this instant revisional application with a prayer
for quashing of the proceedings, Hence, this Criminal Revisional
application.
SUBMISSION ON BEHALF OF THE PETITIONERS:
3. Mr. Maitra, learned senior counsel, appearing on behalf of
the petitioners vehemently argued and submitted that even the order
of stay was vacated by the Hon'ble High Court as far back in the year
2003 till 2010, no evidence after charge was closed by the
prosecution. The Learned Magistrate fixed the dates for the High
Court's order. Petitioners ultimately got the Xerox certified copy of the
said order of dismissal of revisional application in first week of
December, 2010 and produced the same before the Learned
Magistrate.
3a. Admittedly, charge could not be framed till 01.05.1994 and,
thereafter, till date no evidence after charge has been completed as
5
such, the petitioners herein are entitled to discharge from the case
only on the sole ground that the charge could not be framed before
expiry of 4 years from the date of appearance of the accused or even
from the date of amendment of Section 245 of the CrPC came into
effect i.e. from 2nd May, 1989. Prosecution had also not taken any
step either to produce the order of this Hon'ble High Court or
apprised the Court regarding dismissal. Therefore, the instant case
falls under the purview of Section 245(3) of the CrPC. There is an
embargo to proceed with the case any further.
3b. It was further submitted that under the adversary system of
Justice delivery process, the prosecution ought to have shown its
interest in prosecuting the petitioners in connection with the
impugned proceeding but, the role of the prosecution is
unprecedented and as such, all further proceeding would be mere
miscarriage of justice. As the case was registered in the year 1982
and already 43 years have been elapsed and delay in disposing of the
matter could not be attributed to the accused/petitioners. The order
passed by the Learned Magistrate demonstrates the lackadaisical
approach of the prosecution that they are not keen to dispose of the
matter or to prove the case against the present petitioners. Therefore,
the accused/petitioner is entitled to discharge from the aforesaid
proceeding on the ground of delay under Section 245(3) of the CrPC.
6
Finally, he prays for quashing of the proceeding for an abuse of
process of law. To bolster is submission, the learned senior counsel
has placed reliance on two judgments as under: -
i. Syed Mohammad Hasan Vs. K.C. Das, Deputy
Chief Controller of Import & Export1 particularly
paragraph nos. 6, 8, 10 and 11;
ii. Sree Ram Trading and Supply Co. & Anr. Vs.
The State & Anr.2 particularly paragraph nos. 7, 8,
9, 13 and 15.
3c. In the first judgment, the Hon'ble Calcutta High Court held
in paragraph nos. 6, 8, 10 and 11 as under: -
"6. The first point for consideration in this case is
whether there was any obligation for the Learned
Magistrate to apply the provisions of Sub-section (3) of
Section 245 before framing of charge against the
accused on 12.12.89. The (West Bengal Amendment)
Act, 1988 of the Criminal Procedure Code is extracted
below:
GOVERNMENT OF WEST BENGAL
LAW DEPARTMENT
Legislative.
NOTIFICATION.
1
1991 C Cr LR (Cal) 99;
2
1993 C Cr LR (Cal) 139
7
No. 548-L- 14th March, 1989. The following Act of the
West Bengal Legislature, having been assented to by
the President of India, is hereby published for general
information:
THE CODE OF CRIMINAL PROCEDURE (WEST
BENGAL AMENDMENT) ACT,
1988
West Bengal Act XXIV of 1988
(Passed by the West Bengal Legislature).
(Assent of the President of India was first
published in the Calcutta Gazette, Extraordinary, of
the 14th March, 1989).
An act to amend the Code of Criminal Procedure,
1973 in its application to West Bengal.
WHEREAS it is expedient to amend the Code of
Criminal Procedure, 1973 (2 of 1974), in its
application to West Bengal, for the purposes and in
the manner hereinafter appearing;
It is hereby enacted in the Thirty-ninth Year of the
Republic of India, by the Legislature of West Bengal
as follows:
1. Short title and commencement. --(1) This Act
may call the Code of Criminal Procedure (West Bengal
Amendment) Act, 1988.
(2) It shall come into force on such date as the
State Government may, by notification in the Official
Gazette, appoint.
2. Application of the Act. --The Code of Criminal
Procedure, 1973 (hereinafter referred to as the
8
principal Act) shall, in its application to West Bengal,
be amended for the purposes and in the manner
hereinafter provided.
*****
5. Amendment of Sub-section (2), Section 245. –In
Section 245 of the principal Act, after Sub-section (2),
the following sub-section shall be inserted: –
“(3) If all the evidence referred to in Section 244 are
not produced in support of the prosecution within four
years from the date of appearance of the accused, the
Magistrate shall discharge the accused unless the
prosecution satisfies the Magistrate that upon the
evidence already produced and for special reasons
there is ground for presuming that it shall not be in
the interest of justice to discharge the accused.
By order of the Governor,
S.N. Mukherjee
Secretary to the Govt, of West Bengal”
8. On a perusal of Section 5 of the above Amendment
Act by which a new Sub-section (3) has been inserted
after Sub-section (2) of Section 245 we are of the view
that it is a provision beneficial to the accused persons.
Moreover, is a procedural statute and in view of the
well settled principle of interpretation of statute such
amended provision whose primary object is to avoid
delay in trial and is in consonance with the
fundamental rights enshrined in Article 21 of the
Constitution will be applicable to all pending Criminal
9Proceedings for trial of offences under Chapter 19 of
the Criminal Procedure Code for trial of warrant cases
instituted otherwise than on police report.
10. We are satisfied that Sub-section (3) of Section
245 of the Criminal Procedure Code which is a
procedural enactment enacted for the benefit of the
accused would apply to all warrant cases instituted
otherwise than on police report on the date when the
above provision came into force. Admittedly, on 2nd
May, 1989 the charge has not been framed against
the accused persons. But on behalf of the respondent,
it is contended that as long prior to the date on which
the above provision came into force all the evidence
before charge have been concluded on 7th February,
1989 then there was no obligation for the learned
Magistrate as on 2nd May, 1989 to apply the
provision of the Sub-section (3) of Section 245,
Criminal Procedure Code because on the date charge
had been concluded. There can be no doubt that in
order to attract Sub-section (3) of Section 245 the
primary condition is that all evidence before charge
were not produced in support of the prosecution.
There is no doubt as is gathered from the record of
the learned Trial Judge that on 7th February, 1989
with the examination of the 26th witness of the
prosecution the evidence before charge was
concluded and the learned Magistrate fixed a date for
consideration of the framing of the appropriate
10charges against the accused. However, the record
reveals that the said date for consideration of the
framing of the proper charges were adjourned from
time to time and the charges had admittedly been
framed long thereafter that is on 12.12.89. So, it is
clear that prior to the date on which Sub-section (3) of
Section 245 came into force all the evidence before
charge were produced by the prosecution. Mr. Ghosh,
however, concedes that fact but he urges that when
the Act came into force the learned Magistrate had to
apply Sub-section (3) of Section 245 because when
the period of four years from the date of appearance
of the accused had expired on 26.1.88, all evidence
before charge had not been concluded.
11. We are unable to hold that such a contention is
acceptable. If that were to be acceptable then we
shall have to hold that the Sub-section (3) of Section
245 have been given any retrospective effect. As there
is nothing in the Act to suggest that it has been given
a retrospective effect then we must hold that the
amendment is prospective in nature and the learned
Magistrate in the matter of such warrant cases
instituted otherwise than on police report has to apply
Sub-section (3) of Section 245 if on the date on which
the above provision came into force, the period of four
years had expired and the evidence before charge
had not been concluded on the date on which the
above provision came into force. When admittedly in
11this case Sub-section (3) came into force on a date
before which all evidence before charge had been
concluded, we are unable to hold that any right had
accrued, to the petitioner in this case to be discharged
under Sub-section (3) of Section 245 unless the
Magistrate, regard being had to the evidence already
produced and for special reasons, decides to continue
the proceeding. On the date Sub-section (3) of Section
245 came into force there was no scope for the
learned Magistrate to decide that question because
evidence on that date had already been concluded
and even prior to that date the date had already been
fixed for framing of the charge. In that view of the
matter, we are unable to accept the first contention
raised by the petitioner.”
3d. In the second judgment, the Hon’ble Calcutta High Court
held in paragraph nos. 7, 8, 9, 13 and 15 as under: –
“7. Section 245 of the Code has also been amended
by the aforesaid Amendment Act by inserting Sub-
section (3) after Sub-section (2) in the following
manner:
“In Section 245 of the principal Act, after Sub-
section (2), the following sub-section shall be
inserted: –
(3) If all the evidence referred to in Section
244 are not produced in support of the
prosecution within four years from the date
of appearance of the accused, the Magistrate
12shall discharge the accused unless the
prosecution satisfies the Magistrate that
upon the evidence already produced and for
special reasons there is ground for
presuming that it shall not be in the interest
of justice to discharge the accused.”
8. The aforesaid procedural enactment has clearly
been enacted for the benefit for the accused, whose
primary object is to avoid delay in trial, in consonance
with the fundamental rights guaranteed under Article
21 of the Constitution.
9. In its plain language, plainly read, Section 245(3) of
the Code gives a mandate to the Magistrate (in cases
instituted otherwise than on police report) to make an
order of discharge of the accused unless the
prosecution satisfies the Magistrate that upon the
evidence already produced and for special reasons
there is ground for presuming that it shall not be in
the interest of justice to discharge the accused ; the
way the Magistrate is required to make an order
stopping further investigation into the offence and
discharge the accused unless the officer making
investigation satisfies the Magistrate that for special
reasons and in the interest of justice the continuation
of the investigation beyond the periods mentioned in
Sub-section (5) of Section 167 of the Code is
necessary, obviously implying that the satisfaction of
the Magistrate (in both the cases) must take place
13
before the expiry of the periods mentioned in the
aforesaid provisions.
13. Since the aforesaid Amendment Act of 1988 has
been enacted for the benefit of the accused with the
primary object to avoid delay in trial in consonance
with the fundamental rights enshrined in Article 21 of
the Constitution, as indicated above, it must be held
in keeping with the aforesaid decisions that the
satisfaction of the Magistrate under Section 245(3) of
the Code must take place before the expiry of four
years from the date of appearance of the accused in
respect of cases thereunder. With the aforesaid
relevant amended provision of the Code, such as they
are, there could be little mistaking that the power that
has been given to a Magistrate to permit continuation
of further proceedings beyond the period of four years
from the date of appearance of the accused in cases
instituted otherwise than on police report has to be
exercised before the expiry of the said period. Any
direction by the Magistrate to continue the
proceedings after the aforesaid period without being
satisfied by the prosecution that upon the evidence
already produced and for special reasons there is
ground for presuming that it shall not be in the
interest of justice to discharge the accused, in breach
of the provisions of Section 245(3), would clearly be
without jurisdiction, rendering the subsequent
proceedings as well without jurisdiction.
14
15. Even though the accused is not required to raise
any objection in such matter, the obligation to satisfy
the learned Magistrate under Section 245(3) solely
lying upon the prosecution, a petition appears to have
been filed by the accused-petitioners on 14.1.91
before the learned Magistrate under Section 245(3) of
the Code praying for their discharge on the failure of
the prosecution to examine all the witnesses within
four years from the date of their appearance. The said
petition had been fixed by the learned Magistrate on
1.4.91 for hearing. A copy of the said petition appears
to have been served by the accused-petitioners upon
the prosecution. It was only then that wisdom had
dawned upon the prosecution who had thereupon
summoned the witnesses for their
examination/evidence in the case on 1.4.91, though
the said date was fixed for hearing of the aforesaid
petition filed by the accused-petitioners on 14.1.91,
and not for evidence of the prosecution witnesses.”
SUBMISSION ON BEHALF OF THE OPPOSITE PARTY NO. 1:
4. Learned senior counsel Mr. Singhania appearing through
virtual mode on behalf of the opposite party no. 1 vehemently
opposed the prayer of the petitioners for discharge and/or quashing
of the proceedings and submitted that actually, some railway
15properties worth of Rs. 5,000/- were found in the possession of the
accused persons but they failed to produce any valid documents.
Accordingly, the opposite party no. 1 has filed complaint before the
Learned Court below in the year 1982. Evidence before the charge
was closed in the year 1993 and charge was framed in the year 1994.
Already three prosecution witnesses have been examined after
framing of charge. The delay was caused due to stay of the proceeding
granted by the Hon’ble High Court in the Criminal Revision
application filed by the petitioner before the Hon’ble High Court at
Calcutta. Therefore, Section 245 (3) of the CrPC is not at all
applicable in the present case. The counting of 4 years starts from
the date of charge framed i.e., from 1994. The prosecution has
examined three witnesses after the charge. When the delay is actually
due to the petitioners/accused, the question of discharge of the
accused or quashing of the proceeding does not and cannot arise. To
support of his contention, he also relied a judgment passed in the
case of Santosh De and Anr. Vs. Archna Guha and Ors.3
particularly paragraph nos. 7 and 15 thereof where the Hon’ble
Supreme Court held as under:
“7. In this case, the accused appeared in the court for
the first time on November 5, 1977. All the evidence3
(1994) 2 SCC 420
16on behalf of the complainant-prosecution has
admittedly not been adduced within four years
therefrom. But it must be remembered, sub-section (3)
was not on the statute book in the years 1981 or
1982. It was inserted only in the year 1988. We shall
assume for the purpose of this case that the four
years’ period prescribed by Section 245(3) must be
deemed to have expired on the date the said sub-
section was inserted and deal with the appellants’
submissions on that basis.
15. The facts of this case impel us to say how easy it
has become today to delay the trial of criminal cases.
An accused so minded can stall the proceedings for
decades together, if he has the means to do so. Any
and every single interlocutory is challenged in the
superior courts and the superior courts, we are
pained to say, are falling prey to their stratagems. We
expect the superior courts to resist all such
attempts. Unless a grave illegality is committed, the
superior courts should not interfere. They should
allow the court which is seized of the matter to go on
with it. There is always an appellate court to correct
the errors. One should keep in mind the principle
behind Section 465 CrPC. Any and every irregularity
or infraction of a procedural provision cannot
constitute a ground for interference by a superior
court unless such irregularity or infraction has caused
irreparable prejudice to the party and requires to be
17
corrected at that stage itself. Such frequent
interference by superior courts at the interlocutory
stages tends to defeat the ends of justice instead of
serving those ends. It should not be that a man with
enough means is able to keep the law at bay. That
would mean the failure of the very system.”
DISCUSSION AND FINDINGS BY THIS COURT:
5. Heard the arguments and submissions made by the learned
counsels appearing on behalf of the parties and upon perusal of the
entire order sheet of the Learned Trial Court, it appears that a case
was initiated against the two accused persons, namely, Sital Prasad
Shaw @ Gupta and Kesab Prasad Shaw @ Gupta by filing Court
complaint on 10.07.1982 under Section 3(a) of the Railway Property
(Unlawful Possession) Act.
6. This Criminal Revisional application filed by the petitioners for
quashing of the proceeding on the ground that the Learned Trial
Court did not discharge the accused persons despite the prosecution
/ Opposite Party No. 1 could not complete the evidence before charge
within a period of four years from the date of appearance of the
accused and by the reason of failure to produce all evidence, the
accused persons are entitled to be discharged in terms of the
amended Section 245(3) of the CrPC of the West Bengal.
18
7. During pendency of this instant Criminal Revisional
application, one of the accused persons, Kesab Prasad Shaw expired
and date of his expiry reveals as 12.07.2016 from the report
submitted by the Officer-in-Charge of the concerned police station.
Death certificate also enclosed with the report shows that he expired
on 12.07.2016. therefore, his case gets abated. Now, Sital Prasad
Shaw @ Gupta remains as an accused/petitioner herein who seeks
quashing of the proceeding on the ground set forth as aforesaid.
8. Before dealing/entering into the arguments advanced by the
parties, it would be appropriate and convenience to refer the Section
245(3) of the CrPC for ready reference and proper adjudication of this
case as under: –
“In Section 245 of the principal Act, after Sub-
section (2), the following sub-section shall be
inserted: –
(3) If the evidence referred to in Section
244 are not produced in support of the
prosecution within four years from the
date of appearance of the accused, the
Magistrate shall discharge the accused
unless the prosecution satisfies the
Magistrate that upon the evidence
already produced and for special
reasons there is ground for presuming
that it shall not be in the interest of
justice to discharge the accused. (Vide
W.B. Act 24 of 1988, S. 4 (w.e.f. the
notified date)”
19
9. From the perusal of the aforesaid provision, it is clear that
Section 245(3) of the CrPC gives mandate to the Magistrate in the
cases instituted otherwise then on police report to make an order of
discharge of the accused unless the prosecution satisfies the
Magistrate that upon the evidence already produced and for special
reasons there is ground for presumption that it shall not be in the
interest of justice to discharge the accused.
10. The Magistrate is required to make an order stopping further
investigation into the offence and discharged the accused. The
aforesaid amendment has been made for the benefit of the accused,
whose primary approach is to avoid delay in trial in consonance with
the fundamental right guaranteed under Article 21 of the
Constitution.
11. For the aforesaid reason, certain provision of the CrPC
including Section 245 of the CrPC has been amended by the Code of
Criminal Procedure (West Bengal Amendment) Act, 1988. The assent
of the President was first published in the Calcutta Gazette
Extraordinary Part 3, No. 548-L, dated 14.03.89. The aforesaid
amendment Act had come into force on and from 2nd May, 1989
20
under the relevant Notification issued by the Government to that
effect.
12. Upon perusal of the aforesaid judgments relied upon by the
petitioner, the Hon’ble Court held that as there is nothing in the Act
to suggest that the said amendment has been given retrospective
effect, therefore, it can be safely held that the amendment is
prospective in nature and the Magistrate in the matter of such
warrant case instituted otherwise than police report to apply sub-
section (3) of Section 245.
13. It is found that in the pending proceedings, the evidence
before charge have not been concluded within 4 years calculated from
the date on 2nd May, 1989. Magistrate should have decided the fate of
accused persons if all the evidence referred to Section 244 are not
produced in support of the prosecution within 4 years from the date
of amendment of section given effect. The Magistrate shall decide the
case unless the prosecution satisfies the Magistrate upon production
and for special reason there is ground for presumption that it shall
not be interest of justice to discharge the accused. Be that as it may,
the Magistrate has rejected the prayer for discharge of the accused
person without assigning any reasons.
21
14. Being aggrieved with the said rejection of the said discharge
prayer, the petitioner came before this Court.
15. Upon careful perusal of the copy of the orders of the Learned
Trial Court on record, it is clearly indicated that the accused, Sital
Prasad Shaw surrendered before the Learned Trial Court after
obtaining anticipatory bail on 28.08.1982. It further reveals that the
charge was framed on 2nd May, 1994 if we calculate the period for
completion of evidence before charge, it took 5 years even after the
date on which date of the amended Section was came into effect i.e.
from 2nd May, 1989, 5 years have taken over prior to framing of
charge. Considering the aforesaid facts, it appears it took more than
4 years.
16. In addition, the evidence after framing of charge has not been
completed on the part of prosecution as yet. It already expired more
than four decades. It is apparent from the face of record that the
accused is lacing the trial for about 43 years. Orders of the trial court
clearly indicates it does not able to glean any good or sufficient cause
which stood in the way of trial being expedited in the manner it ought
to have been completed. It itself is a violation of Article 21 of the
Constitution of India. The Petitioners had filed a Revisional
application earlier and in that proceeding, a stay order of the
22
proceeding was granted for a period from 23.06.1994 to 19.12.2003
and subsequently, stay was vacated on 19.12.2003. Even if this
Court gives discount that period then also the accused is suffering
without any sufficient cause for more than three decades and that is
highly considerable period. Therefore, the application has a good
merit. That being the situation, this Court constrains to hold that the
proceeding is a sheer abuse of process of law. Therefore, this
prosecution can no longer be allowed to continue and must quashed
by this court utilising the extraordinary power granted under Section
482 of the CrPC to prevent from abuse of process of law and to secure
the ends of justice. Section 482 confers very wide power on the court
to do justice and to ensure that the process of the court is not
permitted to be abused.
17. The contention of the learned senior counsel appearing on
behalf of the opposite party no. 1 with regard to delay actually caused
due to accused persons are not at all convincing and acceptable.
18. Accordingly, CRR No. 1770 of 2011 is allowed.
19. In view of the disposal of the main application, connected
application being CRAN 1 of 2024 is also, thus, disposed of by
allowing the application by directing the department to substitute the
23
name of Mr. Manas Kumar Mishra in place of opposite party no.1,
Ashish Bhattacharya (since deceased).
20. Consequently, proceeding being Case No. C-472/82
corresponding Trial No. 63/83 under Section 3(a) of the Railway
Property (Unlawful Possession) Act pending before the Court of
Learned Magistrate, 5th Court at Barrackpore, North 24-Parganas is
hereby quashed insofar as the petitioner, Sital Prasad Shaw @ Gupta
is concerned and the accused shall stand discharged.
21. Let a copy of this Judgment be sent to the Learned Trial
Court for information.
22. Interim order, if any, stands vacated.
23. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)
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