AJAY PRAKASH MOHAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal miscellaneous petition under Section 482 Cr. P. C. has been filed against the order dated July 15, 1994 passed by the Addl. Civil Judge (Junior Division) and Judicial Magistrate No. 6 Jaipur City, Jaipur by which the charge was framed against the petitioner under Sec. 3/6 of the Rajasthan Public Examinations (Prevention of Unfair Means) Act, 1992 (for short, the Act ). It is submitted by the learned counsel for the petitioner that in the present case the petitioner was found to have used unfair means in the examination of Chemistry 1st paper of B. Sc. Part I. It is alleged that some illegible words were written on the left palm of the accused petitioner and Dr. R. K. Jain, Lecturer has certified that it is a formula written by the accused which is related to the chemistry. Though, it is mentioned that it is a wrong formula and the question, in respect thereof was not in the examination paper. It is on this basis that the learned counsel for the petitioner has submitted that when the formula has not been used the petitioner cannot be charged for the alleged offence. Reliance has been placed on the decision in the case of Shravan Kumar vs. State of Rajasthan (1), wherein it was held that when a paper is found in the pocket relating to the paper of general knowledge, when the petitioner was appearing in the examination of Political Science the offence within the meaning of Sec. 3 of the Act cannot be said to have been committed. The petitioner could at the most be said to have been made preparations for committing the offence. Charge so framed was quashed. The provisions of Sec. 3 of the Act read as under - "3. Prohibition of use of unfair means - No person shall use unfair means at any public examination. " The definition of 'unfairmeans' as given in Sec. 2 (c) of the Act reads as under - "unfairmeans' in relation to an examination while answering question in a public examination, means the unauthorised help from any person or from any material written recorded or printed on any form whatsoever or the use of any unauthorised telephonic, wireless or electronic or other instrument or gadget;. " On the basis of the above definition it is submitted that there should be actual unauthorised help from any person or any material written, recorded or printed. It is submitted that no help was taken by the petitioner, and therefore this part of the definition of unfairmeans is not fulfilled. It is also submitted that the later part of the definition refers to the use and since it has not been used, it cannot be said to be unfairmeans.

(2.) THE submission of the learned counsel for the petitioner is that even if a candidate has kept in his pocket anything while answering the question which ultimately is not found in the examination paper, he cannot be said to have committed the offence.