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2005 DIGILAW 2214 (RAJ)

Ogad Ram v. State of Rajasthan

2005-08-23

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Through this petition under Section 482, CrPC, the petitioner seeks to quash the order dated 10.08.1998 passed by the Judicial Magistrate No. 10, Jaipur City, Jaipur by which the learned Magistrate has ordered to frame charge under Sections 4 and 6 of the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992 (herein after to be referred to as “the Act”) against the petitioner and others. At the same time, the learned Magistrate discharged some of the accused of the offences alleged against them. 2. It appears that accused Raghuveerdan, Rajesh Sharma, Mohan Singh and petitioner Ogad Ram aggrieved by the order of the learned Magistrate preferred separate revision petitions. The Revision Petition Nos. 212/98 and 219/89 filed by accused Rajesh and Mohan Singh, respectively came to be heard and decided by the learned Special Judge (Sati Nivaran), Jaipur and the learned revisional Court vide its order dated 212.1998 accepted the revisions and quashed the order of the learned Magistrate. The petitioner also preferred revision petition against the order passed by the learned Magistrate, which came to be heard and decided by the learned Special Judge (SC/ST), Jaipur and, surprisingly enough, the learned Judge vide its order dated 22.07.1999 dismissed the petitioners revision petition and affirmed by the order passed by the learned Magistrate. 3. It appears that four accused including the present petitioner challenged the order dated 10.08.1998 passed by the learned Magistrate in four different revision petitions before the learned Sessions Judge. The learned Sessions Judge transferred two revision petitions to the Court of Special Judge (Sati Nivaran) and two revision petitions including the revision of the petitioner to the Court of Special Judge (SC/ST). In my considered view, the learned Sessions Judge ought not to have transferred the revision petitions arising out of the single order to two different Courts. In the case at hand, one Presiding Officer, namely, the Special Judge (Sati Nivaran) vide its order dated 212.1998 accepted the revision petitions and quashed the order dated 10.08.1998 passed by the Magistrate. This order of the revisional Court has attained finality as it was not challenged before the superior Court. Suprisingly enough another Presiding Officer, namely, the Special Judge (SC/ST) vide its order dated 22.07.1999 dismissed the revision petition of the petitioner arising out of the same order dated 10.08.1998. This order of the revisional Court has attained finality as it was not challenged before the superior Court. Suprisingly enough another Presiding Officer, namely, the Special Judge (SC/ST) vide its order dated 22.07.1999 dismissed the revision petition of the petitioner arising out of the same order dated 10.08.1998. Evidently, transfer of revision petitions arising out of common order dated 10.08.1998 passed by the trial Court to two different Courts by the learned Sessions Judge has resulted in conflicting orders. 4. Having gone through the order dated 10.08.1998 passed by the trial Court, the order dated 212.1998 passed by the revisional Court and the order impugned in this petition, it appears that the sole evidence which the investigating agency collected during investigation was, some questions written by the petitioner on the basis of his memory allegedly obtained by him from co-accused Tara Chand in lieu of some amount having been paid to him and an entry to this effect in the diary of Tara Chand. In this view of the matter, it cannot be said that petitioner was found to be in nauthorised possession or discloure of question paper so as to constitute the offence under Section 4 of the Act. 5. It also need be mentioned that the only evidence collected against co-accused Mohan Singh during investigation appears to be the entry in the diary of Tara Chand for alleged payment of money by Mohan Singh for the purposes of getting question papers. Similarly, the evidence collected against accused Rajesh Sharma during investigation appears to be the recovery of one book Upkar Guide and one photostat copy. Rajesh Sharma also alleged to have written some questions on the basis of his memory and an entry in the diary of Tara Chand regarding payment of money by Rajesh Sharma for obtaining question papers was also found. In this view of the matter, it cannot be said that case of the present petitioner is distinguished with that of the cases of Mohan Singh and Rajesh Sharma. In this view of the matter, it cannot be said that case of the present petitioner is distinguished with that of the cases of Mohan Singh and Rajesh Sharma. The revisional Court while allowing the revision petition filed by Mohan Singh and Rajesh Sharma vide its order dated 212.1998 was of the view that the evidence collected against Mohan Singh and Rajesh Sharma was not sufficient to frame charge under Sections 4 and 6 of the Act and accordingly set aside the order dated 10.09.1998 passed by the trial Court, framing charges against Mohan Singh and Rajesh Sharma. 6. Further, there is no reference either in the order of the trial Court or in the orders passed by the revisional Courts that the questions written by the petitioner on the basis of his memory were similar to the questions set out for examination. Thus, the evidence so collected during investigation against the petitioner if taken to be correct on its face value, does not disclose the existence of all the ingredients constituting the alleged offence. In my firm view, there is no material on record as against the petitioner to show that he, before the time fixed for distribution of question papers to the examinees at a public examination procured or attempted to procure or possess such question paper or any portion or copy thereof. 7. That apart, the learned Additional Sessions Judge vide its order dated 212.1998, while allowing the revision petitions preferred by co-accused Rajesh Sharma and Mohan Singh arising out of the same Judgment dated 10.08.1998 passed by the trial Court has taken into consideration every aspect of the matter at considerable length and has come to a definite conclusion that prima facie no offence is made out against the accused petitioners on the basis of evidence and material so collected by the police during investigation and submitted alongwith charge-sheet and in my view, rightly so. In this view of the matter, the impugned order dated 22.07.1999 passed by the learned Special Judge (SC/ST Court) and the order dated 10.08.1998 passed by the trial Court, in so far as they relate to the petitioner cannot be sustained and are liable to be quashed. 8. In the result, this petition succeeds and is hereby allowed. In this view of the matter, the impugned order dated 22.07.1999 passed by the learned Special Judge (SC/ST Court) and the order dated 10.08.1998 passed by the trial Court, in so far as they relate to the petitioner cannot be sustained and are liable to be quashed. 8. In the result, this petition succeeds and is hereby allowed. The impugned order 22.07.1999 passed by the revisional Court as also the order dated 10.08.1998 passed by the trial Court in so far they relate to the petitioner are quashed and set aside.