Arbind Kumar v. State Of Bihar — 1984 DIGILAW 428 (PAT)

Judgment P.S.SAHAY and A.K.SINHA JJ. 1. By this application the petitioners have prayed for quashing the order dated 1-9-1983, passed by the Sub-Divisional Magistrate, Sadar, Patna by which cognizance has been taken under Sections 7 and 8 of the Bihar Conduct of Examinations Act, 1981 (Bihar Act No. 1 of 1982) herein-after referred to as the Act). 2. The present case involves an interesting and important question of law. The decision in the case depends upon the interpretation of Item no. 2 of the schedule of the Act. This Schedule is under Section 2 (i) of the Act. Item no. 2 of the Schedule runs as follows : "Examination conducted by or under the authority of any University established by an Act of the State Legislature". 3. The petitioners were appearing at the examination for Diploma Course in Marketing and Sales Management (1980-81 batch) on 16-8-1982 conducted in the premises of the Lalit Narain Mishra Institute of Economic Development and Social Change, Patna (here-in-after referred to as the Institute). In the second Semester in paper 6th of the Marketing Research the petitioners were found using unfair means by copying from pieces of papers directly related to the main questions and the petitioners were expelled from the examination and debarred from appearing at the subsequent papers of Semester. 4. On the written report dated 16-8-1982 of Shri Chakradhar Sinha, the Controller of Examination and Senior Superintendent of the Institute, an information was lodged at the Kotwali Police Station. It was numbered as Kotwali P. S. Case No. 69 (8) 82. The informant (the Controller of Examination and Senior Superintendent of the Institute), in the aforesaid F.I.R. on the aforesaid facts, prayed for legal action to be taken against the petitioners. This case lodged on 6-8-1982 was under Sections 7 and 8 of the Act. The FIR has been marked as Annexure-2 to the application. It appears from the FIR that the investigation was conducted by the Deputy Superintendent of Police, Law and Order, Patna, and ultimately charge-sheet was submitted against the petitioners (a copy of the charge-sheet dated 1-4-1983 has been marked as Annexure-3 to the petition). Thereafter, on the basis of the charge-sheet, the Sub-Divisional Magistrate, Sadar, Patna, took cognizance by the impugned order dated 1-9-1983 (as contained in Annexure-1 to the petition). 5. Learned counsel appearing for the petitioners has submitted that Item no. Thereafter, on the basis of the charge-sheet, the Sub-Divisional Magistrate, Sadar, Patna, took cognizance by the impugned order dated 1-9-1983 (as contained in Annexure-1 to the petition). 5. Learned counsel appearing for the petitioners has submitted that Item no. 2 of the Schedule under the Act was not applicable to the facts of the case and hence cognizance taken by the Sub-Divisional Magistrate, Sadar, Patna, under Sections 7 and 8 of the Act was bad in law and needed to be quashed. Learned counsel for the petitioners also submitted that the Act itself being not applicable to the examination in question conducted by the Institute, no provision of the Act was applicable on the facts of the instant case and hence the question of contravening Section 7 or Section 10 did not arise at all. 6. These were the only submissions advanced by the learned counsel for the petitioners and no other point was raised before us, In fact, the two submissions, mentioned above, are inter-linked and the point to be determined is mainly whather Item no. 2 of the Schedule under the Act was applicable on the facts of the present case. As stated here-in-before, though apparently, the point seems to be simple, but, in my opinion, is substantial and important one, as such a question, on such a facts, has not been raised in any earlier case (as informed to us at the bar). Learned counsel for the petitioners has fairly conceded that if Item no. 2 of the Schedule under the Act, as it stands was applicable to the facts of the present case, it was difficult for the petitioners to challenge the impugned order of cognizance taken by the court concerned. In short, the learned counsel for the petitioners has submitted that the examination in question was not conducted under the authority of any University established by an Act of State Legislature ; in other words the submission was that the Lalit Narain Mishra Institute of Economic Development and Social Change, Patna, was not an authority of any University established by an Act of State Legislature ; hence, the examination in question conducted by it was not covered under the Schedule of the Act ; and hence, no cognizance would be taken under the Act. 7. 7. Thus, the thrust of the submission was that the Lalit Narain Mishra Institute of Economic Development and Social Change, Patna, was not an authority of any University and, hence, the examination in question conducted by it was not under the authority of any University. 8. This case was earlier listed before the learned Single Judge, who, in view of the importance of the point involved (as to what is the correct interpretation of Item no. 2 of the Schedule under the Act), referred the case to a Division Bench for authoritative decision by his order dated 15-2-1984. 9. In order to appreciate the submissions advanced by the learned counsel for the petitioners, it is essential to state some important relevant facts. Prior to 10th of June, 1975, the Institute was named and known as the Bihar Institute of Economic Development, which was situate at Boring Canal Road, Patna. At that stage also it was known as Bihar Institute of Economic Development. It was recognised by the Magadh University as an Institute for the purpose of research as per the provision of Section 2(i) of the then Magadh University Act. This is obvious from a letter written by the Deputy Registrar of the Magadh University dated 2-3-1974 (Annexure A/2E in the counter affidavit filed by the Institute Respondent no. 2). Thereafter, on the death of Shri Lalit Narain Mishra, the Government of Bihar, Department of Education, vide its Resolution dated 10-6-1975, resolved to establish Lalit Narain Mishra Institute of Economic Development and Social Change, i. e. the Institute, by changing the name of the erstwhile Bihar Institute, of Economic Development. By the same Resolution the Government decided that the entire expenses of the Institute would be borne by the State Government (Education Department) and for this annual grant would be made. It was further ordered to publish the aforesaid Resolution in the Bihar Gazette (this Resolution dated 10-6-1975 has been marked as Annexure-B/2 in the counter affidavit filed by the Institute), Then by another Resolution, dated 21-11-1975, the Education Department of the Government of Bihar, made certain improvements, the important one being tor the proper management and development of the institute. It was further ordered to publish the aforesaid Resolution in the Bihar Gazette (this Resolution dated 10-6-1975 has been marked as Annexure-B/2 in the counter affidavit filed by the Institute), Then by another Resolution, dated 21-11-1975, the Education Department of the Government of Bihar, made certain improvements, the important one being tor the proper management and development of the institute. It resolved that there shall be nominees of the State Government and of the University in the governing body of the Institute and out of such nominated members, there shall be one member each of the Education Department and the Finance Department of the State and one nominee was to be from the Magadh University. Apart from this, the said Resolution provided for a representative of other Universities in turns according to alphabetical order in the name of the University (a copy of this Resolution has been marked as Annexure-C/2 to the counter affidavit filed by the Institute). 10. Subsequently, the Institute approached the Magadh University for granting the Institute the status of an autonomous Institute under the provisions of the Bihar State Universities Act, 1976 (here-in-after referred to as the Universities Act). 11. The Institute was recognised by the University of Ranchi by letter dated 31-3-1976 (a copy of which has been marked as Annexure-G/2 to the counter filed by the Institute). 12. The Institute was also recognised by the Patna University-vide its letter no. G/ 116-22 dated 15-5-1976 (copy of this letter has been marked as Annexure P/2 in the counter filed by the Institute). 13. The Institute was also recognised by the Bihar University, Muzaffarpur-vide letter no. 8,15554 dated 12-5-1976 (copy of this letter has been marked as Annexure-H/2 to the counter filed by the Institute.) 14. Thereafter, on 18-3-1977, the Registrar of the Magadh University, Bodh Gaya-vide letter no. 5412 informed the then Director of the Institute that the Vice-chancellor was pleased to pass orders declaring the Institute to be an autonomous Institute under the Magadh University under Section 73 of the Universities Act, The Vice-chancellor was further pleased to constitute a committee to prepare draft of relevant transitory regulations and syllabi for the examination to be conducted by the Institute. The personnel of the committee was also named in the aforesaid letter (a copy of this letter has been marked as Annexure-D/2 to the counter filed by the Institute). The personnel of the committee was also named in the aforesaid letter (a copy of this letter has been marked as Annexure-D/2 to the counter filed by the Institute). This was in pursuance of the approach made by the Institute, as already stated above. Subsequently, on 23-3-1977, a regular Notification was issued by the Magadh University and a copy of which was sent to the Director of the Institute under Memo No. 580/G dated 23-3 1977 (a copy of this notification has been marked as Annexure-F/2 to the counter filed by the Institute). 15. Thereafter the Chairman of the Institute, on 16-8-1977, wrote to the Vice-chancellor of Magada University, Bodh Gaya, that under Section 73 relating to the autonomy, the Institute had already constituted different bodies like Board of courses of studies, Examination Board, Academic council and the University had already nominated three members on the Board of Courses of Studies but no members had been nominated by the Magadh University in the Examination Board and in the Academic Council as provided under Section 73(c) and 73(d) of the Ordinance ; and, hence, the University was requested for immediate action as the results were ready for consideration of the Examination Board (a copy of this letter has been marked as Annexure-1/2 to the counter filed by the Institute). 16. The Magadh University, Bodh Gaya, in reply to the letter just referred to above, deputed Dr. B. Ganguli, Head of the Post Graduate Department (Economics) as a nominated member in the Examination Board and further informed that the names of the nominees to represent the University in the Academic Council would be sent later. A copy of this letter dated 7-10-1977, has been marked as Annexure-J/2 to the counter filed by the Institute). 17. In due course the Magadh University, by its letter dated 19-9-1979, wrote to the Government of Bihar, Education Department, for according concurrence for the grant of autonomous status to the Institute and requested that the decision of the Government be communicated at an early date to the University. 17. In due course the Magadh University, by its letter dated 19-9-1979, wrote to the Government of Bihar, Education Department, for according concurrence for the grant of autonomous status to the Institute and requested that the decision of the Government be communicated at an early date to the University. In pursuance of this letter of the Magadh University dated 19-9-1979, the Joint Secretary to the Government of Bihar, Department of Education, informed the Registrar of the Magadh University that the Government had agreed to declare the Institute an autonomous Institute, (a copy of this letter of the Government of Bihar has been marked as Annexure-K/2 to the counter filed by the Institute). 18. Though, as just stated above, the Institute was granted autonomous status, the Institute, by way of abundant caution, approached the Magadh University specifically to recognise the diploma course conducted by the Institute and upon which the Registrar of the Magadh Universityvide letter dated 21-11-1979, informed the Director of the Institute that several courses including the Post-graduate Diploma Courses in Marketting and Sales Management were recognised by the University. (a copy of this letter dated 22-11-1979 has been marked as Annexure-L/2 to the counter filed by the Institute). 19. Thereafter the autonomous status granted to the Institute was extended by the Magadh Universit y for a period of three years vide letter dated 19-4-1980, with effect from 6-5-1980. Thus, on facts stated just above, the examination in question in which the petitioners were appearing for the Session 1980-81 (examination held in the year 1982) had the specific recognition of the Magadh University. 20. Thereafter, the Inspector of Colleges, Magadh University, by his letter dated 2-3-1982, write to the Joint Secretary Education Department, Government of Bihar, that the Institute was an autonomous Institute and its Director had requested for permanent affiliation and the same had already been considered by the Vice chancellor, who had recommended for granting permanent affiliation to the Institute (a copy of this letter has been marked as Annexure-M/2 to the counter filed by the Institute). In response to this letter the Government of Bihar, Department of Education, approved/granted permanent affiliation to the Institute (a copy of this letter dated 16-4-1982, has been marked as Annexure-N/2 to the counter filed by the Institute). 21. In response to this letter the Government of Bihar, Department of Education, approved/granted permanent affiliation to the Institute (a copy of this letter dated 16-4-1982, has been marked as Annexure-N/2 to the counter filed by the Institute). 21. The relevant facts stated here-in-before about the Lalit Narain Mishra Institute of Economic Development and Social Change, Patna, have not been controverted by the petitioners, as no reply to the counter filed by the Institute (Respondent no. 2) was filed by the petitioners. Thus, the facts, as stated above, stand uncontroverted. Thus, on the accepted facts, as above, it has to be seen whether the Lalit Narain Mishra Institute of Economic Development and Social Change, Patna, is "an authority of any University" and if so whether the examination in question was under such an authority. 22. Learned counsel for the petitioners, in support of his submission, that the Institute was not an authority of the University, relied upon Section 15 of the Magadh University Act, 1961, and also Section 17 of the Bihar State Universities Act, 1976. Under Section 15 of the Magadh University Act, 1961 the authorities of the University were (1) The Senate, (2) the Syndicate, (3) the . Academic Council, (4) the Faculties, (5) the Evamination Board, (6) the Finance Committee ; and (7) such other authorities as may be declared by the Statutes to be the authorities of the University. Under Section 17 of the Bihar State Universities Act, 1976, the authorities of the University were (1) the Senate, (2) the Syndicate, (J) the Academic Council, (4) the Faculties, (5) The Examination Board, (6) The Finance Committee, (7) the Planning and Evaluation Committee, and (8) such other authorities as may be declared to be the authorities of the University by the statutes. 23. Learned counsel for the petitioners submitted that neither under Item 7 of the Magadh University Act, 1961, nor under Item no. 8 of the Bihar State Universities Act, 1976, referred to above, the statute had not declared any other authority. So far as the submission of the learned counsel for the petitioners that the statute had not declared any other authority under Item no. 8 of the Bihar State Universities Act, 1976, referred to above, the statute had not declared any other authority. So far as the submission of the learned counsel for the petitioners that the statute had not declared any other authority under Item no. 7 of the Magadh University Act, 1961, (referred to above) is concerned, it is enough to say that the submission advanced was absolutely under a misconception because the Magadh University Act, 1961 (Act 4 of 1962) was repealed by Section 81 of the Bihar State Universities Act 1976 (Bihar Act XXIII of 1976) which had received assent on 31-12-1976 and was published in the Bihar Gazette (Extraordinary No. 507 dited 16-5-1977). Thus, it remains only to be seen whether the Institute was declared as an authority of the University under Item no. 8 of the Bihar State Universities Act, 1976, (referred to above). 24. No counter affidavit has been filed by the State of Bihar (respondent no. 2). As already stated above, the counter affidavit, controverting the facts/ submissions made by the petitioners in the petition, was filed by the Institute (Respondent no. 2). Learned counsel for the Institute (Respondent no. 2) contended that the Institute squarely fell "under the authority of any University" of Item no. 2 of the Schedule of the Bihar Conduct of Examinations Act, 1981 (Bihar Act No. 1 of 1982) and in support of his submission he referred to the Bihar Ordinance no. 106 of 1981-known as Conduct of Examinations Second Ordinance, lv81. It seems, the life of the Ordinance was extended by the Third Ordinance. 1981 (Bihar Ordinance 176 of 1981). It is after the repeal of the Third Ordinance (Bihar Ordinance No. 176 of 1981) that the Bihar Conduct of Examinations Act, 1981 (Bihar Act no. 1 of 1982) came into force having received the assent of Governor on 21-1-1982 and published in the Bihar Gazette (Extra-ordinary) on 23-1-1982. Learned counsel for the petitioners, in support of his submission, that the Institute squarely fell under the Schedule of the Act (Bihar Conduct of Examinations Act, 1981), referred to Section 2 (i), Section 3 and Item no. 2 of the Schedule under the Ordinance. Section 2 (1), Section 3 and Item no. Learned counsel for the petitioners, in support of his submission, that the Institute squarely fell under the Schedule of the Act (Bihar Conduct of Examinations Act, 1981), referred to Section 2 (i), Section 3 and Item no. 2 of the Schedule under the Ordinance. Section 2 (1), Section 3 and Item no. 2 of the Schedule under the Ordinance are as follows : S. 2 (i) "Recognised examination" means any of the examinations enumerated in the Schedule and includes an examination held under the authority of the State Government or by the body constituted under State enactments S. 3. Prohibition of the use of unfair means or cheating at examinations No person shall take recourse to unfair means or resort to cheating at any of the examinations enumerated in the Schedule. Item no. 2 of the Schedule :University Examinations. 25. Learned counsel for the Institute (Respondent no. 2) contended that when the Bihar Conduct of Examinations Act, 1981 (Bihar Act 1 of 1982) came into force after repealing the Third Ordinance (Bihar Ordinance No. 176 of 1981), the entire complexion was changed and Section 2 (i), Section 3 and Item no. 2 of the Schedule under the Act were enacted as follows : S. 2 (i) "recognised examination" means any of the examinations enumerated in the Schedule as also examination held under the authority of the State Government or by any body constituted under State enactment; and includes evaluation, tabulation, publication of results and all matters connected with the examination and publication of results ; and......... S. 3. Prohibition of the use of unfair means or cheating at examinations : 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 enactments, or in any evaluation or tabulation work or with respect to any matter of the recognised examination. Item 2 of the Schedule :Examination conducted by or under the authority of any University established by an Act of the State Legislature. 26. Thus, the learned counsel for the petitioners submitted that under the Item no. 2 of the Schedule of the Ordinance, the examination was to be conducted by the University ; WHEREAS under the Item no. Item 2 of the Schedule :Examination conducted by or under the authority of any University established by an Act of the State Legislature. 26. Thus, the learned counsel for the petitioners submitted that under the Item no. 2 of the Schedule of the Ordinance, the examination was to be conducted by the University ; WHEREAS under the Item no. 2 of the Schedule of the Act, the examination was either to be conducted by the University or under the authority of an University. The learned counsel for the Institute, thus, submitted that item no. 2 of the Schedule of the Act widened/enlarged the scope and any examination conducted under the authority of the University fell squarely within Item no. 2 of th Schedule of the Act. 27. Learned counsel for the Institute (Respondent no. 2) also referred to Section 73 of the Bihar State Universities Act, 1976 (Bihar Act XXIII of 1976) and contended that the Institute was a body under the Bihar State Universities Act, 1976. Section 73 of the Bihar State University Act, 1976, state as follows : S. 73. Autonomous college or institute : Notwithstanding anything contained in any provision of this Act, the University may, subject to its adequate supervision and the manner prescribed in the relevant statute confer upon any college or institute having outstanding caliber and fulfilling the prescribed conditions, the powers to make changes or modifications in the courses of studies prescribed by the University for its students, and the privilege to take examinations in such modified course of study and management thereof and such other powers in respect of other matters, as it may deem fit and such institute or college, as the case may be, shall be declared autonomous institute or college. 28. Learned counsel contended that the Institute, admittedly, being an autonomous authority was ipso facto empowered to conduct the examination under Section 73 of the Bihar State University Act, 1976. 29. It would appear from the facts stated above, (vide Annexure L/2 dated 21-11-1979) that serveral courses including the Post-graduate Diploma Course in Marketing and Sales Management were recognised by the University, the Government of Bihar, declared the Institute as a permanent autonomous Institute on 8-5.-1980vide Annexure-K/2 sent by the Joint Secretary to the Government of Bihar, Department of Education, to the Registrar of the Magadh University. 30. Learned counsel for the Institute (Respondent no. 30. Learned counsel for the Institute (Respondent no. 2) submitted, on the uncontroverted facts, that the Bihar Conduct of Examinations Act, 1981 (Bihar Act 1 of 1981) had radically changed the schedule as it stood in the Ordinance and in item no. 2 of the Schedule of the Act (Bihar Conduct of Examinations Act), it included not only the examination conducted by the University (as originally it was in the Ordinaace) but it included also an examination conducted under the authority of the University after the word "or". 31. The Act in question, i. e., the Bihar Conduct of Examinations Act, 1981, neither defines, nor explains, the words "under the authority" used in item no. 2 of the Schedule of the Act and, hence, the word "authority" must be construed according to its ordinary meaning, and, therefore, must mean a legal power given by one person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can in a certain manner without incurring liability, to which he would be exposed but for the authority, or so as to produce the same effect as if the person granting the authority had for himself done the act. The words "under the authority, such as where an agent or a servant acts under or pursuant to to the authority of his principal or master". 32. This in my opinion, is the meaning/interpretation of the words "under the authority of". 33. The question then is whether the Lalit Narain Mishra Institute of Economics Development and Social Change, Patna, has conducted the examination in question under the authority of the University. In my opinion, once the Institute was granted autonomous status, it beca i.e entitled to conduct examinations and its courses of studies also got recognized by the Magadh University including the Post-graduate Diploma Course in Marketing and Sales Management (The examination in question). The Institute was duly declared an autonomous Insiitute not only by the Magadh University but also by the State Government, Department of Education, Bihar. The entire expenses of the Institute is borne by the State Government, Department of Education. As stated earlier, the Institute was also recognised by the Patna University. as well as by the Ranchi University (vide Annexture-F/2 and G/2 respectively). The entire expenses of the Institute is borne by the State Government, Department of Education. As stated earlier, the Institute was also recognised by the Patna University. as well as by the Ranchi University (vide Annexture-F/2 and G/2 respectively). For the reasons hereinbefore stated, in my opinion, the examination conducted by the Institute, including Semester examination, are examinations which are duly recognised by the Magadh University. These examinations conducted by the Institute are also regulated by the Examination Board on which there are nominees of the Magadh University. I hold that the Semester examinations are not internal examinations of the Institute as contended by the learned counsel for the petitioners. I further hold that the Institute being an autonomous Institute and having been made permanent autonomous body (vide Annexure K/2), has the right and power to conduct the examinations which it does. Thus, for the reason stated hereinbefore, I hold that the Lalit Narain Mishra Institute of Economic Development and Social Change, Patna (Respondent no. 2) is an authority of the University (Magadh University) and the examination in question conducted by it falls squarely under the words under the authority of any University" and thus the examination in question conduct by it fell within Item no. 2 of the Schedule of the Act. I further hold that the Act (Bihar Conduct of Examinations Act, 1981) was fully applicable to the examination in question conducted by the Institute and thus the provisions of the Act were fully applicable in the instant case. 34. In view of what I have held above, the main submission advanced by the learned counsel for the petitioners fails and is without any substance. 35. Having held as above to the effect that the Bihar Conduct of Examinations Act, 1981, was applicable in the instant case. The only question that remains to be considered is whether the cognizance taken by the Sub-Divisional Magistrate, Sadar, Patna, under Sections 7 and 8 of the Act (in Kotwali P.S. Case No. 769 (8) (82) suffers from any illegality. 36. The present application is under Section 482 of the Code of Criminal Procedure, 1973; in other words, the petitioners have asked this Court to exercise its inherent power to quash the cogaizance. 36. The present application is under Section 482 of the Code of Criminal Procedure, 1973; in other words, the petitioners have asked this Court to exercise its inherent power to quash the cogaizance. The inherent power of the High Court under Section 482 of the Code of Criminal Procedure, 1973, is at par with the earlier Section 561 (a) of thr Old Code of Criminal Procedure. It is well settled that the inherent power of the High Court cannot be exercised in regard to the matters specifically covered by the other provisions of the Code. It is also well settled that the inherent jurisdiction of the High Court can be exercised to quash the proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceeding at an interlocutory stage. It is also settled that it is not possible, desirable or expedient to lay down any inflexible rule, which would govern the exercise of this inherent jurisdiction. However, if there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, the criminal proceeding can be quashed. Again, if the allegations in the FIR or the complaint taken at their face value do not constitute the offence alleged, the criminal proceeding c an be quashed. In exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, the High Court would not embark upon an enquiry as to whether the evidence in question was reliable or not. This is ths function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not sustained. Broadly stated, this is the nature and scope of inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973, in the matter of quashing the criminal proceeding. The aforesaid principles are well settled by several judicial decisions dealing with the nature and scope of the inherent jurisdiction of the High Court. 37. Broadly stated, this is the nature and scope of inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973, in the matter of quashing the criminal proceeding. The aforesaid principles are well settled by several judicial decisions dealing with the nature and scope of the inherent jurisdiction of the High Court. 37. The aforesaid principles of law being well settled, it is to be seen whether the cognizance taken in the inherent case suffers from such an illegality which warrants interference by the High Court by exercising its inherent jurisdiction. 38. Sections 3, 7 and 10 of the Bihar Conduct of Examinations Act, 1981 (Bihar Act 1 of 1982) are as follows : S. 3. Prohibition of the use of unfair means or cheating at examinations : 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 constitute under State enactments, or in any evaluation or tabulation work or with respect to any matter of therecognized examination. S. 7. Restriction on fake papers :No person shall procure, possess, distribute or otherwise publicise or cause to be publicized any question paper as being the one or purporting to be the one that is to be given or likely to be given at an ensuing recognized examination. S. 10. Penalty :Whoever contravenes any of the provisions or the provision of Sections 3 to 9 shall be punished with imprisonment which may extend to six months but shall not be less than one month or with fine which may extend up to rupees two thousand or with both. 39. Cognizance in the instant case has been taken under Sections 7 and 10 of the Act, as stated above. Learned counsel for the Institute (Respondent no. 2) has fairly conceded that the cognizance taken under Section 7 of the Act (as quoted above) was bad in law ; as taking the face value of the FIR, no case has been made out under Section 7 of the Act against the petitioners. 40. As would appear from Section 10 of the Act (quoted above) it deals with the penalty for contravention of any of the provisions of the Act or of the provisions of Sections 3 to 9 of the Act. 40. As would appear from Section 10 of the Act (quoted above) it deals with the penalty for contravention of any of the provisions of the Act or of the provisions of Sections 3 to 9 of the Act. Larned counsel for the parties have taken me to the FIR (Annexure 2 to the position). A mere perusal of the FIR is enough to show that a prima facie case is made out under Section 3 of the Act and by the impugned Annexure (Annexure-1) dated 1.9.1983, the court below has taken cognizance in the case. It is true that in the impugned order taking cognizance, Section 7 has been mentioned and not Section 3 under which a prima facie case is made out. On perusal of the FIR the question remains whether wrong mentioning of the section in the order of cognizance makes the order illegal so as to warrant interference by this Court. In my opinion, mentioning of Section 7 of the Act in the impugned order (Annexnre-1) must be taken to be as redundant and hence it does not vitiate the cognizance taken. If the Act was applicable in the instant case (as I have already held above that the Act was applicable in the instant case), one who takes recourse to unfair means or resorts to eheating at any of the examinations enumerated in the schedule falls within the ambit of Section 3 of the Act. The FIR (Annexure 2) given its face value makes out a prima facie case against the petitioners under Section 3 of the Act. Whether there is contravention of this statutory provision enacted in Section 3 of the Act is a matter still to be adjudicated. In my opinion, it would be unwise to ignore the existence of Section 3 of the Act and to dispose of the proceeding as if Section 3 was not there, Thus, I hold that, as the FIR in the present case makes out a prima facie case under Section 3 of the Act, wrong mentioning of Section 7 in the impugned order must be taken to be redundant and in that view of the matter I hold that it does not vitiate the order. 41. Learned counsel for the petitioners has not contended that taking the face value of the FIR and accepting the same in its entirety it does not constitute an offenee. 41. Learned counsel for the petitioners has not contended that taking the face value of the FIR and accepting the same in its entirety it does not constitute an offenee. Thus the faint argument advanced by the learned counsel for the petitioners that the impugned order (Annexure-1) should be interfered with as cognizance taken under Section 7 was bad also fails. 42. Learned counsel for the petitioners also faitly submitted that if there were two reasonable constructions (with regard to Item no. 2 of the Schedule of the Act), the Court must give the more lenient one as that, according to the learned counsel for the petitioners. was the settled view for the construction of the penal sections. Broadly speaking this submission advanced by the learned counsel for the petitioners has received judicial approval, but in the instant case I hold for the reasons stated above, that Item no. 2 of the Schedule of the Bihar Conduct of Examinations Act, 1981 (Bihar Act 1 of 1982) does not suffer of two reasonable constructions. It could only be constructed in the way in which I have construed above, and thus this submission of the learned counsel for the petitioners also fails. 43. In the result, the application is dismissed and I direct that the court below will proceed in accordance with law. (The words in this judgment have been under ined by me for emphasis).