SINGHAL, J. - (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. It may be observed that Ordinance 152 in Chapter XXX deals with control of unfairmeans and disorderly conduct in connection with the examination. The definition of unfairmeans which has been given therein is as under - "2 (a) Unfair means shall include the following : - (i) making a false representation pertaining to the eligibility of the candidate to appear in the examination; (ii) Communication or attempting to communicate with the Registrar of the University or any person of his office, or Superintendent of Examination, as any person connected with the conduct of examination or with any paper-setter or examiner, with the object of finding out the name and address of the paper- setter or examiner, or finding out the questions that have been set by the paper-setter or examiner, or with the object of influencing an examiner in the award of marks, or with the object of unduly influencing anyone of them in the discharge of his duties in connection with the examinations; (iii) Taking to another candidate or to any unauthorised person inside or outside the examination room during the examination hours without the permission of a member of the supervisory staff, before handing over the answer-book to the invigilator; (iv) Giving or receiving assistance in answering the question appears to or from any other candidate/person in the examination hall or outside during the examination hours; (v) During examination time having in possession or access to; (a) Any paper, book, note or any other unauthorised material which has relevance to the syllabus of the examination paper concerned. (b) Any thing written on the inkpot, cover, inkpot scale, or any other instrument or any kind of furniture or any other substance, which may have relevance to the syllabus of the examination-paper concerned; (c) Any thing written or signs made on the body of the candidate or his clothes/garments-hand-kerchief etc. which may have relevance to the syllabus of examination paper concerned; (d) Anything written, or signs made on the admission card/question paper which have relevance to the syllabus of the examination paper concerned; (vi) Swallowing or attempting to swallow, or destroying or attempting to destroy a note or paper or any other material, or running away with the material with the intention of destroying the evidence of using unfairmeans, or being guilty of causing disappearance or destruction of any such material either by himself or with the assistance of any other person; (vii) Smuggling a question paper or an answer-book (main or supplementary) or part thereof into the examination room/centre or out of it; (viii) Replacing or getting replaced an answer-book (main or supplementary) or part thereof during or after the examination; (ix) Impersonating any candidate or getting impersonated by any person for taking the examination; (x) Copying of a substantial part of any work/material without any acknowledgement by a candidate in his dissertion/thesis/field-survey work; (xi) Tampering with records of an examination; (xii) Using any obscene or abusive language in his answer- book; (xiii) Cheating or attempting to cheat the University in any manner; and (xiv) Any act or omission, by or on behalf of the candidate connected with the examination, whether prior to or subsequent to such examination or the result thereof, which in the opinion of the Syndicate is unfairmeans. (b) Dis-orderly conduct; The candidate on the examination hall or outside but within the campus of the examination centre during the examination shall be under the disciplinary control of the Superintendent of the Centre or his nominee and shall obey his instructions. " Punishment has been provided under clause-3 by cancellation of the result of the paper in respect of which the candidate is found guilty or debarring the candidate from securing admission to a class and appearing at any future examination of the University for a stated period. Clause 2 (a) (v) (c) has covered for anything written or signs made on the body of the candidate falling within the definition of unfair-means. Under this clause, it is not necessary that the said written item having relevance of the syllabus of the examination paper concerned is used or not. The writing by itself is the unfairmeans for which a candidate can be punished under clause 3 of the said Ordinance. In the Act the following statement of object and reasons have been given - "it is being experienced that the menace of unfairmeans being adopted by the examinees and persons conducting the examnations at various examination conducted by the Rajasthan Board of Secondary Examination and various Universities in the State has not been check-mated despite best efforts made by the aforesaid examination bodies. On the contrary threat of death or assault lingers on the persons conducting the aforesaid public examinations. In order to check mate the menace of unfairmeans being adopted in public examinations and also to provide protection and boost the moral of persons conducting the examination, using of unfairmeans at any public examination is proposed to be prohibited by enacting a special law. Any preparation, attempt for assault, hurt or death for the purpose of adopting unfairmeans at any public examination is also proposed to be made an offence. The Bill seeks to achieve the aforesaid objectives. " 'unfairmeans' have been defined in relation to an examination while answering question in a public examination as the unauthorised help from any person or from any material written, recorded or printed, in any form whatsoever or the use of any unauthorised telephonic, wire-less or electronic or other instrument or gadget. The unauthorised help contemplated under this definition clause from the material written is an unfairmeans. The Act is having the criminal consequences and u/s 6 it is provided that whoever contravene or attempts to contravene or abets the contravention of the provisions of Sec. 3 or Sec. 4 or Sec. 5 shall be punished with imprisonment for a period which may extend to three years or with fine which may extend to Rs. 2,000/- or with both. This section provides the penalty for any contravention and also to attempt any contravention is a punishable offence. Even an attempt is made to use unfairmeans in any public examination that by itself will be an offence. The decision relied upon by the learned counsel for the petitioner is based on the facts where the material which was recovered was not pertaining to the question paper in dispute whereas in the present case on an expert opinion it was found that the paper was of Chemistry and the item written on the hand was also a formula of Chemistry. The Apex Court in the case of Guru Nanak Dev University vs. Harjinder Singh (2), has held that non-recovery of the incriminating material from the candidate is of no. consequence and in that context Ordinance 10 of the University was examined wherein the definition of Unfairmeans was given. The definition was considered to be an inclusive definition and not an exhaustive one. The interpretation which the learned counsel for the petitioner has given would mean that any person may attempt in carrying any material in any manner in the examination hall and unless the same is used in answering the examination copy, the offence is not committed. This would frustrate the object of the Act itself. It is not only use of the unfairmeans at any public examination, but even the attempt which is covered by Sec. 6 of the Act and, as such, it cannot be said that the cognizance which has been taken against the petitioner is without jurisdiction. Consequently, the Misc. petition has no force. It is hereby dismissed. . ;