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Sheherazad (llb)     10 November 2009

Advocate act and contempt of court

Please can somebody name 3 case laws from the advocate act and the contempt of court..preferably after 1985...have to make notes regarding the ratio the facts, the issues and the decisions.

If the citation from the AIR is given that would be very helpful. Thanks.



 14 Replies

Adinath@Avinash Patil (advocate)     10 November 2009

ADVOCATES ACT CASE LAWS----

1)ADVOCATES ACT,1961-SEC-35-PROFESSIONAL MISCONDUCT BY APRACTING ADVOCATE-APPELLANT A PRACTCING ADVOCATE WAS REPERESENTING THE OPPOSITE PARTY TO THE RESPONDENT-THAT THE CASE WAS DECIDED ON THE BASIS OF A COMPROMISE-AFTER THE DECISION OF THAT CASE THE APPELLANT/ADVOCATE TOOK A HAND LOAN OF RS.3000/- FROM THE RESPONDENT AND THE APPELLANT ALSO GAVE RESPONDENT A POST DATED CHEQUE AS A  MEASURE OF PAMENT –BUT THE CHEQUE WAS BOUNCED-RESPONDENT THEN FILED APPLICATION AGAINST THE APPELLANT FOR PROFESSIONAL MISCONDUCT –THE APPELLANT WHILE TAKING A HAND LOAN WAS NOT ACTING AS AN ADVOCATE-HE WAS ACTING ONLY AS A NEEDY PERSON  AND THE RESPONDENT  AS A CREDITOR-HENCE THE APPELLANT CAN NOT BE GUILTY OF ANY PROFESSIONAL MISCONDUCT-FURTHER, BY ORDER OF THIS COURT THE APPELLANT HAD DEPOSITED RS.3000/- IN THE REGISTRY-HE IS LIABLE TO PAY RS.1000/- MORE AS A COST TO THE RESPONDENT –PUNISHMENT SET ASIDE AND COMPLAINT DISMISSED.

[1999  SAR [CIVIL] 119.]

2]

A] ADVOCATES ACT,1961-SEC-35-PROFESSIONAL MISCONDUCT OR OTHER MISCONDUCT  ON THE PART OF ADVOCATE-SCOPE OF- RESPONDENT WAS EARLIER AN ADVOCATE-SELECTED AS A JUDICIAL MAGISTRATE-HE THEREFORE ,GOT HIS LICENCE TO PRACTISE SUSPENDED- AFTER SOME  YEARS WHILE IN JUDICIAL SERVICE HE WAS PROSECUTED FOR TAKING OF BRIBE  AND ULTIMATELY DISMISSED FROM SEVICE-HE THUS APPLIED TO BAR COUNCIL TO PERMIT  HIM TO RESUME HIS PRACTICE AS AN ADVOCATE AND WAS ALLOWED- SOME  OTHER ADVOCATES  MADE COMPLAINT AGAINST HIM THAT HE WAS DISMISSED FOR OFFENCE OF BRIBERY HE SHOULD NOT ALLOWED  TO PRACTCE AND ACTION BE TAKEN  AGAINST HIM U/S 35 OF THE ACT FOR PROFESSIONAL MISCONDUCT – IT IS N OT THE CASE OF APPELLANTS THAT AFTER RESUMPTION OF PRACTICE RESPONDENT HAD COMMITED ANY MISSCONDUCT AS AN ADVOCATE- FOR HIS PAST DELIQUENCY HE WAS PUNISHED- PROFESSIONAL MISCONDUCT  CANNOT BE COMMITTED BY ANY ONE WHO IS NOT PRACTISING THE PROFESSION OF LAW BEING AN ADVOCATE ON ROLL OF BAR COUNCIL-IN THE CIRCUMSTANCES OF THE CASE THE ORDER OF BAR COUNCIL OF INDIA THAT NO CASE OF PROFESSIONAL  MISCONDUCT ON THE PART OF RESPONENT ADVOCATE IS PROVED UPHELD – APPEAL DISMISSED.

B]  WORDS AND PHRASES- EXPRESSION “ OTHER MOSCONDUCT” IN SEC.35[1] OF ADVOCATES ACT,1961- MEANING AND SCOPE-DIFFERENCE BETWEEN “PROFESSIONAL MISCONDUCT” AND “OTHER MISCONDUCT”-“OTHER MISCONDUCT” WOULD INCLUDE MISCONDUCT COMMITTED BY ADVOCATE NOT IN HIS CAPACITY AS PROFESSIONAL BUT IS ANY OTHER CAPACITY.

[1999  SAR [CIVIL] 119.]

CASES REFFERED – AIR 1956 SC 102, AIR 1958 AP 209

3] LEGAL PRIFESSION – NATURE AND REQUIREMENTS OF- LEGAL PROFESSION IS A NOBEL ONE HAVING HIGH TRADIIONS-ANY MEMBER OF THE PROFESSION FALLING FROM  SUCH STADARADS DESERVES PUNISHMENT  COMMENSURATE WITH GRAVITY OF MISCONDUCT.

[1999  SAR [CIVIL] 354.]

4] ADVOCATES ACT,1961-SEC-44- ADVOCATE FOUND GUILTY OF PROFESSIONAL MISCONDUCT AND SUSPENDED FROM ORACTICE FOR  3 YEARS- SUCH ADVOCATE PRACTSING  DYRING THE PERIOD OF SUSPENSION OF PRACTICE UNDER DIFFERENT NAME- BAR COUNCIL OF INDIA, ON APPEAL, BY COMPLAINT AWARDING PUNISHMENT OF SUSPENSION FROM PRACTICE FOR 3 YEARS –GUILTY ADVOCATE PREFFERING REVIEW PETITION BEFORE B.C.I. OF SUSPENSION FOR 3 YEARS AND RESTORING ORDER OF ADMONITION PASSED BY STATE BAR COUNCIL-NOT SUSTAINABLE-PUNISHMENT OF SUSPENSION FROM PRACTICE FOR 3 YEARS RESTORED.

[1999  SAR [CIVIL] 472.]

 

       

 

 

2 Like

pooja (student)     19 November 2009

Can anyone help us with recent decided cases for  contempt of court and advocates Act.With proper citation.As we would require this for project purpose.

Adinath@Avinash Patil (advocate)     20 November 2009

CONTEMPT OF COURTS ACT SS 2[B]AND20--- CONTINUING CONTEMPT--PETITION FILED ON 4TH JULY 2002 ALLEGING THAT THE DEFENDANTS HAVE CREATED THIRD PARTY INTEREST IN SUIT PREMISES IN BRACH OF INJUNCTION GRNTED BY COURT ON 24 TH JUNE 1993- PETITIONER IN AFFIDAVIT FILED BEFORE SMALL CAUSES COURT ON 13 TH DECEMBER,2000 DEPOSED ABOUT THEIR KNOWLEDGE ABOUT THE CREATION OF THE THIRD PARTY INTEREST-HELD, THE ACT IS COMPLETED BY THE DEFENDANTS AND IS NOT A CONTINUING WRONG--LIMITATION WOULD HAVE TO BE RECKONED FROM THE DATE OF KNOLEDGE ACQUIRED BY THE PETITIONER IN RELATION TO EXISTENCE OF THAT FACT --PETITION IS TIME BARRED BY LIMITATION. MAHENDRA BUILDERS V/S PARVEZ GHASWALA AND OTHERS.

CONTEMPT PETITION 282/2002

DECIDED ON 31/03/2006[BOMBAY]

MAHARASHTRA LAW JURNOL 2006[3]668.

1 Like

prajakta (student)     13 December 2009

i would like to know

when a case is given to a lawyer by the court   and he refuses to take it just due to fees paid is very less could amount to professional misconduct ?

 

Raghav Sood (Lawyer)     19 December 2009

no it it cannot synoymed with misconduct it is the sweet will of the lawyer to accpt or to deny at the intial stage

NAGARATHNA.A. (assistant professor of law)     20 December 2009

that it is  not misconduct of a lawyer, yet it is a breach of his ethical duty that he owe towards the society and public. the profession of law is regarded as a 'noble' profession and must be 'service oriented'. though an advocate is busy with his other cases, yet he has to devote some time and efforts for 'legal service' [which is one of his ethical duty]

sugandhi Halai (student)     03 February 2010

can any one tell me some of the important cases on professional misconduct?

Abdul Rasheed (-)     09 May 2010

Can any one tell me the Rule regarding the

advocates of Petitioner Can become the advocates of respondent without getting the NOC from Petitioner

if there is rule please give me the detailed

 

Its Urgent

Sushil Kumar Bhatia (Advocate)     14 May 2010

A professional misconduct and contempt of court are different things  If an advocate on roll is misconducting with his client or in profession can be debarred by its state bar council and if an advocate misconducting with the court or in procedure can be prosecuted under contempt of court Allahabad High court has recently given many decesion in contempt of court against advocate see the Allahabad high court site

ADVOCATE SRIDHARABABU (Advocate)     24 May 2010

 

IN A CASE REPORTED IN AIR 2008 SC 3016, JUSTICE C.K. THAKKER AND JUSTICE AFTAB ALAM HAS DISCUSSED FOLLOWING JUDGEMENTS AND OBSERVED AS FOLLOWS, IT IS WORTH RESEARCH TO READ 

 

In Ashok Paper Kamgar Union v. Dharam Godha & Ors., (2003) 11 SCC 1, this Court had an occasion to consider the concept of ‘wilful disobedience’ of an order of the Court. It was stated that ‘wilful’ means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Court, it signifies the act done with evil intent or with a bad motive for the purpose. It was observed that the act or omission has to be judged having regard to the facts and circumstances of each case.

 

51. In Kapildeo Prasad Sah & Ors. v. State of Bihar & Ors., (1999) 7 SCC 569, it was held that for holding a person to have committed contempt, it must be shown that there was wilful disobedience of the judgment or order of the Court. But it was indicated that even negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of Court and power to punish are having far reaching consequences, and as such, they should be resorted to only when a clear case of wilful disobedience of the court's order is made out. A petitioner who complains breach of Court's order must allege deliberate or contumacious disobedience of the Court's order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The Court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course of justice.

 

52. In the celebrated decision of Attorney General v. Times Newspaper Ltd.; 1974 AC 273 : (1973) 3 All ER 54 : (1973) 3 WLR 298; Lord Diplock stated: “There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity.”

 

 

53. In Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors., (2002) 4 SCC 21, this Court held that the Contempt of Courts Act has been introduced in the statute-book for securing confidence of people in the administration of justice. If an order passed by a competent Court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of Court. There can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery. Misunderstanding or own understanding of the Court’s order would not be a permissible defence. It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act.

 

54. In Commissioner, Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689, one of us (C.K. Thakker, J.) observed that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. Upholding of such argument would seriously affect and impair administration of justice.

 

55. In All Bengal Excise Licensees Association v. Raghabendra Singh & Ors., (2007) 11 SCC 374, this Court considered several cases and observed that wilful and deliberate act of violation of interim order passed by a competent Court would amount to contempt of Court.

 

56. A reference in this connection may also be made to a decision of this Court in Tayabbhai M. Bagasarawala v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443. In that case, the plaintiff-landlord filed a suit against the defendant-tenant in the City Civil Court for permanent injunction restraining the defendant from carrying on construction in the suit premises. Ad interim injunction was granted by the Court. Defendant’s application for vacating injunction was dismissed. The defendant, however, committed breach of injunction. The plaintiff, hence, filed an application under Order XXXIX, Rule 2-A of the Code. The defendant came forward and raised an objection as to jurisdiction of the Court and power to grant injunction. The High Court, ultimately, upheld the objection and ruled that City Civil Court had no jurisdiction to entertain the suit. It was, therefore, argued by the defendant that he cannot be punished for disobedience of an order passed by a Court which had no jurisdiction to entertain a suit or to grant injunction. The High Court upheld the contention. The plaintiff approached this Court.

 

57. This Court observed that until the question of jurisdiction had been decided, the City Civil Court possessed power to make interim orders. The Court could also enforce them. A subsequent decision that the Court had no jurisdiction to entertain the suit did not render interim orders passed earlier non est or without jurisdiction. A party committing breach of such orders could not escape the consequences of such disobedience and violation thereof. Accordingly, the Court held the defendant guilty for intentionally and deliberately violating interim order and convicted him under Rule 2-A of Order XXXIX of the Code and sentenced him to one month’s imprisonment.

 

58. Speaking for the Court, Jeevan Reddy, J. stated; “Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/ interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts. (emphasis supplied)

 

59. From the above decisions, it is clear that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. At the same time, however, it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step. If for proper administration of justice and to ensure due compliance with the orders passed by a Court, it is required to take strict view under the Act, it should not hesitate in wielding the potent weapon of contempt.

 

 

In Hiren Bose, Re, AIR 1969 Cal 1 : 72 Cal WN 82, the High Court of Calcutta stated; ”It is also not a matter of course that a Judge can be expected to accept any apology. Apology cannot be a weapon of defence forged always to purge the guilty. It is intended to be evidence of real contrition, the manly consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrong-doer's power. Only then is it of any avail in a Court of justice But before it can have that effect, it should be tendered at the earliest possible stage, not the latest. Even if wisdom dawns only at a later stage, the apology should be tendered unreservedly and unconditionally, before the Judge has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology It ceases to be the full, frank and manly confession of a wrong done, which it is intended to be”.

 

64. It is well-settled that an apology is neither a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, it is intended to be evidence of real contriteness [Vide M.Y. Shareaf v. Hon’ble Judges of the High Court of Nagpur; (1955) 1 SCR 757 : M.B. Sanghi v. High Court of Punjab & Haryana, (1991) 3 SCR 312].

 

65. In T.N. Godavarman Thirumulpad through the Amicus Curiae v. Ashok Khot & Anr., 2006 (5) SCC 1, a three Judge Bench of this Court had an occasion to consider the question in the light of an ‘apology’ as a weapon defence by the contemner with a prayer to drop the proceedings. The Court took note of the following observations of this Court in L.D. Jaikwal v. State of U.P., (1984) 3 SCC 405: "We are sorry to say we cannot subscribe to the 'slap-say sorry and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slipper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology

and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorry-it is another to 'feel' sorry”.

 

66. The Court, therefore, rejected the prayer and stated; “Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward”.

Adinath@Avinash Patil (advocate)     24 May 2010

old case law of contempt of court

PETITIONER:

In re THE EDITOR, PRINTER ANDPUBLISHER OF"THE TIMES OF INDIA

Vs.

RESPONDENT:

ARABINDA BOSE AND ANOTHER.

DATE OF JUDGMENT:

12/12/1952

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

AIYAR, N. CHANDRASEKHARA

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 75 1953 SCR 215

CITATOR INFO :

RF 1971 SC 221 (15)

ACT:

Contempt of Court-Article imputing motives to judges-Gross

contempt-Apology-Practice of Supreme Court.

HEADNOTE:

It is not the practice of the Supreme Court to issue a rule

for contempt of Court except in very grave and serious cases

and it is never over-sensitive to public criticism; but when

there is danger of grave mischief being done in the matter

of administration of justice, the animadversion will not be

ignored and viewed with placid equanimity.

A leading article in the " Times of India " on the judgment

of the Supreme Court in Aswini Kumar Ghose v. Arabinda Bose

and Another ([1953] S.C.R. 1) contained the following

statements: "the fact of the matter is that in the higher

legal latitudes in Delhi the dual system was regarded as

obsolete and anomalous......... There is a, tell-tale note

at the top of the rules framed by the Supreme Court for

enrolment of advocates and agents to the effect that the

rules were subject to revision and the Judges had under

consideration a proposal for abolishing the dual

system......... To achieve a dubious or even a laudable

purpose by straining the law is hardly

216

edifying. Politics and policies have no place in the pure

region of the law and Courts of law would serve the country

and the Constitution better by discarding all extraneous

considerations and uncompromisingly observing divine

detachment............" In proceedings for contempt of

Court: Held, that if the articles had merely preached to

Courts of law a sermon of divine detachment no objection

could be taken, but in attributing improper motives to the

judges, the article not only transgressed the limits of fair

and bona fide criticism but had a clear tendency to affect

the dignity and prestige of the Court and it was therefore a

gross contempt of court.

If an impression is created in the minds of the public

https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3

that the judges of the highest court in the land act on

extraneous considerations in deciding cases the confidence

of the whole community in the administration of justice is

bound to be undermined and no greater mischief than that can

possibly be imagined.

[In view of the unconditional apology tendered by the

Editor, Printer and Publisher and the undertaking given by

them to give wide publicity to their regret, the proceedings

were dropped.]

Andrew Paul v. Attorney-General of Trinidad (A.I.R. 1936

P.C. 141) referred to.

JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 160 of 1952. Contempt of

Court proceedings against the Editor, Printer and Publisher

of the "Times of India" (Daily), Bombay and Delhi, for

publishing a leading article in their paper of October 30,

1952, entitled A Disturbing Decision ".

M. C. Setalvad, Attorney- General for India (P. A. Mehta,

with him) (amicus curiae).

N. C. Chatterjee (Nur-ud-Din Ahmad and A. E. Dutt, with

him) for the contemners.

1952. December 12. The Order of the Court was deliveredby

MAHAJAN J.-In its issue of the 30th October, 1952, the "

Times of India", a daily newspaper published in Bombay and

New Delhi, a leading article was published under the heading

" A disturbing decision ". The burden of it was that in a

singularly oblique and infelicitous manner the Supreme Court

-had -by a majority decision tolled the knell of the much

maligned dual system prevailing in the Calcutta and Bombay

High Courts by holding that the

217

right to practise in any High Court conferred on advocates

of the Supreme Court, made the rules in force in those High

Courts requiring advocates appearing on the Original Side to

be instructed by attorneys inapplicable to them. The

article concluded with the following passage:-

" The fact of the matter appears to be that in the -higher

legal latitudes at New Delhi and elsewhere the dual -system

is regarded as obsolete and anomalous. There is a tell-tale

note at the top of the rules framed by the Supreme Court for

enrolment of advocates and agents to the effect that the

rules were subject to revision and the judges had under

consideration a proposal for abolishing the dual system.

Abolish it by ’all means if the system has outgrown its

usefulness and is found incongruous in the new setting of a

democratic Constitution. But to achieve a dubious or even a

laudable purpose by straining the law is hardly edifying.

Politics and policies have no place in the pure region of

the law; and courts of law would serve the country and the

Constitution better by discarding all extraneous

considerations and uncompromisingly observing divine

detachment which is the glory of law and the guarantee of

justice."

No objection could have been taken to the article had -it

merely preached to the courts of law the sermon of divine

detachment. But when it proceeded to attribute improper

motives to the judges, it not only transgressed the limits

of fair and bona fide criticism but had a clear tendency to

affect the dignity and prestige of this Court. The article

in question was thus a gross contempt of court. It is

obvious that if an impression is created in the minds of the

https://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3

public that the judges in the -highest court in the land

’act on extraneous considerations in deciding cases, the

confidence of the whole community in the administration of

justice is bound to be undermined and no greater , mischief

than that can possibly be imagined. It was for this reason

that the rule was issued against the respondents.

218

We are happy to find that the Editor, Printer and the

Publisher of the paper in their respective affidavits filed

in these proceedings have frankly stated that they now

realize that in the offending article they had exceeded the

limits of legitimate criticism in that words or expressions

which can be construed as casting reflection upon the court

and constituting Contempt had crept into it. They have

expressed sincere regret and have tendered unreserved and

unqualified apology for this first lapse of theirs. We would

like to observe that it is not the practice of this Court to

issue such rules except in very grave and serious cases and

it is never over-sensitive to public criticism; but -*hen

there is danger of grave mischief being done in the matter

of administration of justice,. the animadversion cannot be

ignored and viewed with placid equanimity. In this ’matter

we are of the same opinion as was expressed by their

Lordships of the Privy Council in Andre Paul v. Attorney-

General of Trinidad (1), Where they observed as follows:-

"The path of criticism is A public way: the wrong-headed

are permitted to err therein; provided that members of the

public abstain from imputing improper motives to those

taking part in the administration of justice, and are

genuinely exercising a right of criticism and not acting in

malice or attempting to impair the administration of

justice, they are immune. Justice is not a cloistered

virtue; she must be allowed to suffer the scrutiny and

respectful even though outspoken comments of ordinary men."

In view of the unconditional apology tendered by the

respondents and the undertaking given by them to give wide

publicity to their regret, we have decided to drop further

proceedings and we accept the apology and discharge the rule

without any order as to costs.

Rule discharged.

Agent for the contemners: Rajinder Narain.

(1) A.I.R. 1936 P.C. 141.

219

sampurna (study)     01 July 2011

can contempt of court be filed against a third person, who is not a party to the suit, but court has dircted him to do certain things. and the third person didnt follow the instructions

 

please help me with a suitable case law if possible...

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 July 2011

Many parties who face defeat or face defficulties in conduct of case instantly start blaming the advocate. Please note that there is law and courts and they do not run on the will or pleasure of an advocate.

Sunil S. ( )     01 July 2011

Great!!!!  Very informative, lot of information here.  Thanks Contributors.


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