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2023 DIGILAW 367 (UTT)

Dimple v. Sate of Uttarakhand

2023-06-15

SHARAD KUMAR SHARMA

body2023
JUDGMENT : 1. The present applicants were the prospective candidates, who were suppose to participate in the process of selection being conducted by the State Public Service Commission, for the post of Lekhpal and Patwari. As against them, the proceedings by way of a Special Sessions Trial No. 19 of 2023, State Vs. Sanjeev Prakash Chaturvedi and others, have been drawn to be tried for the offences under Section 3/9 of the Uttar Pradesh and Uttarakhand Public Examinations (Prevention of Unfair Means) Act, 1998, (hereinafter to be called as an “Act of 1998)”. 2. In pursuance to the initiation of the aforesaid proceedings, the summoning order has been issued as against the present applicants, being summoning order dated 6th April, 2023, whereby they have been summoned to be tried for the offence under Section 3/9 of the Act, 1998, in Special Sessions Trial No. 19 of 2023, State Vs. Sanjeev Prakash Chaturvedi and others. 3. The argument of the learned Senior Counsel for the applicants, Mrs. Pushpa Joshi, is from the following perspective that :- That since the applicants, herein, are the prospective candidates, who intended to participate in the selection process for the post of Lekhpal and Patwari, they would be falling within the definition of “examinee” as provided under Section 2 (b) of the Act of 1998. The same is extracted hereunder :- “(b) “examinee” means a person who has been granted permission to appear in a public examination and includes a person authorised to act as scribe on his behalf;” 4. On a simplicitor interpretation to the terms ‘examinee’, herein, it means the permission which has been granted by the examining authority to a candidate to participate in the public examination, and it is under that authority, that a candidate holds a right to participate in the selection process. It is not in dispute, that the present applicants, who are the prospective candidates, and they were the examinee for the process of selection, which was being conducted by the State Public Service Commission for the post of Lekhpal and Patwari. 5. The argument of the learned Senior Counsel for the applicants is, that since the applicants are not named in the FIR, they cannot be said to be instrumental at all in commission of the offence under Section 3/9 of Act of 1998. 6. 5. The argument of the learned Senior Counsel for the applicants is, that since the applicants are not named in the FIR, they cannot be said to be instrumental at all in commission of the offence under Section 3/9 of Act of 1998. 6. In order to answer the aforesaid argument, as to whether, what will be the effect of not naming of the present applicants in the FIR, and as also argued by the learned Senior Counsel, as to what would amount to be unfair means for the purposes of attracting the provisions contained under Section 3 to be read with Section 9 of Act of 1998, would be only confined to the “examinees”, which no doubt, the present applicants are. The term ‘unfair means’ as defined under Section 2 (d) of the Act of 1998, which is extracted hereunder, it observes that the examinee herein would mean an examinee while answering the question in a public examination or any person, who unauthorisedly helps directly or indirectly by supplying any material written, recorded, copied or printed to be used in the conduct of the examination. Section 2 (d) of the Act of 1998, is extracted hereunder :- “(d) “unfair means” in relation to an examinee while answering questions in a public examination means the unauthorized help from any person directly or indirectly, or from any material written, recorded, copied or printed, in any form whatsoever, or the use of any unauthorized telephonic, wireless or electronic or other instrument or gadget.” 7. It is not in dispute, that the status of the present applicants would be within the definition contained under Section 2 (b) of the Act of 1998, and further as per the set of allegations levelled in the FIR, on which, the cognizance has been taken, they were found to be unauthorsedly benefited by one Mr. Rajpal, who was instrumental in supplying the examination papers, but the actual benefit and the use of unfair means of the material thus supplied, was by the examinee, would be falling within the definition of Section 3 of Act of 1998. 8. Rajpal, who was instrumental in supplying the examination papers, but the actual benefit and the use of unfair means of the material thus supplied, was by the examinee, would be falling within the definition of Section 3 of Act of 1998. 8. To what extent, the present applicants, who have contributed in the commission of offence under Section 3 of the Act of 1998, to make it punishable under Section 9, would be still a subject matter to be tried by the learned Trial Court when the actual trial commences in relation to the Sessions Trial for which, the summons have been issued. 9. Since the beneficiary of the question papers or any other supplied material as referred to in the definition of unfair means as provided under Section 2 (d) of Act of 1998, would be the examinee, i.e. the present applicants who would be covered by Section 2 (d) of the Act of 1998. The present applicants cannot be said to be ruled out to be involved in the commission of the offence, particularly when, they were the beneficiary of the document which was supplied to them by one Mr. Rampal, and it was used, whose name finds reference in the document, which has been placed on record of the present C-482 Application. 10. The document and its utilization for the purposes of participation in the public examination cannot be confined to be attracted only in relation to an examinee, for the reason being that the ambit and scope of the Act of 1998, has also been made applicable in relation to “any person directly or indirectly”, who are indulged in providing the material to be used by the candidates or the examinee for using the same in conduct of the examination by the public examining body. 11. To what extent the examinee, i.e. the present applicants were the beneficiary to the material supplied as referred to under Section 2 (d) of Act of 1998, would be a matter to be tried by the learned Sessions Court, before whom the proceeding of Sessions Trial is already undergoing and merely because of the fact, that the name of the present applicants do not figure in the FIR, that may not be an exclusive reason to put a challenge to the proceedings of the Sessions Trial, which is yet to be tried on merits. 12. 12. The gravamen of argument of the learned Senior Counsel was an attempt to examine the issue by appreciation of evidence as to upto what extent the present applicants, who were the examinees, were instrumental in utilizing the material supplied for use of same in taking a public examination, it will be falling exclusively in the domain of the Trial Court to decide the same based on appreciation of material to be placed before it. 13. In fact, the learned Senior Counsel has attempted to barge over the emotional fabric, that the present applicants since being the candidates, who were participating in the public examination, their whole career would be spoiled. Spoiling of the career of the candidate cannot be an exclusive reason to exclude them from being prosecuted for the offence, which is yet to be established by conduct of trial. 14. The criminal law is not based or governed by emotions, sentiments or the probable future prospect of a candidate involved in the commission of the offence. That will always be governed upon the establishment of commission of offence based upon the establishment of the offence beyond any reasonable doubt. Merely because their career will be spoiled, cannot be a reason to exonerate them at this stage, when the offence complained of is yet to be tried on merits. 15. Thus the trial in itself on the above ground cannot be ventured into by this Court in the exercise of powers under Section 482 of the Cr.P.C. Hence, this C482 Application lacks merit, and the same is accordingly dismissed. 16. The observation made by this Court is exclusively for the purposes of deciding the present C-482 Application.