Harnath Singh Chauhan v. Vinod Prakash Saxena — 1992 DIGILAW 505 (MP)

JUDGMENT Hamathsingh Chauhan has filed this revision against the order dated 27.1.1989 passed by the Judicial Magistrate First Class, Gwalior (Smt.Aradhana Chobey) in a proceeding u/s 3-D(2) and section 6 of the Madhya Pradesh Recognised Examination Act, 1973 (No.XX of 1937) and with section 4 of the said Act. The brief facts of the case are that the petitioner filed a complaint under the aforesaid section alleging that he is a regular student of L.L.B., Part I, and he has an interest in making struggle against descending standard of education in educational institutions. An Organization known as "Sarthak Sangathan" has also been formed of which he is the Secretary and consequently he is competent to file this complaint. On 6.1.1988 one Dr. V.P. Saxena, accused No.1, got a notice affixed on the notice board that the students who do not attend the M.Phil classes will not be allowed to appear in the examination. Dinesh Kumar Mishra and Arvind Kumar Shrivastava started a campaign alleging that in the Department of Mathematics most of the time is spent in the name of Seminar and teaching is not conducted in the classes. Not only this but teachers for want of time are allowing the students to indulge in copying, and the students are engaged in writing their private books. On the basis of this information the complainant tried to find out the source of information and source of the copying activity. On 20.7.1988 there was a news item in the daily Swadesh that a case has been registered against Dr. V.P. Saxena in which large scale copying has been done. It was also contended that classes of M.Phil were started in the University from July 1985 and a written examination was conducted in 1986 out of which the examination in three papers was held in 1987 and then after the work regarding preparation of Thesis was started. Out of the five students who appeared in July 1987 batch, two of them failed and three passed. One of them was Ku. Asvindar Kaur Mauj, one student who had failed was Arun Kumar Tripathi. Ku. Asvinder Kaur Mauj prepared her Thesis under the guidance of Dr. V.P. Saxena and the topic on which she conducted research, is the Quadratic shape function in variational finite element approach to temperature distribution in Layered Human Dermal Region. One of them was Ku. Asvindar Kaur Mauj, one student who had failed was Arun Kumar Tripathi. Ku. Asvinder Kaur Mauj prepared her Thesis under the guidance of Dr. V.P. Saxena and the topic on which she conducted research, is the Quadratic shape function in variational finite element approach to temperature distribution in Layered Human Dermal Region. The Thesis of Arun Kumar Tripathi was being prepared under the guidance of Dr. Smt. Renu Jain, accused no.2. The topic of his research and Thesis is "Unsteady State Heat Flow. "In The Dermal Layer of Human Limbs". It was alleged to be prepared by the Arun Kumar Tripathi. The petitioner's contention is that both the Thesis are copies of each other. Most of the paragraphs are common. The common portion of the two Thesis have been mentioned in Schedule I attached to the complaint. The applicant's contention is that as a result of the copying indulged by both the research students has resulted in the committal of offences under section 3-D(2) of the M.P. Recognised Examination Act, 1973, and is in violation of section 3 thereof and as defined u/s 4 of the said Act. For reasons known to the applicant himself the set of two students who had prepared the Thesis, namely, Arun Kumar Tripathi and Ku. Aswinder Mauj have not been arrayed as accused. The reason according to the complainant being that they have committed the offence on the directions of the two accused, namely, Dr. V.P. Saxena and Dr. Smt. Renu Jain. Ordinance No.14 has been issued under the M.P. Viswavidyalaya Adhiniyam, 1973, as a result of which in order to pass M.Phil Examination it was necessary to clear in three Theory papers and one in dissertation. In accordance with Ordinance No. 14 clause (viii) a certificate has to be issued by the Guide that the research work bas been carried out by the student such certificates have been attached in both the Thesis. The complainant's grievance is that the said certificates are incorrect because they are not genuine. Thesis prepared by the students are also not an out come of own investigation of the students. Not only this but because it is the out-come of copying. The contention of the complainant is that even if it is the students themselves who have made copies for Guide, namely, Dr. V.P. Saxena and Dr. Thesis prepared by the students are also not an out come of own investigation of the students. Not only this but because it is the out-come of copying. The contention of the complainant is that even if it is the students themselves who have made copies for Guide, namely, Dr. V.P. Saxena and Dr. Smt. Renu Jain could not have issued a certificate to this effect that it was an original and genuine work. It was expected of them that they would have compared the two Thesis and refused to issue a certificate that it was a genuine work. Incidentally the two accused persons are connected in one way or the other with the research of the two students. Dr. V.P. Saxena is guide of Aswinder Mauj and Dr. Smt. Renu Jain is the Guide of Arun Kumar Tripathi and Dr. V.P. Saxena is Co-Guide. There was every opportunity for them to note whether the two Thesis are genuine work of the students. The complainant examined one Hamathsingh Chauhan a student of LL.B. Part I as solitary, witness before the Magistrate. Besides this, oral evidence, the Thesis submitted by the students were also filed for a comparison and particularly the portions which are said to be the copy. A certificate of the teachers that it is a genuine work of the students was also filed before the Court below for a comparison. I have heard the petitioner's Counsel and gone through the impugned order. The learned Magistrate has not discussed the evidence properly. He has mainly relied on the oral statement of P. W.1. The main thrust of the learned Magistrate in dismissing the complaint was that P.W.1 was a student of LL.B. Part I, and not of Mathematics. Possibly the learned Magistrate was of the view that P. W.1 was not competent to give any statement on a subject which was technical and with which he had no concern. His statement cannot be equated with that of an expert. In the absence of any expert evidence the learned Magistrate refused to accept the contention of the complainant that the portions of the two Thesis are true copies of each other. His statement cannot be equated with that of an expert. In the absence of any expert evidence the learned Magistrate refused to accept the contention of the complainant that the portions of the two Thesis are true copies of each other. Before parting with this case and arriving at any conclusion, I would like to point out here that it was also argued vehemently by the learned Counsel that as a result of the notices having been issued by the High Court to the accused persons they do not get any right to be heard in a revision against an order of dismissal u/s 204 Cr.P.C. This argument has no legs to stand and it is contrary to the statutory provision of law. Proviso added to section 398 Cr. P .C. says "that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made". In this view of the matter even an order for further enquiry by the Magistrate cannot be passed without hearing the accused. Having considered the complaint, the evidence and the order of the learned Magistrate I feel that the approach of the learned Magistrate in arriving, her decision has not been correct. She has allowed herself to be misdirected in dismissing the complaint on the ground that P.W.1 was just a student of LL.B. having no expert knowledge and, therefore, no prima facie, case having been made out that the complaint was liable to be dismissed. It is true that P.W.1 was not an expert on the subject whether the Thesis submitted by the two students was the result of copying or adopting unfair means but in all the cases it is the settled law that the Court itself is the best expert. I cannot resist the feeling of expressing it that the learned Magistrate should have herself gone through the record of the Thesis submitted by the students and compared the two portions of which copies were submitted to her to see whether there was repetition in the two thesis or not and whether the certificate of the work being genuine was correct or not in view of the fact that certain portions were common in both the Thesis. Since the case has not been properly treated by the Court below and the approach is not proper, I think there is no option but to accept the revision and send it back to the Magistrate concerned to decide it in the light of the observations made above. The order of dismissal is set aside, the Magistrate will decide the case in the light of the observations made by this Court. Parties may appear before the lower Court on 28.8.1992. This order will also govern Criminal Revision No.53 of 1989 (Dr. Ramnaresh Pandey v. Dr. Vinod Prakash Saxena). A copy of this order shall be placed in the record of Criminal Revision No.53/1989.