(Dinesh Maheshwari and Ahsanuddin Amanullah, JJ.)
Gulam Mustafa ____________________________________ Appellant;
v.
State of Karnataka and Another ___________________ Respondent(s).
R1: the State of Karnataka
R2: Smt. Jayamma
Criminal Appeal No. 1452 of 2023 (@ Special Leave Petition (Crl.) No. 2480 of 2021), decided on May 10, 2023
The Judgment of the Court was delivered by
Ahsanuddin Amanullah, J.:—
1. Heard learned counsel for the appellant, respondent no. 1 and respondent no. 2.
2. Leave granted.
3. The present criminal appeal is directed against the Final Judgment and Order dated 23.02.2021 (hereinafter referred to as the “Impugned Judgment”) rendered by the High Court of Karnataka (hereinafter referred to as the “High Court”) at Bengaluru, whereby the High Court was pleased to reject Criminal Petition No. 3788 of 2019 preferred by the appellant.
FACTUAL PRISM:
4. The Appellant is the Managing Director of GM Infinite Dwelling (India) Private Limited (hereinafter referred to as “GMID”). The company is said to be engaged in developing residential properties. The said company and the owners (heirs of one Mr. A. Hafeez Khan) of land bearing Survey Number 83 in Jodi Mallasandra Village, District Bengaluru entered into a Joint Development Agreement (hereinafter referred to as the “JDA”) on 17.08.2009. In the year 2017, the apartment project, as contemplated under the JDA, was completed and sale deeds were executed in favour of the allottees.
5. The original owners of the land claimed title on the basis of possessing the sale deed with regard to the said land; order of the Special Deputy Commissioner, Inams Abolition, Bangalore in Case No. 86/1959-60 dated 09.07.1961; Revenue records recording the property mutated in the names of the heirs of Mr. A. Hafeez Khan and given Survey Numbers 83/1 and 83/2 [(old Survey Number 8) new Survey Number 83]. Pursuant to the JDA, the land-owners got the land-use changed from agriculture to non-agriculture and after getting the necessary No-Objection Certificate from various departments involved, obtained the sanctioned map and Building License from the Bruhat Bengaluru Mahanagar Palike (hereinafter referred to as the “BBMP”), before construction commenced.
6. It transpires that one Venkatesh, son of Late Bylappa, was the owner of old Survey Number 83 and his property had been assigned new Survey Numbers 80/1 and 80/3, and due to such change, with the new survey numbers with regard to the land in question being Survey Number 83, the said Venkatesh claimed title over land under the new Survey Number 83. This resulted in prolonged civil litigation which included an application before the Special Tehsildar; appeal before the Assistant Commissioner, Bangalore, North Sub-Division, and; Appeal before the Special Deputy Commissioner – all of which went against Venkatesh.
7. But that is not all. There were also two suits – one filed by the legitimate land-owners, which was a suit for injunction, and one (which we have no hesitation in terming so) a frivolous suit filed by Venkatesh. Since Venkatesh’s suit did not yield any relief, he, along with others, approached the High Court with an appeal, which was also dismissed. In addition to this, Venkatesh also made an application before the Additional Director, Town Planning, BBMP and got the sanctioned plan cancelled. GMID impugned the cancellation before the High Court by way of a writ petition, which was disposed of directing GMID and the owners to approach the BBMP’s Appeal Committee. Upon so doing, BBMP’s Appeal Committee set aside the order of the Commissioner and restored the sanctioned plan.
8. The construction commenced and after GMID having entered into sale agreement(s) with prospective purchasers of the apartments, Venkatesh initiated criminal proceedings against the appellants and others and through his proxies, one of whom, namely, Parvathy Reddy had even been impleaded in the civil suit filed by Venkatesh. Another civil suit being O.S. No. 8163/2016 has also been filed against the land-owners and the builders by other person(s), which, as on date, is still pending. While these civil litigations were being defended by GMID and the original landlords in various courts, a criminal complaint was lodged by the mother of the plaintiff in O.S. No. 8163/2016, under Sections 120B, 406, 419, 468, 471, 420, 448, 427 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). The same metamorphosed into First Information Report in Crime No. 317/2017 at Bagalgunte Police Station, Bangalore City (hereinafter referred to as the “FIR”) under Section 3(1)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the “SC/ST Act”) and Sections 427, 420, 419, 406, 471, 468, 448 and 120B of the IPC. The Managing Director of GMID, namely Gulam Mustafa, the appellant before us is arrayed as Accused No. 18 in the FIR.
9. Insofar as the development on the land is concerned, learned counsel for the appellant has stated that in 2017, the construction of the apartments was completed, sale deeds executed in favour of the respective allottees, and these allottees are residing in their apartments thereafter.
10. The appellant moved a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”) on 28.05.2019 before the High Court for quashing the FIR. The said petition was numbered Criminal Petition No. 3788 of 2019, and the High Court, by order dated 07.08.2019, while issuing notice, granted ad-interim direction staying further proceedings in the FIR as far as the appellant was concerned. However, Criminal Petition No. 3788 of 2019 was ultimately dismissed on 23.02.2021, leading to the institution of the instant appeal.
SUBMISSIONS BY THE APPELLANT:
11. Learned senior counsel for the appellant submitted that firstly, the matter is purely civil in nature as it raises questions relating to title of the land on which GMID had entered into a JDA and constructed apartments after following the due procedure in law.
12. It was submitted that not one but multiple authorities, including revenue authorities, the BBMP, etc. had given requisite permission/s for construction. Moreover, it was submitted that initial civil litigation was also decided in favour of the original land-owners, with whom GMID had signed the JDA.
13. The complaint resulting into the FIR, submitted learned counsel, was at the behest of Venkatesh, who, mischievously, taking advantage of the similarity in the old survey number of his land with the new survey number of the land involved herein, had blatantly abused the process of the court. It was submitted that even when the initial written complaint was filed before the police, GMID was arrayed as Accused No. 19, but in the consequent FIR, the appellant was made party thereto, by naming him as the Accused No. 18.
14. It was submitted that the FIR is a complete abuse of process as it has been filed by a family member of the person, who was unsuccessful in various proceedings against the original land-owners and the builder (GMID), where they could not succeed and that is the reason why Venkatesh had put up his illiterate mother to file a false and frivolous complaint levelling false allegations. It was submitted that the issue of title of the property has attained finality in terms of the decree passed by the Civil Court and no appeal has been filed against the same. It was submitted that even the allegations to bring in the SC/ST Act were deliberate, and with malafide intention.
15. Learned counsel submitted that this Court has repeatedly deprecated the practice of filing false criminal cases in order to apply pressure and settle civil disputes. By way of illustration, he relied upon Govind Prasad Kejriwal v. State of Bihar, (2020) 16 SCC 714; Commissioner of Police v. Devender Anand, 2019 SCC OnLine SC 966; Binod Kumar v. State of Bihar, (2014) 10 SCC 663; Indian Oil Corporation v. NEPC India Ltd., (2006) 6 SCC 736 and G Sagar Suri v. State of Uttar Pradesh, (2000) 2 SCC 636.
16. It was submitted that till date chargesheet has not been filed. It was further submitted that GMID had developed residential apartment complexes of more than 400 units on the self-same land, whereon the complainant’s family unsuccessfully attempted to claim title on multiple occasions, and the FIR is nothing but a vexatious proceeding employed as a tool by the complainant to coerce the appellant to agree to unjustified attempts. It was canvassed that in 2010, the relatives of the complainant had instituted a civil suit seeking declaration of the title of the suit property, which was dismissed in 2016. Subsequently, the sons of the complainant instituted a fresh suit in 2016 and also sought an order to, inter alia, restrain the appellant from entering upon the land in question. The said suit, it is stated, is pending without any interim order in operation.
17. Learned counsel also drew the attention of the Court to the fact that the complainant’s relatives initially tried to interfere with the suit property in 2006 due to which the original land-owners had initiated a civil suit in 2008, which was, in fact, decreed against the complainant’s family members.
18. It was also submitted that the person(s), with whom the appellant had inked the JDA, had purchased the subject-property in 1954-1955 and thereafter, they got occupancy rights of the land on 09.07.1961, and only in 2017, the present criminal dispute had been engineered by the complainant and/or her family members, noted hereinabove.
SUBMISSIONS OF RESPONDENT NO. 2/COMPLAINANT:
19. Learned counsel for the complainant/respondent no. 2 submitted that the appeal is misconceived as the police was in the midst of investigation which should be allowed to be completed. It was submitted that the complainant belongs to the Scheduled Castes/Scheduled Tribes category and is protected thereunder. Learned counsel supported the invocation of the provisions of the SC/ST Act in the FIR. It was submitted that the additional documents, sought to be made part of the present record, were not part of the pleadings before the High Court and thus, may not be looked into. It was contended that it would amount to introduction of new fact(s) in this case. It was contended that Section 482 of the Code requires the court only to see, whether from the complaint, any cognizable offence is made out, which in the present case is made out.
20. It was submitted that as the specific allegations pertain to cheating, criminal conspiracy and trespass, being cognizable offences under the IPC, and the same relating to the property belonging to the Scheduled Castes/Scheduled Tribes community would attract provisions of the SC/ST Act. It was reiterated that the property in question belongs to the respondent no. 2 and her family members, and any construction raised on the subject-land is by creating forged documents.
21. It was then contended that the Court is to be highly circumspect in interfering with investigation and quashing of FIRs. In support of his contentions, learned counsel relied upon the following judgments, and the paragraphs indicated alongside:
i. State of Madhya Pradesh v. Surendra Kori, (2012) 10 SCC 155 @ Paras 14 and 16.
ii. Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 @ Paras 30-31
iii. Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 @ Para 16
iv. P Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 @ Paras 61, 64-67
v. Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, (2021) 5 SCC 795 @ Para 41
vi. Union of India v. Prakash P Hinduja, (2003) 6 SCC 195 @ Para 20
22. Further, advancing that the FIR was not required to be an encyclopaedia, which must disclose all facts and details of the offence(s) alleged or complained of, learned counsel relied upon Superintendent of Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 (at Para 20) and State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324 (at Para 32).
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1/THE STATE:
23. Learned counsel for the State submitted that the matter involves disputed questions of fact which this Court would not go into. It was the submission that the case be left to be investigated into by the police. Further, it was submitted that Dineshbhai Chandubhai Patel (supra) has held that it is the duty of the Investigating Officer to probe the crime, and that the High Court is not to act as an Investigating Officer.
ANALYSIS, REASONING AND CONCLUSION:
24. Having considered the matter, this Court finds that a case for interference is made out. The basic facts to be noticed are: (a) that the land-owners with whom GMID had entered into the JDA, had purchased the land in 1954-1955, and; (b) the occupancy rights were also created in the original land-owners’ favour on 09.07.1961. From then onwards, no dispute was raised by any person before any authority and only after the GMID entered into the JDA with the original land-owners in the year 2009, obtained all clearances from the authorities in their favour, started the construction work and built apartments numbering more than 400, sold them to the buyers/allottees in the year 2017, did the present dispute arise. This itself indicates a lack of bonafide. We have mused as to why the complainant and her family members, if the land was theirs, would sit by and watch on as fence-sitters for a long period of time.
25. Moreover, when one civil litigation had attained finality with no relief granted to the relatives of the complainant, another civil suit was filed in the year 2016 and therein as well, when no interim order could be secured by the complainant/her family members, the present complaint has been registered, resulting in the FIR. We are constrained to state that the malafide appears writ large from the aforenoted sequence of events.
26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”
(emphasis supplied)
27. This Court, in S W Palanitkar v. State of Bihar, (2002) 1 SCC 24, held:
“… whereas while exercising power under Section 482 CrPC the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under CrPC, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 CrPC should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 CrPC to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred.”
(emphasis supplied)
28. In State of Karnataka v. M Devendrappa, (2002) 3 SCC 89, it was decided:
“6. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, 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 recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, 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.”
(emphasis supplied)
29. In Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336, at Para 7 thereof, it was held that when the complaint fails to disclose any criminal offence, the proceeding is liable to be quashed under Section 482 of the Code:
“In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 Code which it has erroneously refused.”
(emphasis supplied)
30. The law on the subject was also examined in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641. In Habib Abdullah Jeelani, (2017) 2 SCC 779, it was opined:
“inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court.”
(emphasis supplied)
31. In Vinod Natesan v. State of Kerala, (2019) 2 SCC 401, this Court took the position outlined hereunder:
“11. … Even otherwise, as observed hereinabove, we are more than satisfied that there was no criminality on part of the accused and a civil dispute is tried to be converted into a criminal dispute. Thus to continue the criminal proceedings against the accused would be an abuse of the process of law. Therefore, the High Court has rightly exercised the powers under Section 482 CrPC and has rightly quashed the criminal proceedings. In view of the aforesaid and for the reasons stated above, the present appeal fails and deserves to be dismissed and is accordingly dismissed.”
(emphasis supplied)
32. The legal position was also considered in Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350. In Mahendra K C v. State of Karnataka, 2021 SCC OnLine SC 1021, this Court stated:
“23. … the High Court while exercising under Section 482 of the CrPC to quash the FIR instituted against the second respondent-accused should have applied the following two tests: i) whether the allegations made in the complaint, prima facie constitute an offence; and ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion that there is sufficient ground to proceed with the complaint.”
33. We are equally mindful of Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, where at Paragraph 68, it was stated that “… The other end the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.” We are at one with this comment. A detailed exposition of the law is also forthcoming in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC OnLine SC 315, which we have factored into, while adjudicating the instant lis.
34. Insofar and inasmuch as interference in cases involving the SC/ST Act is concerned, we may only point out that a 3-Judge Bench of this Court, in Ramawatar v. State of Madhya Pradesh, 2021 SCC OnLine SC 966, has held that the mere fact that the offence is covered under a ‘special statute’ would not inhibit this Court or the High Court from exercising their respective powers under Article 142 of the Constitution or Section 482 of the Code, in the terms below:
“15. Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will be extremely circumspect in its approach. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The SC/ST Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of upper-castes. The Courts have to be mindful of the fact that the SC/ST Act has been enacted keeping in view the express constitutional safeguards enumerated in Articles 15, 17 and 21 of the Constitution, with a twin-fold objective of protecting the members of these vulnerable communities as well as to provide relief and rehabilitation to the victims of caste-based atrocities.
16. On the other hand, where it appears to the Court that the offence in question, although covered under the SC/ST Act, is primarily civil or private where the alleged offence has not been committed on account of the caste of the victim, or where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings. On similar lines, when considering a prayer for quashing on the basis of a compromise/settlement, if the Court is satisfied that the underlying objective of the SC/ST Act would not be contravened or diminished even if the felony in question goes unpunished, the mere fact that the offence is covered under a ‘special statute’ would not refrain this Court or the High Court, from exercising their respective powers under Article 142 of the Constitution or Section 482 Cr.P.C.”
(emphasis supplied)
35. We have bestowed anxious consideration to the precedents cited by learned counsel for the respondents and are of the view that the same are inapposite to the factual scenario herein. Suffice it would be to state that while the propositions laid down therein are not disputed, they do not prejudice the version of the present appellant. Tapan Kumar Singh (supra) and Naresh (supra) indicate that the FIR need not be a detailed one, as it is only to initiate the investigative process and the police should ordinarily be allowed to investigate. This is the general rule, but not a fetter on this Court or the High Court in an appropriate case.
36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no. 2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance.
37. The Court would also note that even if the allegations are taken to be true on their face value, it is not discernible that any offence can be said to have been made out under the SC/ST Act against the appellant. The complaint and FIR are frivolous, vexatious and oppressive.
38. This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty-bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position.
39. For the reasons aforesaid, the Court finds that the High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR. Accordingly, the Impugned Judgment, being untenable in law, is set aside. Consequent thereupon, the FIR, as also any proceedings emanating therefrom, insofar as they relate to the appellant, are quashed and set aside.
40. Accordingly, this appeal stands allowed, without any order towards costs. Pending applications are consigned to records.
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