Citation : 2023 Latest Caselaw 946 Ori
Judgement Date : 30 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMC No.938 of 2022
Smt. Snigdha Mahanti and Others .... Petitioners
Mr. Goutam Kumar Acharya, Senior Advocate
Mr. S.K. Patra, Advocate
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. P.K. Rout, AGA
Mr. Arijeet Mishra, Advocate for O.P. No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:30.01.2023
1.
The petitioners have approached this Court by invoking its inherent jurisdiction under Section 482 Cr.P.C. for quashing of the criminal proceeding in connection with Capital P.S. Case No.72 dated 3rd February, 2022 corresponding to C.T. Case No.730 of 2022 pending in the file of learned S.D.J.M., Bhubaneswar on the grounds inter alia that the same is not tenable in law.
2. In the instant case, opposite party No.2 filed a complaint in 1CC Case No.4474 of 2021 consequent upon which the learned court below directed registration of a case for investigation by an order under Section 156(3) Cr.P.C. whereupon initially Chandrasekharpur P.S. Case No.462 dated 9th November, 2021 was registered and thereafter, with the change in jurisdiction, vide Capital P.S. Case No.72 dated 3rd February, 2022. It has been alleged in the said complaint that the petitioners by using their high position and influence managed to forge official documents and utilized the same in order to victimize opposite party No.2 by hatching conspiracy in initiating a criminal prosecution and
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
departmental action without any justifiable reason so as to harass and cause injury to him.
3. Heard Mr. Acharya, learned Senior Advocate, Mr. Rout, learned AGA and Mr. Mishra, learned counsel for opposite party No.2.
4. As per the pleading, the petitioner No.1 is the Senior Audit Officer under AG (Audit-1), Odisha, Bhubaneswar; petitioner No.2 posted as the Deputy Director in the office of DG of Audit (Central Receipt), New Delhi and petitioner No.3 is posted at Thiruvananthapuram in Kerala as the DAG (AMG-I) in the office of the Principal Accountant General (Audit-1) against whom the complaint was filed by opposite party No.2, who at the relevant point of time was working as the Secretary to AG (Audit-1), Odisha, Bhubaneswar.
5. According to the petitioners, while they were posted in the State in 2019, an anonymous letter (Annexure-3) was received by the AG (Audit-1), Odisha on 25th September, 2019 which was forwarded by the sender in forged names and signature of twelve serving and retired officers in order to malign their professional career and personal character and it was during the time when opposite party No.2 was working as the Secretary and more precisely between 31st October, 2018 and 26th November, 2019 and again on 25th October, 2019 yet another filthy and derogatory letter (Annexure-4) directed against petitioner No.2 as well as other officers including petitioner No.3 was received. It is further submitted that on receiving repeated anonymous letters, petitioner No.1 under the instruction of AG (Audit-1) lodged an FIR (Annexure-5) as a result of which Capital P.S. Case No.426 dated 19th November, 2019 was registered against unknown persons and during its investigation, the local police seized various official
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
records but could not collect sample handwriting of opposite party No.2, who was the prime suspect for the alleged mischief and ultimately, on the latter's joining, as he was on leave, it was obtained on 5th December, 2019 and for the purpose of verification by an expert, the same was sent to the SFSL, Bhubaneswar and with a view to initiate a domestic enquiry, the AG, Odisha sent the sample handwriting of opposite party No.2 and the handwriting of the anonymous letters and envelopes to a registered forensic laboratory, namely, SIFS, New Delhi for examination and received its report on 18th December, 2019 (Annexure-6) certifying that the handwritings matched later to which he was placed under suspension with effect from 6th January, 2020 by the orders of the AG (Audit-1), Odisha, Bhubaneswar on the direction of the Appointing Authority, namely, C & AG of India, New Delhi. It is also submitted that during the intervening period, petitioner No.2 lodged a complaint against opposite party No.2 before designated Internal Complaint Committee for the alleged acts of sexual harassment which was taken up and proceeded with and the matter is still pending with the competent authority and that apart, the brother of opposite party No.2 since threatened the officers of the AG, Odisha in order to influence them, the matter was reported and accordingly Capital P.S. Case No.294 of 2020 was registered and in that case, he was arrested. It is pleaded that opposite party No.2 challenged the order of suspension in OA No.179 of 2021 before the Central Administrative Tribunal, Cuttack Bench, Cuttack which is also subjudice. As against the aforesaid background, according to the petitioners, opposite party No.2 filed the complaint and as a result, police investigation was directed by the learned court below by order dated 7th October, 2021 (Annexure-1) which is under challenge.
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
6. Mr. Acharya, learned Senior Advocate submits that the learned court below despite the fact that opposite party No.2 had not lodged any report with the allegations made in the complaint failed to apply its judicial mind and in a mechanical manner directed registration of the case which is not tenable in law and such direction under Annexure-1 does not fulfill the legal requirements and that apart, the court below without considering the facts alleged in the complaint straightaway proceeded to order police investigation under Section 156(3) Cr.P.C. in absence of any sanction order which is the mandate of law. The petitioners being the officials of the AG (Audit-1), as according to Mr. Acharya, learned Senior Advocate, did whatever necessary in the given fact situation and by the orders of the Authority and it was during and in course of discharging duty and functions assigned to them and hence, before any decision was taken by the learned court below for police investigation, sanction should have been asked for and insisted upon which has not been resorted to and therefore, not only the order dated 7th October, 2021 under Section 156(3) Cr.P.C. passed by the learned court below but also the entire of the criminal proceeding is liable to be quashed more so when the filing of the complaint is clearly a counterblast to the criminal action initiated for the alleged mischief. While advancing such an argument, Mr. Acharya, learned Senior Advocate cited the following decisions, such as, Mrs. Priyanka Srivastava and Another Vrs. State of U.P. and Others 2015 (3) Supreme 152 and Maksud Saiyed Vrs. State of Gujarat and Others (2008) 5 SCC 668 on the powers of the Magistrate exercisable under Section 156(3) Cr.P.C., Anil Kumar and Others Vrs. M.K. Aiyappa and Another 2013 (8) Supreme 168 which is with regard to the need of a sanction even at pre-cognizance stage while directing police investigation on receiving a complaint. It is submitted that neither there was
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
application of judicial mind by the learned court below while directing investigation by an order under Section 156(3) Cr.P.C. nor considering the nature of allegations in the complaint against the backdrop of a mischief being committed by opposite party No.2 and he having been subjected to criminal action and departmental enquiry and the fact that the petitioners were part of such process and participated in discharge of official functions, without sanction the complaint after being entertained, police investigation was directed is not at all sustainable in law .
7. Mr. Rout, learned AGA submits that the complaint was received and with the orders of the learned court below Capital P.S. Case No.72 was registered and such direction has been at the pre- cognizance stage and in terms of Section 156(3) Cr.P.C. and hence, it cannot be said that the same was without jurisdiction. Mr. Mishra, learned counsel for opposite party No.2 would submit that there was no error or illegality committed by the learned court below while directing the local police to investigate since the complaint revealed commission of cognizable offences by the petitioners. It is further submitted that by Mr. Mishra that the petitioners having been alleged of criminal conspiracy in order to harass opposite party No.2 and in that regard managed the official records which demanded a detailed and thorough investigation, rightly, therefore, the court below passed the order dated 7th October, 2021. It is also submitted that sanction for prosecution of the petitioners is not required since the offences committed cannot be part of one's official duty and function and that apart, there was no need of it at the pre-cognizance stage. It is informed to the Court that in Capital P.S. Case No.426 of 2019, a final report (Annexure-A/1) was submitted and accepted in the meantime, by order dated 19th August, 2022 of the learned S.D.J.M., Bhubaneswar, the proceeding was dropped and in so far as the
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
present case is concerned, opposite party No.2 has filed CRLMP No.814 of 2022 for a direction and in order to ensure free and fair investigation, wherein, it has been revealed by an affidavit (Annexure-A/2) filed by the IO that the investigation has commenced but at its inception and he said to have requested the Senior DAG, AG, Odisha, Bhubaneswar to provide certain documents. According to Mr. Mishra, learned counsel for opposite party No.2, no such bar lies to entertain a complaint under Section 200 Cr.P.C. without prior lodging of the FIR and the Magistrate is having the competence to receive it and direct police investigation in terms of Section 156(3) Cr.P.C. without any restriction and the ratio decided in Priyanka Srivastava (supra) is inapplicable to the facts of the present case. It is lastly submitted that the criminal proceeding against the petitioners should not be quashed as no case is made out, inasmuch as, in order to exercise any such power under Section 482 Cr.P.C., the guidelines set out by the Apex Court in the case of State of Haryana and Others Vrs. Ch. Bhajan Lal and Others AIR 1992 SC 604 shall have to be followed.
8. In the case at hand, the learned court below by order dated 7th October, 2021 directed police investigation on receiving complaint from opposite party No.2 registered as 1CC Case No. 4474 of 2021. The very initiation of the criminal proceeding with the complaint entertained and direction under Section 156(3) Cr.P.C. has been questioned by the petitioners on the grounds narrated herein before. When a complaint is received, a Magistrate has two options open, one is by proceeding with it and receiving evidence from the complainant and taking cognizance of the offence and the other is to direct registration of a case for police investigation, the former is by invoking Section 200 Cr.P.C. and subsequent provisions, whereas, the latter is by virtue of Section 156(3) Cr.P.C. and it is at two different stages. So to say, at pre-cognizance stage
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
such an order under Section 156(3) Cr.P.C. is passed where it is said that the Magistrate has decided not to take cognizance of but to direct police investigation but once decided to proceed with the complaint recording the initial statement of the complainant invoking Section 200 Cr.P.C. and if necessary to conduct enquiry in terms of Section 202 Cr.P.C., such action is stated to have been taken at post-cognizance stage. The challenge herein is that in the facts and circumstance of the case, the criminal proceeding against the petitioners is not maintainable all the more when there is no sanction in place before the police investigation was directed.
9. In Priyanka Srivastava (supra), the Supreme Court held that a decision for police investigation in terms of Section 156(3) Cr.P.C. is not an empty formality and there has to have judicial application of mind and the Magistrate for the said purpose should ensure that the complainant has taken recourse to Section 154(1) and (3)Cr.P.C. and an application under Section 156(3) Cr.P.C. must be supported by an affidavit by sharing the details for having recourse to Section 154(1) and (3)Cr.P.C. and he also is required to verify the veracity of the affidavit filed for the purpose and a direction for police investigation. The said decision was against the background of facts where a dispute had arisen with regard to loan by the borrowers and taking action under provisions SARFAESI Act in respect thereof and therein, it was held that details of the steps taken by the complainant and whether he had resorted to Section 154(1) and (3) Cr.P.C. or not supported by an affidavit are required to be divulged or else it could result in unnecessary harassment to the officials and also referred to the decision in Anil Kumar (supra) which is with regard to the need of sanction before prosecuting a public servant even at the stage of an order for police investigation under Section 156(3) Cr. P.C. While dealing with a case under the Prevention of Corruption Act
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
on receiving a complaint, the Apex Court in Anil Kumar ibid held and observed that not only the Special Judge was required to examine the complaint, documents but he should also reflect in the order as to what weighed and persuaded him for a direction under Section 156(3) Cr.P.C. though a detailed expression of his views is neither required nor warranted and a valid sanction order is needed as well while expanding the meaning of the word 'cognizance' for having a wider connotation not merely being confined to the stage of taking cognizance of the offence. The role and responsibility of a Magistrate before ordering police investigation under Section 156(3) Cr.P.C. and the principles which apply have been discussed in Maksud Saiyed (supra). The reading of the aforesaid decisions makes it understand that a Court receiving a complaint must have to be careful and cautious while dealing with it and directing police investigation especially involving the public servants.
10. In the instant case, opposite party No.2 filed a complaint supported by an affidavit receiving which the learned court below directed police investigation. On a perusal of the complaint (Annexure-1), it is made to appear that opposite party No.2 moved the learned court below with a prayer to direct police investigation. It is revealed therein that opposite party No.2 had not approached the local police and even applied for sanction which he did not receive from the C & AG of India within the stipulated time and hence, approached the court below. It is stated therein that since opposite party No.2 was running from pillar to post and as the petitioners are highly influential, he had to seek the indulgence of the court for a direction to the local police to enquire into and investigate the mischief of the petitioners and the criminal conspiracy hatched by them to harass and prosecute him.
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
11. In Priyanka Srivastava (supra), the Apex Court highlighted upon the role of the courts and the need of applying judicial mind before directing police investigation in terms of Section 156(3) Cr.P.C. In the aforesaid case, referring to the decision of Anil Kumar (supra), it has also been held that the subjective satisfaction of the court would have to be reached before any such direction for police investigation is issued and furthermore, a valid sanction would be necessary while dealing with a complaint against the public servants. While posed with a question regarding sanction whether required at the pre-cognizance stage, the Supreme Court in Anil Kumar ibid held and observed that it shall apply at a stage before directing police investigation under Section 156(3) Cr.P.C. while entertaining a complaint under Section 200 Cr.P.C. The aforesaid decision was with reference to a complaint received by the Special court and therein order under Section 156(3) Cr.P.C was passed involving offences under the Prevention of Corruption Act and therein taking into account Section 19 of the said Act where previous sanction is necessary for prosecution, the Apex Court held and concluded that such a criminal action cannot be sustained which has also been quoted with approval in Priyanka Srivastava case. So as to say, that the expression 'cognizance' which appear in Section 197 Cr.P.C. was expanded by the Apex Court in Anil Kumar (supra) to include the pre-cognizance stage. For the said purpose, it is apt to reproduce the relevant excerpt of the decision in Anil Kumar (supra), wherein, the question of sanction at the stage of ordering investigation under Section 156(3) Cr.P.C. was discussed and dealt with which runs as follows:
"9. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression "cognizance"
appearing in Section 19(1) of the PC Act will have to be
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression "cognizance" which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this Court expressed the following view:
"6. ...And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
alleged to have been committed during discharge of his official duty.
xxx xxx xxx
xxx xxx xxx"
In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this Court has observed as follows:
"It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out."
10. The meaning of the said expression was also considered by this Court in Subramanium Swamy case (supra). The judgments referred to herein above clearly indicate that the word "cognizance" has a wider connotation and not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C. and the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre- cognizance stage.
11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.
12. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression "public servant" and provides under Clauses
(viii) and (xii) as under:
"(viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty.
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority." The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:
"19. Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction-
a) in the case of a person who is employed in connection with the affairs of the Union and is not
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
removable from his office save by or with the sanction of the Central Government, of that Government;
b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
c) in the case of any other person, of the authority competent to remove him from his office." Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:
"Section 19(3) - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
b) xxx xxx xxx
c) xxx xxx xxx"
13. Learned senior counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra)."
12. In Maksud Saiyed (supra), the Apex Court considered the responsibility which is required to be discharged while entertaining a complaint and issuing direction under Section 156(3) Cr.P.C. with a sound of caution and observed that summoning of an accused is a serious business and emphasized the application of judicial mind by a Magistrate. In so far as the present case is concerned, the petitioners are the senior officials and the complainant, namely, opposite party No.2 was alleged of being responsible for the mischief referred to in Annexures-3 & 4 which was enquired into leading to the disciplinary action against the latter. The necessary steps were taken by the petitioners subsequent to the alleged mischief and with the orders of the Authority concerned, FIR was lodged and furthermore, a departmental proceeding was initiated against opposite party No.2 after receipt of forensic report obtained from a registered laboratory. In what manner, the petitioners' manipulated record so as to fix opposite party No.2 is not discernable from Annexure-
1. To say that a criminal conspiracy was hatched by the petitioners without more and that too under the circumstances narrated in Annexure-1 would be a mere surmise and conjecture. The petitioners, being the public servants against one of whom derogatory sexual remarks were made involving her with other male colleagues by means of anonymous letters and a fake Circular in the name of the office of the Accountant General (G & SSA), Odisha, Bhubaneswar, did bring it to the notice of the Authority concerned and thereafter, proceeded in the matter in lodging the FIR and finally when opposite party No.2 was suspected to be the mischief monger, the departmental action was taken by placing
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
him under suspension. That being so, it would be quite unusual and absurd to allege the petitioners to have conspired against opposite party No.2, who has been taken to task after he was earmarked for the alleged mischief post-receipt of the forensic report. The circumstances under which opposite party No.2 moved the learned court below for a police investigation in terms of Section 156(3) Cr.P.C. was required to be duly examined especially when the allegations revolved around the mischief reported to the local police vide Capital P.S. Case No.426 dated 9th November, 2019 which is clearly revealed in Annexure-1. As it appears, the learned court below did not apply its judicial mind and in a mechanical manner directed police investigation entertaining request of opposite party No.2 being aware of the background facts. The role of a court has been discussed in Priyanka Srivastava and Maksud Saiyed (supra) before ordering police investigation and also the need of a sanction under Section 197 Cr.P.C. vis-à-vis the public servants involved even at pre- cognizance stage. The complaint so received by the learned court below under Annexure-1 merely indicates that the petitioners without any just reason entangled opposite party No.2 for the alleged mischief which was based on a laboratory report not consistent with the opinion of the SFSL, Bhubaneswar to the effect that the sample handwriting did not match with the handwriting appearing on the anonymous papers. There may have been an unpleasant situation after the alleged letters received and action taken against opposite party No.2 and that action was based on a forensic report which possibly did not find favour with the opinion of the SFSL, Bhubaneswar by itself would not be sufficient to alleged criminal conspiracy against the petitioners, who said to have acted on the directions of the Authority. Considering the ratio in Anil Kumar (supra), there is no escape from the conclusion
Smt. Snigdha Mahanti and Others Vrs. State of Odisha & Another
that the learned court below ought to have considered the aspect of sanction even at the stage of ordering police investigation before exercising powers in terms of Section 156(3) Cr.P.C. The contention of Mr. Mishra, learned counsel for the opposite party No.2 does not stand to any reason considering the facts and circumstances of the case while defending the criminal action vis-à- vis the petitioners which according to the Court is unjustified and untenable in law.
13. Accordingly, it is ordered.
14. In the result, the CRLMC stands allowed. As a necessary corollary, the criminal proceeding in connection with C.T. Case No.730 of 2022 arising out of Capital P.S. Case No.72 dated 3rd February, 2022 pending in the file of learned S.D.J.M., Bhubaneswar is hereby quashed.
(R.K. Pattanaik) Judge
U.K. Sahoo/TUDU
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