- (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. It appears that opposite party No. 3 Dr. O. P. Mishra (Senior Superintendent) Principal, C. G. N. (P. G.) College, Gokaran Nath, district Kheri lodged an F. I. R. with the allegation that on -8-5-1998 at about 7. 10 a. m. the petitioner, who was appear ing in the examination of B. A, II year handed over some unauthorised material to the invigilator in the examination room after the distribution of the question papers at 7. 10 a. m. She was appearing on that day in 1998 Studies Hindi Literature II paper. That the petitioner did not make use of the material. That even then in order to save the infectious effect of keep ing the unauthorised material, action was taken against her and second copy was given to her for examination. The F. I. R. was lodged under Section 3/9 of the U. P. Public Examinations (Prevention of Un fair Means) Act, 1988 (hereinafter as the Act ). Acasewas registered. Relevant Sections of the Act ap plicable to the present case are contained In Sections 2 (d), 3 and 9 which are quoted below: "2. Definitions.-In this Act- (a ). . . . . . . . . . . (b ). . . . . . . . . . . (c ). . . . . . . . . . . . (d) "unfair means" in relation to an ex aminee while answering questions in a public examination means the unauthorised help from any person directly or indirectly, or from any material writcen, recorded, copied or printed, in any form whatsoever, or the use of any un authorised telephonic, wireless or electronic or other instrument or gadget. 3. Prohibition of the use of unfair means.- No examinee shall use unfair means at any public examination. 9. Penalty for use of unfair means.- Whoever contravenes or attempts to con travene or abets the contravention of the provisions of Section 3 shall be punished with imprisonment for a term which may extend to three months or with fine which may extend to two thousand rupees or with both. "
(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. The writ petition is allowed. The first information report dated 8-5-1998 in Case Crime No. 174 of 1998 Police Station Kotwali Gola, district Kheri under Section 3/9 of the Uttar Pradesh Public Examina tions (Prevention of Unfair Means) Act, 1998 and consequent investigation are hereby quashed. Writ petition allowed. .;