High Court · 2025

Vs.Vishwanath Gupta), arising out of Case Crime No. 53 of 2022, under Sections 4/10 of U.P. Public Examinations (Prevention of Unfair Means), Act 1998 and Section 188 IPC, Police Station Bilariyaganj, District Azamgarh, pending in the court of Judicial Magistrate, Court No.24, Azamgarh, as well as charge-sheet no.63/2022 dated 29.04.2022 and summoning order dated 26.07.2023, passed in the aforesaid case.

3. Learned counsel for the applicant submitted that in view of the bar prescribed under Section 195 Cr.P.C., the prosecution of applicant for the offence under Section 188 IPC, is permissible only on a complaint in writing made by the competent officer, whose order could have been violated by the accused. The prosecution for offence under Section 188 IPC cannot be initiated on a police report. It was submitted that cognizance for offence under Section 188 IPC against the applicant, is wholly against the law.

4. In sofar as the offence under Section 4/10 of U.P. Public Examinations (Prevention of Unfair Means), Act 1998 is concerned, learned counsel for applicant submitted that every question paper remains covered by three layer envelop and in the present case, only one layer of envelop was found in torn condition as well as it is nowhere mentioned by prosecution that

2. applicant has torn the envelop or misuse the question paper. Learned counsel for applicant further submitted that the said question paper were sealed in envelop and the same was locked and unlocked in presence of the constables who were posted at his school and thus, no prima facie case under Section 4/10 of Act, 1998 is made out but learned court concerned did not consider the matter properly while taking cognizance and summoning the applicant for aforesaid offences. Learned counsel for applicant also submitted that the impugned proceedings are nothing but are abuse of the process of court and thus, the impugned proceedings and chargesheet along with summoning order are liable to be quashed. In support of his contentions, learned counsel for applicant placed reliance upon the judgment passed by Hon'ble the Apex Court in the case of Saloni Arora Vs. State of NCT of Delhi [2017 (3) SCC 286].

5. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and submitted that so far the offence under Section 188 IPC is concerned, the cognizance for the same is permissible only on a complaint in writing by the competent officer, as prescribed under Section 195 Cr.P.C. and thus, the summoning of applicant for the offence under Section 188 IPC does not appear in accordance with law. In sofar as the summoning and proceedings against the applicant under Sections 4/10 of Act 1998 is concerned, learned AGA submitted that whether the offence under Section 4/10 of Act, 1998 is made out or not, that can be decided by the trial court after taking evidence and at this stage matter cannot be examined meticulously.

6. I have considered rival submissions and perused the record.

7. Before proceeding further, it would be apposite to quote Section 195 Cr.P.C., which reads as under:-

3. "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal

4. constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appellable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

8. Thus, in respect of offences punishable under Section 188 IPC, the Court can take cognizance only on a complaint in writing made by the public servant concerned or some public servant to whom he administratively subordinate. In the instant matter, admittedly no such complaint of public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet cannot be treated to be a complaint, as envisaged under section 195 CrPC.

9. In view thereof, taking cognizance for offence under Section 188 IPC by the learned court concerned, is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the applicant on a police report, is not sustainable and the same is liable to be set aside.

10. So far the offence under Section 4/10 of Act, 1998 is concerned, it would be relevant to reproduce the provisions of Sections 4/10 of Act, 1998, which read as under:-

5. “4. Unauthorised possession and disclosure of question paper. - No person, who is not lawfully authorised or permitted by virtue of his duties so to do shall, before the time fixed for distribution of question papers to examinees at a public examination,- (a) procure or attempt to procure or possess, such question paper or any portion or a copy thereof; or (b)impart, or offer to impart, information which he knows or has reason to believe, to be related to, or derived from, or to have a bearing upon such question paper.

10. Penalty for leakage. - Whoever, contravenes or attempts to contravene or abets the contravention of the provisions of Section 4 or Section 5 or Section 6 or Section 7 or Section 8, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.”

10. From perusal of the allegations levelled upon the applicant through the FIR, it cannot be said that no offence under Section 4/10 of Act, 1998 is made out against the applicant and as such, learned court concerned has rightly taken cognizance of offence under the said Act and moreso, this is a disputed question of fact, and would involve appreciation of evidence and at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.

11. In view of the aforesaid discussions, cognizance of offence taken vide order dated 26.07.2023 under Section 188 IPC is not sustainable in the eye of law and as such, learned court concerned is hereby

6. directed to proceed with Case No. 11969 of 2024, (State Vs.Vishwanath Gupta), arising out of Case Crime No. 53 of 2022 only in respect of Sections 4/10 of U.P. Public Examinations (Prevention of Unfair Means), Act 1998.

12. Accordingly, the instant application is allowed in part. Order Date :- 11.4.2025 Vivek Kr. (Saurabh Srivastava, J.) VIVEK KUMAR High Court of Judicature at Allahabad

Vs.Vishwanath Gupta), arising out of Case Crime No. 53 of 2022, under Sections 4/10 of U.P. Public Examinations (Prevention of Unfair Means), Act 1998 and Section 188 IPC, Police Station Bilariyaganj, District Azamgarh, pending in the court of Judicial Magistrate, Court No.24, Azamgarh, as well as charge-sheet no.63/2022 dated 29.04.2022 and summoning order dated 26.07.2023, passed in the aforesaid case.

3. Learned counsel for the applicant submitted that in view of the bar prescribed under Section 195 Cr.P.C., the prosecution of applicant for the offence under Section 188 IPC, is permissible only on a complaint in writing made by the competent officer, whose order could have been violated by the accused. The prosecution for offence under Section 188 IPC cannot be initiated on a police report. It was submitted that cognizance for offence under Section 188 IPC against the applicant, is wholly against the law.

4. In sofar as the offence under Section 4/10 of U.P. Public Examinations (Prevention of Unfair Means), Act 1998 is concerned, learned counsel for applicant submitted that every question paper remains covered by three layer envelop and in the present case, only one layer of envelop was found in torn condition as well as it is nowhere mentioned by prosecution that

2. applicant has torn the envelop or misuse the question paper. Learned counsel for applicant further submitted that the said question paper were sealed in envelop and the same was locked and unlocked in presence of the constables who were posted at his school and thus, no prima facie case under Section 4/10 of Act, 1998 is made out but learned court concerned did not consider the matter properly while taking cognizance and summoning the applicant for aforesaid offences. Learned counsel for applicant also submitted that the impugned proceedings are nothing but are abuse of the process of court and thus, the impugned proceedings and chargesheet along with summoning order are liable to be quashed. In support of his contentions, learned counsel for applicant placed reliance upon the judgment passed by Hon'ble the Apex Court in the case of Saloni Arora Vs. State of NCT of Delhi [2017 (3) SCC 286].

5. Per contra, learned AGA vehemently opposed the prayer sought through the instant petition and submitted that so far the offence under Section 188 IPC is concerned, the cognizance for the same is permissible only on a complaint in writing by the competent officer, as prescribed under Section 195 Cr.P.C. and thus, the summoning of applicant for the offence under Section 188 IPC does not appear in accordance with law. In sofar as the summoning and proceedings against the applicant under Sections 4/10 of Act 1998 is concerned, learned AGA submitted that whether the offence under Section 4/10 of Act, 1998 is made out or not, that can be decided by the trial court after taking evidence and at this stage matter cannot be examined meticulously.

6. I have considered rival submissions and perused the record.

7. Before proceeding further, it would be apposite to quote Section 195 Cr.P.C., which reads as under:-

3. "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal

4. constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appellable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

8. Thus, in respect of offences punishable under Section 188 IPC, the Court can take cognizance only on a complaint in writing made by the public servant concerned or some public servant to whom he administratively subordinate. In the instant matter, admittedly no such complaint of public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet cannot be treated to be a complaint, as envisaged under section 195 CrPC.

9. In view thereof, taking cognizance for offence under Section 188 IPC by the learned court concerned, is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the applicant on a police report, is not sustainable and the same is liable to be set aside.

10. So far the offence under Section 4/10 of Act, 1998 is concerned, it would be relevant to reproduce the provisions of Sections 4/10 of Act, 1998, which read as under:-

5. “4. Unauthorised possession and disclosure of question paper. - No person, who is not lawfully authorised or permitted by virtue of his duties so to do shall, before the time fixed for distribution of question papers to examinees at a public examination,- (a) procure or attempt to procure or possess, such question paper or any portion or a copy thereof; or (b)impart, or offer to impart, information which he knows or has reason to believe, to be related to, or derived from, or to have a bearing upon such question paper.

10. Penalty for leakage. - Whoever, contravenes or attempts to contravene or abets the contravention of the provisions of Section 4 or Section 5 or Section 6 or Section 7 or Section 8, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.”

10. From perusal of the allegations levelled upon the applicant through the FIR, it cannot be said that no offence under Section 4/10 of Act, 1998 is made out against the applicant and as such, learned court concerned has rightly taken cognizance of offence under the said Act and moreso, this is a disputed question of fact, and would involve appreciation of evidence and at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.

11. In view of the aforesaid discussions, cognizance of offence taken vide order dated 26.07.2023 under Section 188 IPC is not sustainable in the eye of law and as such, learned court concerned is hereby

6. directed to proceed with Case No. 11969 of 2024, (State Vs.Vishwanath Gupta), arising out of Case Crime No. 53 of 2022 only in respect of Sections 4/10 of U.P. Public Examinations (Prevention of Unfair Means), Act 1998.

12. Accordingly, the instant application is allowed in part. Order Date :- 11.4.2025 Vivek Kr. (Saurabh Srivastava, J.) VIVEK KUMAR High Court of Judicature at Allahabad