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TMI Blog2005 (12) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... ny of them, no useful purpose will be served by conducting trial against them and it will be an abuse of process of the court and to secure the ends of justice further proceedings against the petitioners is to be quashed. In support thereof reliance was placed on the decision of a Division Bench of this Court in Arun Kumar v. State of Kerala reported in 2004 (2) KLT 1039 . Crl. M.C. Nos. 1053, 1067 & 1078/2005 came up for consideration before a Learned Judge of this Court who after referring to the decisions in Joy v. State of Kerala 2002 (3) KLT 425 Chellappan v. State of Kerala 1992(1) KLT 609 Balakrishna Pillai v. State of Kerala 1971 KLT (SN)3 Felix v. State and Ors. 1980 KLT 612 and also Arun Kumar's case cited supra, was of the view that there is apparent conflict in the Division Bench and Single Bench rulings of this Court and the matter required to be referred to a Full Bench In the reference order, Ramkumar, J. also expressed his feeling that granting relief to an absconder accused may give a wrong message to a law abiding co-accused who stood trial that it was foolish on his part to attend the process of trial and its result will be that like-minded accused persons al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry wide and no fetter can be placed on the inherent powers of this Court by laying down a straight jacket formula for the exercise of such power. For what purpose the power could be exercised is expressly provided in Section 482 of the Code. Hence in a given case whether there is any abuse of process of the court or not is always a matter of appreciation of the particular matrix present in each of the case by the court. They contended that they are not canvassing for the position that merely because a few witnesses turned hostile in a trial, the other accused who has not faced the trial is entitled to be acquitted on that ground. But according to the learned Counsel, if the substratum of the case is shown to be lost based on the earlier judgment though the petitioner may not be a party thereto, the offence alleged being same, he is entitled to rely on the earlier judgment to that extent. If the substratum of the allegation does not survive, necessarily it will only result in abuse of process to try again the same issue in the case of the petitioner. It was also contended that the principle of issue estoppel is synonymum with the term "abuse of process", that the issue est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties was statutorily recognized by Section 561-A of the Code of Criminal Procedure, 1898. In Emperor v. Sukh Dev 1929 Lahore, 705 it was held that the inherent power cannot be exercised for doing act which would conflict with any of the provisions of law or general principles of criminal jurisprudence. The rule of law is firmly established that when a statute confers upon a Court a specific power the Court cannot by relying upon its inherent jurisdiction extend its scope of that power. The 41st Law Commission Report recommended that the Section may be expanded as follows: 561A. Nothing in this Code shall be deemed to limit or affect the inherent power-- (a) of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, or (b) of any other Criminal Court to make such orders as may be necessary to prevent abuse of its process or otherwise to secure the ends of justice. 11. Even though in the earlier report it was noticed that statutory recommendation of inherent power extends only to the power of the High Court and a recommendation was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not, and (iii) where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 13. In State of Karnataka v. L. Muniswamy : 1977 CriLJ 1125 the apex court held that the High Court can under its inherent power quash proceedings pending before the Sessions Judge on ground of insufficiency of evidence. It was further held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate having regard to the statement made on oath by the complainant as also evidence of witnesses produced by her and other material reached his satisfaction regarding existence of a prima facie case against the accused, the High Court was not justified in quashing the complaint and the criminal proceedings on the ground of abuse of process of court by relying on some additional material produced by the accused not admitted or accepted by the complainant. In State of Haryana v. Ch. Bhajan Lal : 1992CriLJ 527 , in a case relating to a complaint alleging commission of offence under Section 5(1) of the Prevention of Corruption Act, it was held by the Apex Court that the investigation cannot be quashed on the basis of denial of statement of party against whom commission of offence is alleged. In Minakshi Bala v. Sudhir Kumar 1994 SCC 1181 it was held that if charges are framed in accordance with Section 240 Cr.P.C. on a finding that a prima facie case has been made out the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge sheet submitted under Section 173 Cr.P.C. and documents sent with it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking the jurisdiction of the Court under Section 482 Cr.P.C. The High Court quashed the cognizance taken by the Magistrate. It was held that the High Court was wholly unjustified in invoking its inherent power under Section 482 of the Code of Criminal Procedure to quash the cognizance taken in as much as the allegation in the FIR and material referred to in the charge sheet do make out an offence and the Magistrate was directed to proceed with the trial against the respondent 16. Satish Mehra v. Delhi Administration : (1996) 9 SCC 766 was a case where the Sessions Judge framed charges on two counts. The first charge was that the appellant had outraged the modesty of his minor daughter and the second charge was that he made an attempt to commit rape on the infant child. It was held that consideration which should weigh with the Sessions Court at the stage of framing of charge have been well designed by Parliament through Section 227 Cr.PC. Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the court is of opinion that there is ground to presume that the accused has committed an offence the procedure laid down therein has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to plead at the time of framing of charges that there is no material for framing of charges he is not debarred from invoking the inherent jurisdiction of the court at the earliest point of time when the Magistrate has taken cognizance. In that case, the complaint was quashed not only against the appellants but also against two accused who did not prefer any appeal. 17. In Dinesh Dutt Joshi v. State of Rajasthan : 2001 CriLJ 4697 it was held that Section 482 Cr.PC. has been embodied to cover the lacunae which are sometimes found in the procedural law. However, this extraordinary power is to be used in extraordinary cases -- Maxims-- "quando lex aliquid alicui concedit. concedere videtur et id sine quo res ipsae esse non potest" and "ex debito iustitiae". In State of Karnataka v. M. Devendrappa : 2002 CriLJ 998 it was held that the power under Section 482 Cr.PC should be exercised ex debito justitiae to prevent abuse of process of court, but it should not be exercised to stifle legitimate prosecution. The High Court should not assume the role of a trial court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g such powers. In State of M.R v. Awadh Kishore Gupta 2004 (1) KLT (SC) 35 : (2004) SCC 353 it was held that quashing of a proceedings by appreciating evidence is not permissible under Section 482 Cr.PC. Even if charge is framed at that stage, the High Court cannot appreciate the evidence, but can evaluate material and documents on records to the extent of its prima facie satisfaction about the existence of sufficient ground for proceeding against the accused. Quashing of investigation and proceedings by the High Court acting upon documents annexed to the petition under Section 482 Cr.PC is not proper. It was held that without going into the question of conviction or acquittal where on consideration of the allegations in the light of the statements made on oath of the complainant it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, the proceedings cannot be quashed. When evidence has not been collected and produced before the court, issues involved are of magnitude and cannot be seen in their true perspective without sufficient material, yet no hard-and-fast rule can be lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. Reference was made to the decision in Rule P. Kapur v. State of Punjab : 1960 CriLJ 1239 and also the principles enunciated therein. Three principles were stated in the aforesaid decision. The third category of cases where the inherent power was held could be exercised was "where the allegations constitute an offence but there is no legal evidence addu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was preferred by the C.B.I., against an order passed by the High Court of Allahabad by which the High Court discharged the respondent in the criminal case filed against him. The charges framed against the accused were on the allegation that he entered into a conspiracy with another accused Dr. Sanjay Singh and in furtherance of the common object of the conspiracy joined hands with the other accused to cause the murder of one Syed Modi who was shot dead by Amar Bahadur Singh and two others at Lucknow when he was coming back after his badminton practice. All the three killers escaped from the place of incident. The police recovered some bullets from the place of occurrence and also from the dead body of Syed Modi. Dr. Sanjay Singh and Mr. Amita Kulkarni were implicated as accused but both of them were discharged by an order passed by the Sessions Judge which was challenged by the State before the High Court unsuccessfully. A Special Leave Petition also was filed before the Supreme Court which also was dismissed. In those circumstances, after assessing the factual situation, it was held that "therefore the very basis of the alleged conspiracy by the respondent with Dr. Sanjay S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from having recourse to Section 482 it being the only course open to it to challenge process issued under Section 204 as affirmed by the apex court because of his conduct in successfully having kept trial in abeyance by filing one proceeding after another. It has to be noticed that the Supreme Court and the High Court in the earlier proceedings had directed the question of validity of said statutory notice issued under Section 138 of the Negotiable Instruments Act, 1881 to be considered at trial stage. Even so in the light of the same and conduct of the appellant in initiating one proceeding after another, even up to the Supreme Court, thereby successfully managing to keep trial in abeyance in proceedings initiated in 1996, it was held that still the accused person cannot be prevented from taking recourse to the remedy which is available under law to him. Hence while permission sought by the appellant from the apex court to file a petition under Section 482 is not being granted, the statutory right available to him in law cannot be denied. 23. Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Hague 2005 SCC 283 the apex court reiterated the principles in the matter of exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to quash the proceedings and bar the trial except where forensic exigencies and formidable compulsions justify such a course or when the court comes to the conclusion that there would be manifest injustice or when there is abuse of the process of the court, if the power is not exercised. But then, the court will not sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out nor could it be exercised to stifle a legitimate prosecution. The High Court also cannot assume the role of a trial court and embark upon enquiry as regards the reliability of the evidence and sustainability of the accusation based on reappreciation of the evidence. As held in B.S. Joshi's case : 2003 CriLJ 2028 no hard and fast rule can be laid down for the exercise of the extra ordinary jurisdiction, but at the same time exercise of the power is an exception and not a rule. At a stage when evidence is not collected, normally court will refrain from giving prima facie decision when facts are incomplete and hazy. 25. The petitioners in this case placed reliance on the judgment of acquittal in the case of their co-accused as a ground for seeking relief und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings would have to be considered regardless of the evidence of recovery of the revolver from him. The above observations were made in an appeal with Special Leave filed by the accused against the conviction and sentence of death. 27. In Sheo Nandan v. The State : AIR 1964 All 139 the principle of res judicata and its application are stated thus: "Where after several persons who were tried for the offence of dacoity were acquitted with a finding that the currency notes recovered from one of the accused were not looted property but belonged to him, two more persons who were concerned in the same dacoity and who were absconding were arrested and tried for the same offence separately. It was held that the principle of res judicata as it was enunciated in Pritam Singh's case : 1956CriLJ805 in relation to criminal proceedings required that the previous judgment must be inter parties and hence, the accused not being the same in the two trials, the finding that the currency notes recovered were not looted property did not preclude the Court in the second trial from recording a contrary finding though such finding could not in any way affect the accused in the previous trial. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings is excluded by reason of the provisions of the Criminal Procedure Code. After considering the matter at length it was concluded by saying that Pritam Singh's case 1956 CriLJ 805 was rightly decided. 29. In Kharkan v. State of U.P. 1965 Crl.L.J. 116 the applicability of Section 403 was considered by the apex court and held that the plea will arise when a person is tried again for the same offence or on same facts for any other offence under conditions attracting Section 236 or Section 237. When there are two different trials for distinct offences arising out of different transactions and common object in both the cases being different the acquittal in one does not bar conviction in another. It was also held that the plea of autrefois acquit which is recognised under Section 403 Cr.P.C. arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 237. It has to be noticed that in that case the accused were charged under Section 302 IPC read with Section 149 IPC for murder of one T. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a trial. So the rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace does not preclude the trial of the respondents in respect of specific incident which together with the other incident was sought to be made the basis of the order of binding over the respondents. No principle of issue estoppel arises in such cases. 31. The following principles were held as emerging from the terms of Section 403 Cr. P.C. (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the court trying the first offence was incompetent to try that other offence. (2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made. (3) If a person is convicted of any offence constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Uttar Pradesh [1974] 1 SCR 793 it was held that the principle of issue estoppel simply stated is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law. It was further held that the plea of issue estoppel is not the same as the plea of double jeopardy or autrefois acquit. Issue estoppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. 34. In Amritlal Ratilal Mehta v. State of Gujarat : 1980 CriLJ 214 it was held that an earlier finding which has attained finality is binding in the subsequent proceedings in the case. The question is not whether the ingredients of the two offences are the same or substantially the same. That question would be relevant if the plea was one autrefois acquit or autrefois convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue. 36. In North West Water Ltd. v. Binnie & Partners (1990) 3 All ER 547 the principle of estoppel and res judicata were considered by the Queen's Bench Division. That was a case where the Water Authority commissioned a firm of consultant engineers to design and supervise the construction by contractors of an underground tunnel link and valve house to take water from one river to another. The scheme prompted protests from local residents which caused the plaintiff to arrange a meeting of the local residents at the valve house in order to demonstrate the operation of the scheme. During the meeting an explosion occurred because unknown to anyone the valve house had filled with methane gas which ignited. Some people were killed and the rest injured. The Victims brought action claiming damages for injury or death against the Water Authority, the contractors who constructed the system and the consultant engineers. In the trial the Judge held that all three defendants were to blame and apportioned liability between them. All of them appealed to the court of appeal which allowed the appeal of the Water Authority and contractors and held that the consultant engineers were wholly to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has received approval of the Supreme Court in Manipur Administration v. Thokchom Bira Singh [1964] 7 SCR 123 , Banwari Godara v. The State of Rajasthan (Crl.A.141/1960 decided on 7th February, 1961), Lalta and Ors. v. The State of U.P. (Crl.A. 185/1966 decided on 25.10.1968), and in The Assistant Collector of Customs and Anr. v. LR. Malwani and Anr. (Cr.As. Nos. l5 & 35/1967 decided on 16.10.1968) etc. It was also held that it is too late now to make a departure from the rule accepted by the apex Court and in the American courts also the rule of issue estoppel has received approval (Sealfon v. United State (1948) 332 USR. 575.) 40. In para 12 reference was also made to Connelly v. Director of Public Prosecutions LR (1964) AC 1254 decided by the House of Lords and the Apex Court observed that in the aforesaid decision there was some difference of opinion amongst the Law Lords regarding the applicability of the rule to criminal trials in the English Courts and added to say that our criminal jurisprudence is largely founded upon the basic rules of English Law though the procedure is somewhat different. In criminal trials under the Code of Criminal Procedure, there is no uncertainty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch suit, or to hold such trial. Section 41 deals with relevancy of certain judgments in probate etc. jurisdiction and Section 42 deals with relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 and says that the judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. As per Section 43 judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of this Act. 42. A three Judges' Bench of the Supreme Court in Kharkan v. state of Uttar Pradesh [1964] 4 SCR 673 considered the question where in two different trials for distinct offences arising out of different transactions and when common object in both cases are different, whether acquittal in one is a bar to convict in the other. It was held that the reasoning of judgment of acquittal not admissible as evidence. It was further held that a plea of autrefoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly it is only a rule of evidence that does not bar a trial. 44. In Ali Hasan v. State 1975 Crl.L.J. 345 a Division Bench of the Allahabad High Court, following the decision in Kharkan's case [1964] 4 SCR 673 held that neither reasons for acquittal in earlier case nor evidence on record is relevant for decision in later case. The contention was that the accused in that case was acquitted in an earlier case and a certified copy of the judgment in that case was attempted to be produced. It was held that even if the certified copy of judgment was accepted as additional evidence, it does not in any way advance the case of the accused since the judgment produced can be utilised for the purpose of showing that he was acquitted in the sessions trial. Neither the evidence on record nor the reasons contained the judgment can be taken into consideration for deciding the present appeal. The reasoning in the earlier judgment could not be relied upon as it proceeded on evidence which was recorded separately and which was considered separately. It was also noticed that the sessions trial which ended in acquittal was connected with a dacoity and the acquittal was on the ground that the identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sought to be used. Consequently, where such a judgment contains an admission as to the date of death of the father of the predecessor in title, the admission is admissible to prove the date of the death of such person. The above decision would show that even if a judgment is not inter parties and may not be relevant within the meaning of Section 40 to 43, the question will be admissible under Section 35 to prove certain facts. In Gangadhar Behera v. State of Orissa 2003 SCC 32 the apex court held that merely because some of the accused have been acquitted, though evidence against all of them, so far as direct testimony went, the same does not lead as a necessary corollary that those who have been convicted must also be acquitted and it is always open to a court to differentiate the accused who had been acquitted from those who were convicted. Reference was made to Gurcharan Singh v. State of Punjab 1956 CriLJ 827 . 47. The above decision would show that there may be distinguishing features in the evidence so far as the acquitted and convicted accused are concerned and merely because some of the accused were acquitted by itself may not be a ground to bar a trial itself leaving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30 or 35 of the Evidence Act. At the same time, the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself. It may however, be a case where the very substratum of the case is lost which may be an exception to this rule. However, as held by the apex court it has to be held that even when a co-accused is acquitted in the very same trial, the other accused can be convicted if there are good reasons to do so. In other words, the acquittal of some of the accused by itself is not a reason to bar the trial in the case of the other accused. 51. The broad principle stated in the decision in Arunkumar v. State of Kerala : 2004 (2) KLT 1039 is that it is up to the Judge who hears the petition under Section 482 Cr.P.C. to examine the factual situation in each case with reference to the overt act attributed and such other relevant factors and to decide as to whether the discretion vested in the court should be exercised or not. The court also held that it will not be justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses in the case of the co-accused and this Court cannot in exercise of its jurisdiction under Section 482 Cr.P.C. quash the proceedings and prevent the trial. Hence the dictum laid down in Arun Kumar's case to the extent it has taken a contrary view of what is stated above, is not a correct law and the same is overruled. 53. In the light of the above discussions, we may summarise the legal position as follows: (i) The inherent powers of the High Court reserved and recognised under Section 482 of the Code of Criminal Procedure are sweeping and awesome; but such powers can be invoked only (a) to give effect to any order passed under the Code of Criminal Procedure or (b) to prevent abuse of process of any court or (c) otherwise to secure the ends of justice. Such powers may have to be exercised in an appropriate case to render justice even beyond the law. (ii) Considering the nature, width and amplitude of the powers, it would be unnecessary, inexpedient and imprudent to prescribe or stipulate any straight jacket formula to identify cases where such powers can or need not be invoked. (iii) But such powers can be invoked only in exceptional and rare cases and cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waited for manipulation of hostility of witnesses, such improper conduct would certainly be a justifiable reason for the court to refuse to invoke its powers under Section 482 of the Code of Criminal Procedure. (ix) The fact that the co-accused have secured acquittal in the trial against them in the absence of absconding co-accused cannot by itself be reckoned as a relevant circumstance while considering invocation of the powers under Section 482 of the Code of Criminal Procedure. (x) A judgment not inter parties cannot justify the invocation of the doctrine of issue estoppel under the Indian law at present. (xi) Conscious of the above general principles, the High Court has to consider in each case whether the powers under Section 482 of the Code of Criminal Procedure deserve to be invoked. Judicial wisdom, sagacity, sobriety and circumspection have to be pressed into service to identify that rare and exceptional case where invocation of the extraordinary inherent jurisdiction is warranted to bring about premature termination of proceedings subject of course to the general principles narrated above. 54. In the light of what is stated above, each of the cases is to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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