December 5, 2020

Special Leave to Appeal


Judicial system has a system of hierarchy. India also has a pyramidal structure of judiciary, at the top of which sits the Supreme Court. So, it can be said that the Supreme Court is the final court of appeal. A party, aggrieved by all the courts in the hierarchy can approach the court with his/her grievance. But this article is like a shortcut, with the help of which the party can bypass all the courts in the hierarchy and can reach to the Apex Court.”

“Article 136(1) empowers the Supreme Court to grant in its discretion, special leave to appeal any judgement, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal in territory in India. Article 136 runs as follows:”

“Notwithstanding anything in the Chapter of appeals, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any, case or matter passed or made by any court or tribunal in the territory of India.”

Article 136(2)[1]“excludes from the scope of Article 136(1) any judgment or order passed by a tribunal functioning under a law relating to the Armed forces.”

“Article 136 confers a special jurisdiction on the Supreme Court. It opens with a non-obstinate clause, viz “Notwithstanding anything in this chapter”. This means that the power of the Supreme Court under Article 136 is unaffected by Articles 132, 133, 134 and 134(A).”

The power given to the Supreme Court by Article 136(1) is in the nature of residuary power. The power is plenary in the sense that there are no words in Article 136 qualifying that power. It is a sweeping power, exercisable outside the purview of ordinary law to meet the pressing demands of justice. The Supreme Court has characterised its power under Article 136 as “an untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected toonly one limitation, that is, the wisdom and good sensed justice of the Judges”.[2]

The Supreme Court has described the nature of its power under Article 136 as follows:[3]

The power has been held to be plenary, limitless,[4] “adjunctive”, and unassailable on the grounds of unconstitutionality[5] “A word of caution was sounded in MC Mehta v UoI[6] the effect that judicial discretion has to be exercised in accordance with law and set legal principles. Also where an order was passed without jurisdiction by the Supreme Court it was corrected in a subsequent SLP arising out of the same proceedings before the High Court.[7]

“The Supreme Court has observed in Pritam Singh v The State,[8] that the power under Article 136 “is to be exercised sparingly and in exceptional cases only. and as far as possible, a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this Article. By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of cases.”

“Despite earlier pronouncements that the jurisdiction under Article 136 should be utilized for determining only substantial questions of law and not for redeeming injustice in individual cases the power has been utilized increasingly to determine individual controversies because a case has”“failed to receive the needed care, attention and approach, and the conscience of this Court pricks it or its heart bleeds for imparting justice or undoing injustice”.[9]”This element of emotional subjectivity in the assessment of what constitutes an” “injustice” would necessarily result in greater uncertainty in the outcome of a proceeding before the Supreme Court. Matters are disposed of as a onetime measure without laying down any law or creating precedent”.[10] Recently, “individualized justice” was deprecated by a Constitution Bench sending out confusing signals and ushering in judicial chaos “highlighting the statement that equity tends to vary with the Chancellor’s foot”. More recently, the Court reiterated that “Circumspection and circumscription must induce the Court to interfere with the decision under challenge only if the extraordinary flaws or grave injustice or other recognised grounds are made out”. [11]

Supreme Court is not the proper forum to adjudicate grievances /claims between groups of shareholders as to right of management of affairs of company.[12] Court must not answer any question particularly in absence of any challenge to legality and validity of the criminal proceedings[13].If the law laid down by Supreme Court is not applied properly by High Court, then such order is liable to be set asides[14]


“The scope of Article 136(1) is very comprehensive and it invests the Supreme Court with a plenary jurisdiction to hear appeals.”“Article 136(1) is couched in the widest possible terms. Thus where a criminal case arose out of a private dispute purely personal nature under commercial transaction and a settlement is arrived at by the parties to such transactions the Court was of the view that continuing the criminal proceedings would be a futile exercise and quashed the FIR and all consequent proceedings.[15] The broad and overriding nature of Article 136 will be evident from in following features:””

(1) “Under Article 136, in suitable cases, the Supreme Court can even disregard the limitations contained in Articles 132 to 134 on its appellate jurisdiction and hear appeals which it could not otherwise hear under these provisions.[16]

Articles 132-134 provide for regular appeals from the High Courts to the Supreme Court. But there may still remain cases falling outside the purview of these Articles where it may appear necessary to hear appeals in the interest of justice. The power of the Supreme Court under Article 136 is unaffected by Articles 132, 133, -134 and 134A in view of the expression “notwithstanding anything in this Chapter” occurring in Article 136.””

(2) “Articles 132 to 134 permit appeals only against decisions of the High Courts. Article 136, on the other hand, does not impose any such restriction.

Article 136 uses the phrase ‘any court’ and thus empowers the Supreme Court to hear appeals from judgments given not only by the High Court but even by a subordinate court. Thus, in Rajendra Kumar v State,[17] the Supreme Court heard an appeal from the decision of the Chief Judicial Magistrate. The appellant did not go to the High Court but came straight to the Supreme Court. The Supreme Court did however observe that it does not ordinarily entertain such petitions.”


“When a special leave petition is dismissed in limine by the Supreme Court when the court merely says “dismissed” without giving any reasons, all that the Com decides in such a situation that it was not a lit case where special leave to appeal should have been granted under Art-136, it would only mean that the court was not inclined to exercise its discretion in granting a leave to file the appeal.[18] The Supreme Court says nothing about the merits of the case, or the correctness or otherwise of the order from which leave to appeal is sought. The requirement for appellate courts to give reasons when summarily dismissing an appeal, does not apply to the Supreme Court as it is the final court.[19] It was held, when an SLP is dismissed with reasons, there is merger of judgement of High Court with the order of Supreme Court.[20]

The orders “passed by the courts below were held to merge with judgement and order of Supreme Court.

· It has been held that the dismissal of SLP by a reasoned speaking order by declining to interfere with decision of High Court (Precedential value) can be relied on.[21]

· In a contrary view however it has been reiterated that SLP dismissed by the Supreme Court limine, would not amount to confirming the view of the High Court.[22]

· It has been held that when the trial court records its findings and first appellate court appreciates the same in exercise of its appellate jurisdiction, such findings normally are binding on second appellate court and Supreme Court. [23]“This means that the order of the Apex Court creates nores judicata; It lays down no law for the purposes of Article 141[24].The mere rejection of special leave petition by the Supreme Court cannot by itself be construed as “the imprimatur” of the Supreme Court on the correctness of the decision sought to be appealed against. As the Supreme Court has observed in a case[25]”:

“It is true that the said Special Leave Petitions were dismissed summarily but that would not mean that this Court approved the view that was taken by the High Court.”

A subsequent petition challenging the refusal of the lower court to review its earlier order has also been held to be not maintainable. [26]

The Apex Court has observed in the Supreme Court Employees’ Welfare Association v. UoI[27]:

In another case,[28] the Court has observed: “An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.”

Once a special leave petition filed against a High Court decision is withdrawn without obtaining leave from the Supreme Court to file another special leave petition, a fresh special leave petition against the same decision is not maintainable. The ban on filing a fresh special leave petition is based on public policy.[29] Similarly,when a special leave petition is dismissed by the Supreme Court, a second special leave petition for appeal is not maintainable. The principle of res judicata comes into play in such a context,[30] unless the earlier order of the Supreme Court is established to be contrary to an existing law.[31]


It“is a well established principle that even though the Court may grant special leave to appeal, the discretionary power vesting in the Court at that stage continues to remain with the Court even at the time of hearing the appeal on merits. This principle 1s applicable to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter . This means that only those points could be urged at the final hearing of the appeal which were it to be urged at the preliminarily stage when leave for appeal was asked for, as it would be illogical to adopt different standards at two different stages of the same case. Also, the Court after declaring the correct legal position, may still say that it would not exercise its discretion to decide the case on merits and that it would decide on the basis of equitable considerations in the fact situation of the case and” “mould the final order[32].”

The Supreme Court has observed on this point in Taherakhatoon[33]: “even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error-still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion”

In the instant case, the Supreme Court while pointing out the errors committed by the High Com in its decision, nevertheless, refused to interfere with the decree passed by the High Court. The Supreme Court declared that “in the peculiar circumstances referred to above, this is not a fit case for interference” and moulded relief in favour of the plaintiff””

The width of the discretion may extend to a situation where although the appeals are found to be not maintainable. yet having regard to arguments being advanced at length including submissions on merit, the Supreme Court may decide on the merit of the appeals.[34]

“In an appeal from an order condoning delay in preferring first appeal the Court awarded costs of Rs. 1o,ooo/- dismissing the appeal.[35]

It has been held that the imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filling of frivolous cases. It is only then the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice.”[36]

In the facts and circumstances of the case, instead of relegating the matter to District Magistrate concerned to pass orders on release application of respondent landlord, the Supreme Court itself hand the appellant to hand over vacant possession of suit premises to respondent landlord within four weeks from date of present order, failing which appellant would be liable for Contempt of Supreme Court.[37]

In a case of appeal was disposed of without going to issues raised on merits as it was noticed by the Supreme Court that litigation turned out to be infructuous in view of subsequent events.[38]

Appeal before Supreme Court against findings of High Court in first appeal based on the appreciation of evidence. Supreme Court interference with such findings, when called for.[39] Non-adjudication of dispute by Labour Conn on merit with regard to justifiability of termination order passed by respondent against appellant on ground that reference of industrial dispute was lime barred requires interference by Supreme Court on exercise of 1ts power under Article136.[40]


After Supreme Court grants leave to appeal, the Court hears the appeal on merits. After hearing the arguments of the panics, the Court gives its decision. The Court may dismiss the appeal with or without giving reasons for the same or the Court may pass an order of reversal, modification or merely affirmation of the decision of the lower court or tribunal. In any such situation, the decision appealed against gets merged Nth the decision of the Apex Court. This means that after the Supreme Court, the original decision appealed against cannot be challenged through a writ petition under Article 226 in a High Court. Nor can the lower court or tribunal review its decision against which the Supreme Court has disposed of the appeal.

On issuance of suo moto show cause notice by the Supreme Court after hearing both the sides, it will be the duty of Supreme Court to decide the same irrespective of the fact that the accused does not want to prosecute his appeal against conviction. In such backdrop. appellant cannot be permitted to withdraw the appeal.[41]


“Article 136 imposes no restriction or limitation on the power of the Supreme Court to hear appeals. The constitutional provision confers a plenary jurisdiction on the Court. Nevertheless, the Court has sought to impose on itself some restrictions in exercising this vast appellate jurisdiction. This has been done with a view to reduce the How of appeals to itself so that it is not face with a huge backlog of cases.”

The State is not justified in challenging the order of dismissal through an SLP only on the ground that matter should not have been dealt with the Chief Justice.[42]

Although there is no general right of appeal and although Article 136 is exercisable only under exceptional circumstances, Article 136 is worded in widest possible terms and vests plenary jurisdiction to hear appeals against any kind of judgment or order made by a court or tribunal in any case or matter and powers could be exercised in spite of specific provisions for appeal contained in Constitution or other laws. The proceedings under Article 131 are barred if there is a law under Article 262 conferring jurisdiction to decide disputes coming within purview of Article 262 by Tribunal. [43]


“The Court has imposed on itself a restriction that before invoking the jurisdiction of the Court under Article 136, the aggrieved party must exhaust any remedy which may be available under the law before the lower appellate authority or the High Court.[44] When in a case, the High Court Judge committed patent error, the Supreme Court heard an appeal from the single judge.[45]


“The Court has power to condone delay in approaching it to enable it to do substantial justice to the patties concerned.[46] The Court shows a liberal attitude in condoning delay when the government is the appellant. one reason for such an approach is that bureaucratic delay is proverbial. Secondly, the Court feels that if the state is denied an opportunity to appeal because of delay, it may b5 the loss of the society as a whole.[47]


The Supreme Court has directed the Government of India and the State Governments to set up a Committee to monitor disputes between them to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and cleared it for litigation.” The Court has also directed that:

“It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with”[48]“and further wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such Filing, refer the matter to the High-Powered Committee, After such reference to the High-Powered Committee is made, the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigation.

“The machinery contemplated is only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee and does not in any way efface the statutory remedies of the State or the statutory corporations.[49] It has recently been clarified that the emphasis on one month’s time was only to show the urgency” needed and merely because there is some delay in approaching the Committee that does not make the action illegal.[50]


“If the Revenue accepts the decision on a point of law in the case of one assessee without challenging it further by way of an appeal, it is not open to the Revenue to challenge its correctness in the case of other assesses without just cause.


Under Article 136, the Supreme Court can give whatever relief may be necessary and proper in the facts and circumstances of the specific case. The Court has power to mould relief according to the circumstances of the specific case. The Court can also invoke its power under Article 142 for this purpose.”

A few instances of moulding relief may be cited here. A police officer was promoted to the post of Deputy Superintendent of Police in 1975 under directions issued by the High Court to that effect. The State appealed to the Supreme Court under Article 136. In the year 2ooo, the Supreme Court ruled that the decision of the High Court was not sustainable. The Supreme Court however ruled that the benefit conferred on the concerned officer under the High Court direction should not be withdrawn.[51]

In Badrinath v Government of Tamil Nadu[52], the appellant was appointed in the junior scale in in 1957 and was promoted to the selection grade in 1972. Thereafter, he was not promoted to the super-time scale. His appeal to the Government was rejected. He filed a writ petition is the High Court which was rejected. He then tiled an appeal in the Supreme Court under Article 136. The held that the refusal to promote him was not justified.”

“The power has been8 used for various purposes such as issuing directions for recording /registering marriages[53] expunging adverse remarks made in the judgment against the sum. hate courts and imposing exemplary costs of Rs. 5 lakhs on the Uo1 for having illegally retained possession of property for 32 years.[54] So far as the applicant is concerned. remarks have been made only for purpose of decision of writ petition and shall have no bearing on service career of applicant.[55]


“Under Atticle136, the Supreme Court can hear appeal in a case involving substantial question of constitutional law if the High Court refuses to grant the necessary certificate under Article132. Similarly, the Supreme Court may entertain appeal in a civil case where substantial question of law is involved but which is not covered by Article 133, as for example, when the High Court may have refused to grant a fitness certificate.No need to entertain SLP if no substantial question of law is arising.[56]

Ordinarily, the Supreme Court does not entertain an appeal against an exercise of discretion by the court below if it has been exercised along sound judicial lines. But if the discretion is exercised arbitrarily or unreasonably, or is based on a misunderstanding of the principles that govern its exercise, or the order has been passed without jurisdiction, or if there is a patently erroneous interpretation of law by the High Court, the Supreme Court would intervene if there has been a resultant failure of justice.[57]

The Supreme Court does not appreciate evidence, or go behind the findings of fact arrived at the courts below, much less concurrent findings, unless there is sufficient ground for doing so.[58] The Court can, however, appreciate evidence on record to avoid miscarriage of justice. If in giving the findings the lower court ignored or misread and misconstrued certain important pieces of evidence, and the Supreme Court comes to the conclusion that, on the evidence taken as a whole no court could properly, as a matter of legitimate inference, arrive at the conclusion that the lower court has arrived[59]or where the two lower courts of appeal were under a clear misapprehension as to the findings of fact by the trial court, or where the lower courts arrive at the timings not on proper consideration of the law on the subject, or where appreciation of evidence by the courts below on the face of it appears to be erroneous causing miscarriage of justice, the court would examine the evidence itself. The position however is different if it is a mixed question of law and fact.[60]


“The Scope of Article 134 providing for appeals to the Supreme Court in criminal matters is limited. On the other hand, Art-136 isvery broad based and confers a distinction on the Court to hear appeals in any cause or matter.

“It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction IS required to be exercised only 1n suitable cases and very sparingly.[61]

“As under Article 134(l)(c), so under Article 136, the Supreme Court does not act as an ordinary court of criminal appeal to which every High Court judgment in a criminal case can be brought up for scrutiny of its correctness. The Court does not, generally speaking, allow facts to be reopened, or act as a court to review evidence.[62] These rules are not however, absolute; these rules constitute a self-imposed restriction by the Court, and may be relaxed whenever there has been a failure of justice.”


An outstanding feature of Article l36(1) is that it empowers the Supreme Court to hear appeals not only from courts but also from tribunals.

“In this context, the use of the word ‘tribunal’ in Article 136 assumes a special significance, for it indicates that the Supreme Court can hear appeals from the decisions of such bodies as may not be courts in the traditional sense. The word ‘tribunal’ has been used in Article 136 in contradistinction to ‘courts’. While all courts are tribunals, all tribunals are not courts. As innumerable adjudicatory bodies function outside the judicial hierarchy, it is extremely desirable that there be some forum to correct any misuse of power or procedural irregularities committed by such bodies. This function is now discharged by the Supreme Court under Article leave this adjudicatory bodies outside the pale of any judicial control would be create innumerable little despots which would misuse their power, or exercise them improperly, and thus negate the concept of Rule of law.”


“The constitution of India allow to appeal in the supreme court from the high courts in article 132- 134, there are some cases where appeal can be filed direct to the supreme court , that residuary power are outside the purview of ordinary law ,and its conferred under the sec 136 of constitution of India .in this sec supreme court have the power to grant special leave petition from any judgement ,decree or order , in any cause or matter or passed by any court or tribunal in the territory of India.”

[1] 136(2) States that “nothing in clause (1) shall apply to any Judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to armed forces.”

[2]“Kunhayammed v state of Orissa, AIR 2000 SC 2587

[3] Narpat Singh v Jaipur Development authority, 2002 (4) SCC 666”

[4] Esher Singh v State of AP, (2000) 11 SCC 585

[5] Zahira Habibullah Sheik v State of Gujarat, (2004) 5 SCC 353

[6] (2004) 6 SCC 588

[7] Neeraj munjal v. Atul Grover, AIR 2005 SC 2867

[8] AIR 1950 SC 169

[9] Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815

[10] Fokatlal Prabhulal Bhatt v. State of Gujarat, (2004) 12 SCC 445, 447

[11] Shivanand Gaurishankar Baswanti v Laxmi Vishnu Textile Mills, (2008) 13 SCC 323

[12] Yash deep Trexium ltd v. Namokar Vinimay Ltd., (2014) 1 SCC 545

[13] Control print ltd v. Narcotics control bureau, (2015) 11 SCC 637

[14] State of Tamil Nadu v. Maria Anton Vijay, (2015) 7 SCJ 170

[15] Jagadish Chanan v state of Haryana, 2008 15 SC 704

[16] Delhi JudicialService Association v. State of Gujarat, AIR 1991 SC 2176

[17] AIR 1980 SC 1510

[18] Saurastra oil mills Association v. State of Gujarat, (2002) 3 SCC 619

[19] Bolin Chetia v. Jagadeesh bhuyan, AIR 2005 SC 1872

[20] Kapil Mehra v. UOI, 2005 (13) SCC 445

[21] T. Ravi v. B. Chinna narasimha, (2017) 7 SCC 342

[22] Palam Gas Service v. CIT, (2017) 7 SCC 613

[23] Agnikondala venkatarangarao v. Indukuru Ramachandra Reddy, (2017) 7 SCC 694

[24] Law declared by Supreme Court to be binding on all courts

[25] Commissioner of Income Tax v. Manchunatheshwar packing products and Champher works, AIR 1998 SC 1478

[26] Shankar motiram Nale v. Shiolalsingh Gannusingh Rajput, (1994) 2 SCC 753

[27] (1993) 4 SCC 441

[28] Kunayammed v. State of Kerala, AIR 2000 SC 2587

[29] Upadyay and co. V. State of UP, AIR 1999 SC 509

[30] MN Haider v. Kendriya Vidyalaya Sangathan, (2004) 13 SCC 677

[31] Neeraj Munjal v. Atul Grover, AIR 2005 SC 2867

[32] Munciple board Prathapgarh v. Mahendra Singh Chawla, AIR 1982 SC 1493

[33] Taherakhatoon v. Salmabin Mohammad, AIR 1999 SC 1104

[34] Villianur iyyarakkai padukappu mayyam v. UOI, (2009) 7 SCC 561

[35] CK Prahalada v state of Karnataka, (2008) 15 SCC 577

[36] Dnyandeo Sabajinaik and anr. V. Pradnya prakash khadekar, (2017) 5 SCC 157

[37] Durga Prasad v. Narayan ramchandaani, (2017) 5 SCC 69

[38] Dinshaw Rusi Mehta and & anr v. State of Maharastra & ors, (2017) 5 SCC 496

[39] Rathnavathi v. Kavitha, (2015) 5 SCC 223

[40] Raghubir singh v. Haryana roadways, (2014) 10 SCC 301

[41] Gandidoddabasappa v. State of Karnataka, (2017) 5 SCC 415

[42] State of Bihar v. Raj pallav Prasad, (2017) 3 SCC 362

[43] State of Karnataka v. State of Tamil Nadu, (2017) 3 SCC 362

[44] Nirmala ltd. V. Lurgi Lenteges energietechnik gbgh, (2002) 5 SCC 520

[45] State of UP v. Harish Chandra, AIR 1996 SC 2173

[46] UOI v. Cynamide India Ltd., AIR 1987 SC1802

[47] Chief GM telicom v. G. Mohan Prasad, (1999) 6 SCC 67

[48] ONGC v. CEC, (1992) 61 ELT 3

[49] Mahanagar telephone Nigam ltd. v. Chairman, central board, Direct Taxes (2004) 6 SCC 431

[50] CIT v. Oriental Insurance Company ltd.,( 2008) 9 SCC 349

[51] State of Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306

[52] (2000) 8 SCC 395

[53] Seema v. Ashwini Kumar, (2005) 4 SCC 443

[54] UOI v. Raha md. Amir Md. Khan, AIR 2005 SC 4383

[55] Arun Kumar Agarwal v. UOI, (2014) 16 SCC 418

[56] Gurucharan singh v. Surjit Singh, (2014) 2 SCC 140

[57] Santosh v. Mul Singh, AIR 1958 SC 321

[58] Ghishalal v. Dhapubai, (2011) 2 SCC 298

[59] White v. White, AIR 1958 SC 441

[60] Suresh kumar jain v. Shsnti Swaroop Jain, AIR 1977 SC 2291

[61] UOI v.Ashok kumar Agarwal, (2014) 3 SCC 405

[62] Mohindersingh v. State of Punjab, AIR 1965 SC 79

Author Details: Rapaka Sravya is a student at DSNLU, Visakhapatnam.

The views of the author are personal only. (if any)

Source: Juscholars Journal Volume 1, Issue 4.

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