Patna High Court
Case Details
Patna High Court Cr.Misc. No.44960 of 2013 (3) 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44960 of 2013 ====================================================== 1. Dimpal Kumari D/O Sri Devsharan Singh Resident of Village- Gokulpur, P.S. Chandi, Dist. Nalanda 1. The State Of Bihar Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s : Mr. Dhananjay Kumar Tiwary, Advocate For the State : Mr. Sunil Kumar Pandey, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER 03/ 01.11.2013 This petition under section 482 of the Cr.P.C has been filed on behalf of the petitioner for quashing the order dated 16.12.2011 passed by learned Chief Judicial Magistrate, Patna in Hawai Adda P.S. case no.187/2011 corresponding to GR no. 5078/2011 by which and whereunder he took cognizance for the offences punishable under sections 419,420, 468/34 of the Indian Penal Code against the petitioner and others. I have already heard learned counsel for the petitioner as well as learned Addl. Public Prosecutor for the State on the point of admission. On the basis of written report of Uma Shankar Prasad, Information officer, the above stated Hawai Adda P.S. case no.187/ 2011 was registered against the petitioner and others and it is stated in the written report that the petitioner and other accused appeared in counseling for Diploma Certificate Entrance Competitive Examination, 2011 and in course of counseling, it was detected that
Legal Reasoning
Patna High Court Cr.Misc. No.44960 of 2013 (3) 2 their handwritings do not tally with the answer sheets and furthermore, their photographs also do not tally with the photographs of the candidates who had appeared in written examination. Informant came to the conclusion that it was a matter of impersonation Investigating officer investigated the case and having found the case true submitted charge sheet for the offences punishable under sections 419,420, 468/34 of the Indian Penal Code against the petitioner and others and learned Chief Judicial Magistrate, having receipt of the charge sheet, took cognizance of the offences and passed the impugned order dated 16.12.2011 against which this quashing has been filed. Learned counsel for the petitioner assailed the impugned order submitting that learned Chief Judicial Magistrate had got no jurisdiction to take cognizance as alleged offence comes under the purview of the Bihar Conduct of Examinations Act, 1981 and since the Bihar Conduct of Examinations Act, 1981 is a special Act, the prosecution of the petitioner for the offences punishable under the Indian Penal Code is not maintainable. Learned Addl. Public Prosecutor for the State refuted the above stated submissions arguing that learned Chief Judicial Magistrate, Patna rightly took cognizance for the above stated offences. The Bihar Conduct of Examinations Act, 1981 came into existence on 21.1.1982. The object of the aforesaid Act was to provide for penal action for adoption of unfair means at certain examinations held in the State and matters connected therewith. Here, I would like Patna High Court Cr.Misc. No.44960 of 2013 (3) 3 to refer relevant provisions of the aforesaid Act. Section 2. Definitions- In this Act unless there is anything repugnant to the subject or context- and (i) “recognised examination” means any of the the Schedule as also in examinations enumerated examination held under the authority of the State Government or by any body constituted under State tabulation, enactment; publication of results and all matters connected with the examination and publication of results; and (ii) “unfair means” in relation to any examination shall mean taking or giving or attempting to take or give help from any material written or printed or from any person in any form whatsoever. evaluation, includes Section 3. Prohibition of the use of unfair means or cheating at examination- No person shall take recourse to unfair means or resort to cheating at any of the examinations enumerated in the Schedule or any examination held under the authority of the State Government or by any body constituted under State enactment or in any evaluation or tabulation work or with respect to any matter of the recognised examination. Section 11. Nature of offence and trial- Offences committed under the Act shall be cognizable and non-bailable, and shall be disposed of through the procedure of summary trial by Executive Magistrate who have duly and properly been authorized. Section 12. Investigation of cases- The investigation of the cases under the provision of this Act will be conducted by an officer not below the rank of Deputy Superintendent of Police. From bare perusal of the aforesaid provisions, it is clear that the aforesaid Act prohibits to take recourse to unfair means or resort to cheating at any of the examinations enumerated in the Schedule or any examination held under the authority of the State Government or by any body constituted under State enactment or in any evaluation or Patna High Court Cr.Misc. No.44960 of 2013 (3) 4 tabulation work or with respect to any matter of the recognised examination. The first question arises as to whether Diploma Certificate Entrance Competitive Examination, 2011 comes under the definition of recognised examination or not. Admittedly, the aforesaid examination was held under the authority of the State Government. The aforesaid examination was conducted by the Bihar Joint Entrance Competitive examination Board and therefore, according to schedule given in the above Act, the above stated examination comes under the purview of recognised examination. Now, question arises as to whether in the facts of the case, the above stated Bihar Conduct of Examinations Act, 1981 is applicable or not. As I have already stated that section 3 prohibits to take recourse to unfair means or resort to cheating at any of the examinations enumerated in the Schedule or any examination held under the authority of the State Government or by any body constituted under State Rules. Therefore, the aforesaid Act has been enacted to stop the use of unfair means or cheating in the recognised examination. Section 3 of the aforesaid Act is applied when unfair means is used or cheating is committed in the recognised examination. Cheating has been defined in section 415 of the Indian Penal Code and the same has been made punishable under section 417 of the Indian Penal Code whereas cheating by impersonation has been defined in section 416 of the Indian Penal Code and the same has been made punishable under section 419 of the Indian Penal Code. Therefore, it would appear from perusal of section 415 of the Indian Patna High Court Cr.Misc. No.44960 of 2013 (3) 5 Penal Code and section 416 of the Indian Penal Code that there is distinction between offence of cheating as well as offence of cheating by impersonation. Admittedly, the present case relates to the offence of cheating by impersonation and offence of cheating by impersonation does not come under the purview of section 3 of the Bihar Conduct of Examinations Act, 1981 because the word „cheating by impersonation‟ has not been mentioned either in definition of unfair means or any section of the above stated Act. No doubt, if any offence is covered by a special Act or local law, the said offence should be dealt with by special or local law and general law shall not apply in respect of the aforesaid offence but in the present case, admittedly, offence of cheating by impersonation is not covered by the Bihar Conduct of Examinations Act, 1981 and, therefore, I am of the opinion that this petition does not have any merit. On the basis of the aforesaid discussions, this petition stands dismissed on admission stage itself. shahid