POONAM AWASTHI Vs. STATE OF U P

JUDGEMENT

(1.) KUMARI Poonam Awasthi has filed the writ petition for quashing the first information report dated 8-5- 1998 in Case Crime No. 174 of 1998 Police Station Kotwali Gola, district Kheri.

(2.) LEARNED Counsel for the petitioner and learned Government advocate were heard.

(3.) APPLYING the provisions of law on the facts of the present case, it appears that a person can be said to have used 'unfair means' when the person takes "un authorised help" from any material while 'answering questions' in a public examina tion or 'uses' any of the unauthorised things mentioned in the definition of 'un fair means', if the examinee has not taken any help from any person or material and has not made use of any of the un authorised things, then the examinee can not be said to have used unfair means. Section 3 prohibits use of unfair means by an examinee. In the instant case, admitted ly, the examinee had not used any unfair means. She had herself handed over the unauthorised material at 7. 10 a. m. to the invigilator in the examination hall. Ac cording to the F. I. R. the examination started at 7. 10 as it was the first sitting. So, as soon as the question papers were dis tributed the unauthorised material was handed over to the invigilator who had also incidentally seen the material. It has been clearly mentioned that the un authorised material was not at all used by the examinee. It has also been clearly men tioned that in order to save others from the future infectious ill effect (Sankramak Kuprabhav) the examinee was treated as guilty, and so was given another answer book. In view of the facts and circumstan ces of the case, no offence punishable under Section 9 read with Section 2 (d), 3 of the Act was made out. It is relevant to mention that the Act makes specified con duct of the examinee an offence in a case where the examinee uses unfair means as defined under the Act at any public ex amination. Simple possession of any unauthorised material has not been made an offence under the Act. The unauthorised possession or other things of the like na ture might probably be the subject- matter of disciplinary proceedings under some rules of the Education Code/act; but as far as penal provision is concerned, the Act makes it clear that an offence is made out only when the examinee uses unfair means as laid down and understood in clause (d) of Section 2 of the Act. As far as the of fence as defined under the Act is concerned, the examinee could be said to have com mitted an offence under Section 3 when unfair means are resorted to and that too as laid down under the Act. In the instant case the examinee, admittedly, was not using un fair means. Therefore, the F. I. . R. does not show that the examinee committed any cog nizable or non-cognizable offence and definitely the F. I. . R. does not disclose that an offence under Section 3/9 was made out. For these reasons the first information report has to be quashed and consequently the investigation and prosecution on that basis have also to be quashed.