Saturday, 11 June 2016

Whether anticipatory bail can be granted for offence of malpractices in examinations?


 Challenge is given under section 7 and it was argued vehemently
that section 7, which is non-bailable, cannot be invoked. Under section 7,
the phrase 'use of any other unfair means' takes care of all mal-practices
or the misdeeds done when the examination is conducted. Though the
punishment is upto 6 months, the offence is made non-bailable because of
the nature and gravity of the offence. At the time of conducting
examination, the degree of sanctity required is very high and, therefore, it
is made non-bailable. The word 'examination' is defined under section
2(b) of the Act. It is as under:
“2(b). “Examination” means any examination held or proposed to be
held by any University or the Board and includes such other
examination held or proposed to be held by such other authority as
may be specified in this behalf, from time to time, by the State
Government by notification in the Official Gazette.”
 The section is clear that if at all the examination is conducted by the
University or Board, then, it is covered under the examination as defined
under the Act. Besides this, when an examination is conducted by any

other authority than the university and the Board, then, the State
Government may issue notification in the official gazette specifying the
authority and the examination. I cannot accept the submission of the
learned Public Prosecutor that the “Collector” himself is to be considered
as a authority. On plain reading of the section, the legislature did not
intend to give standing authority to the Collector in respect of conducting
examination. “The other authority as may be specified' means that the
State Government has option to issue notification in the official gazette
about the said authority and once such authority is specified in the official
gazette, then, the examination conducted by the said authority, comes
within the sweep of the word 'examination' as defined under section 2(b) of
the Act and then only section 7 of the Act can be attracted. In the absence
of such notification, if the examination is conducted by any authority, then
that examination is valid and legal, however, the said Act cannot be made
applicable to that examination. However, to bring that examination within
the ambit of section 2(b) of the Act, the State Government needs to issue
notification in the official gazette specifying the authority. In the absence
of such notification, the examination cannot be an examination under 2(b)
of the Act and, therefore, if the mal practices have taken place during such
examination, cannot be said as offence as under section 7 of the Act.
Thus, notification issued by the State Government enables to bring the
acts, misdeeds, malpractices committed within the ambit of section 7 of

the Act. I am in agreement with the learned Prosecutor that the word 'may'
is not to be read as the word 'shall'. The choice is given to the State
Government to issue notification, specifying the authority. If the State
Government does not want to specify the authority, then, if any malpractice
takes place, at the time of conducting of any examination, in the absence
of such notification, those malpractices cannot be said as offences under
section 7 of the Act. Therefore, to that extent, for the interpretation of
section 7, I am with the learned Counsel for the applicants-accused.
However, the prosecution has not restricted the charges only to section 7
of the said Act but has also charged the applicants/accused under
sections 420, 464, 468, 471 of the Indian Penal Code which are nonbailable.
The manner in which the offence is committed, the custodial
interrogation of the applicants-accused is necessary. The absconding real
candidate is also to be traced. As it is a case of cheating, fraud and
forgery, I am not inclined to grant pre-arrest bail to the applicants/accused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.1851 OF 2015
Gajanan Ramrao Lande

Vs.
The State of Maharashtra ... Respondent

 CORAM: MRS.MRIDULA BHATKAR, J.
 DATE: MARCH 21, 2016
Citation: 2016 ALLMR(cri)2168

1. The anticipatory bail application No.1851 of 2015 is moved by the
applicants-accused Gajanan Lande and Rajiv Lande for pre-arrest bail as
the offence is registered at C.R. No.II-2 of 2015 with the Tarapur police
station, Palghar, at the instance of one Suresh Govindrao Bhamre on
18.10.2015. The anticipatory bail application No.1852 of 2015 is moved
by the applicant-accused Gajanan Lande for pre-arrest bail as the offence

is registered at C.R. No.II-21 of 2015 with the Manikpur police station,
Palghar, at the instance of one Dinesh Narayan Pashte on 18.10.2015.
Initially the complaints were registered under sections 188 and 120B of the
Indian Penal Code as also under section 7 of the Maharashtra Prevention
of Mal Practices At University, Board and other Specified Examinations
Act, 1982. However, later on, charges under sections 420, 464, 468, 471
of the Indian Penal Code were added.
2. It is the case of the prosecution that both the informants are public
servants. The office of the revenue department wanted to appoint clerks
cum typists in the said department in District Palghar. So, the examination
was conducted on 18.10.2015 afternoon. The candidates who were
appearing for the examination were issued admit cards and they were
instructed not to carry cell phone and other electronic articles with them.
In Anticipatory Bail Application No.1851 of 2015, 216 candidates
appeared for the examination. The invigilator found that one candidate
Sangita Narayan Suradkar had kept cellphone on her lap and it was
seized. There was no message in the phone and therefore she was
allowed to write the paper. The said cellphone was handed over to a
police officer. The examination started at around 11 am. At around
12.45pm, the police constable informed that on her cellphone, answers of

question paper for which she was appearing were received from one
number 7219038682. Sangita was therefore arrested on the spot and the
cellphone alongwith the SIM card was seized.
In Anticipatory Bail Application No.1852 of 2015, 17 candidates
appeared for the examination at Vartak high school. One candidate by
name Arun Shamrao Gavli entered the examination hall at 10.55 hours.
He was checked by the complainant who was in charge. All the
candidates were informed that they should not keep any cellphone or any
other articles with them. At around 11.30am, the movements of the said
Arun Gavli were found suspicious and on his examination, it was found
that he had tied a cellphone with a rubber band below his knee joint The
video recording of the incident was done and on examination, it was found
that on his cellphone, messages about answers were received from other
cellphone number 9168999354. The candidate Arun Gavli was arrested.
After the arrest, the police investigated the offence and they found that
there was a racket about copying in that examination. The students who
were appearing for the examination were promised that the answers of
questions would be supplied to them by SMS on their respective
cellphones at the time of examination, so that they could clear the
examination and get the job. For that purpose, the applicants/accused
and the co-accused charged Rs.2 lakhs from each candidate.

3. The learned Counsel for the applicants/accused submitted that the
applicants are innocent. They have not committed any offence. The
allegations against them are false. The names of the applicants is not
mentioned in the FIR. They are not connected in any manner with the
commission of offence. The learned Counsel further submitted that section
7 of the Maharashtra Prevention of Mal Practices At University, Board and
other Specified Examinations Act, 1982 (for short, 'the said Act') is not
applicable in the present cases because the said examination cannot be
said as an 'examination' under the term defined under section 2(b) of the
said Act. He submitted that it is necessary in order to attract the said
offence for the Government to issue a notification in the official gazette
under section 2(b) of the said Act. In the absence of such notification,
section 7 of the said Act, the offence under which is made non-bailable,
cannot be invoked. The learned Counsel has submitted that the
applicants-accused are on interim bail and have attended the concerned
police station and their custody is not required.
4. In support of his arguments, the learned Counsel relied on the
judgment of the Bombay High Court (Nagpur Bench) in the case of Rajiv
@ Raju s/o. Ramrao Lande & anr. vs. The State of Maharashtra
through P.S.O., Buldhana (City), District Buldhana1
.
1 Criminal Application (ABA) No.21 of 2015 decided on 3.3.2015

5. Mr.Shinde, learned Public Prosecutor appearing for the State,
argued that section 7 of the said Act is attracted because it says about the
use of any other unfair means at the time of examination is an offence and
the punishment is only upto 6 months and / or fine u/s 9 of the Act is made
non-bailable. He submitted that issuance of notification in the Government
gazette is not obligatory if the examination is conducted by the authority
which is Collector. He relied on a circular of 2007 issued by the Divisional
Commissioner of Konkan Division, whereby directions are given to the
Collector to conduct the examination. He submitted that the word 'may' is
used in respect of issuance of notification by the Government. Thus, to
issue such notification or not is optional for the government. He submitted
that the examination was declared for the revenue department and,
therefore, it is to be considered that if it is conducted by the Collector, it is
covered under the authority and notification is not required.
6. In support of his submissions, he relied on the judgment in the case
of Chief Settlement commissioner (Rural) Punjab & anr. vs. Ram
Singh & Ors.2
.
7. The learned Public Prosecutor, on merit, has submitted that the
applicants-accused and the co-accused have used a very peculiar modus
operandi of commission of this offence. He submitted that in the course of
2 AIR 1987 SC 1834

investigation, the police found that separate SIM cards were provided by
the accused to the candidates, who agreed to pay money to the
applicants-accused for the copy. These accused alongwith the other coaccused
had visited different villages and promised those villagers that
they would be giving them some government services for which their PAN
card, documents for identity proof were required. The villagers, who
trusted them, handed over their identification documents and thereafter, on
the basis of those original documents of various villagers, the applicantsaccused
and the co-accused obtained SIM cards of various cellphone
service providers and then the documents were returned to the villagers.
Thereafter, the students were contacted with a promise that if they paid
Rs.2 lakhs each, they would be supplied answers of the question papers
at the time of the examination, who agreed to pay and wanted to be
beneficiaries of this copy, they were provided separate SIM cards. Thus,
nearly 45 SIM cards were collected and they were provided both the SIM
cards as well as cellphones. After having such kind of networking at the
time of examination hall, through SMS, the answers were provided to the
candidates. He further submitted that Arun Gavali, who appeared in the
examination, was caught red handed as personifying one Mr.Taral, who
was the real candidate supposed to appear for the examination, however,
that person is absconding. He submitted that till today, the police have
registered the offences against 8 accused.

8. Perused the FIR. After going through the statements of the
witnesses, it is found that the applicants/accused have approached the
villagers. The applicants have handed over the documents to get the SIM
cards. The manner in which the applicants/accused have committed the
offence, prima facie, shows that it was an intelligent plot to provide
different mechanism for copy and earn money. I am of the view that the
applicants/accused are undoubtedly involved in this case and the police
have clues against these applicants. Unless and until their custody is
obtained, the investigation cannot progress. The offence is grave as it is
an examination for the government jobs and recruitment of government
employees.
9. In the case of Chief Settlement Commissioner (supra), the
allotment of land in excess of the lawful entitlement was given and the
Court held that the Rule does not confer a right on the displaced person to
insist that excess land be sold to him. Thus, the choice was given to the
Chief Settlement Commissioner as the word used is 'may' to use various
options towards adjustment and the Supreme Court held that the
expression 'may' in the rule cannot be read as 'shall'. The rule merely
confers a discretion to the Settlement Commissioner (Rural). The Court
held “In our opinion, the interpretation canvassed by the allotees would
defeat the very purpose of Rules”.

10. In the case of Rajiv @ Raju s/o. Ramrao Lande & anr. (supra), the
learned Single Judge of this Court has taken a view that examination is
proposed to be held by the authority specified and notified in the official
gazette by the State and no material was placed on record that such
notification was issued by the State Government in the official gazette and,
therefore, how the section can be attracted is a matter of dispute.
11. Challenge is given under section 7 and it was argued vehemently
that section 7, which is non-bailable, cannot be invoked. Under section 7,
the phrase 'use of any other unfair means' takes care of all mal-practices
or the misdeeds done when the examination is conducted. Though the
punishment is upto 6 months, the offence is made non-bailable because of
the nature and gravity of the offence. At the time of conducting
examination, the degree of sanctity required is very high and, therefore, it
is made non-bailable. The word 'examination' is defined under section
2(b) of the Act. It is as under:
“2(b). “Examination” means any examination held or proposed to be
held by any University or the Board and includes such other
examination held or proposed to be held by such other authority as
may be specified in this behalf, from time to time, by the State
Government by notification in the Official Gazette.”
12. The section is clear that if at all the examination is conducted by the
University or Board, then, it is covered under the examination as defined
under the Act. Besides this, when an examination is conducted by any

other authority than the university and the Board, then, the State
Government may issue notification in the official gazette specifying the
authority and the examination. I cannot accept the submission of the
learned Public Prosecutor that the “Collector” himself is to be considered
as a authority. On plain reading of the section, the legislature did not
intend to give standing authority to the Collector in respect of conducting
examination. “The other authority as may be specified' means that the
State Government has option to issue notification in the official gazette
about the said authority and once such authority is specified in the official
gazette, then, the examination conducted by the said authority, comes
within the sweep of the word 'examination' as defined under section 2(b) of
the Act and then only section 7 of the Act can be attracted. In the absence
of such notification, if the examination is conducted by any authority, then
that examination is valid and legal, however, the said Act cannot be made
applicable to that examination. However, to bring that examination within
the ambit of section 2(b) of the Act, the State Government needs to issue
notification in the official gazette specifying the authority. In the absence
of such notification, the examination cannot be an examination under 2(b)
of the Act and, therefore, if the mal practices have taken place during such
examination, cannot be said as offence as under section 7 of the Act.
Thus, notification issued by the State Government enables to bring the
acts, misdeeds, malpractices committed within the ambit of section 7 of

the Act. I am in agreement with the learned Prosecutor that the word 'may'
is not to be read as the word 'shall'. The choice is given to the State
Government to issue notification, specifying the authority. If the State
Government does not want to specify the authority, then, if any malpractice
takes place, at the time of conducting of any examination, in the absence
of such notification, those malpractices cannot be said as offences under
section 7 of the Act. Therefore, to that extent, for the interpretation of
section 7, I am with the learned Counsel for the applicants-accused.
However, the prosecution has not restricted the charges only to section 7
of the said Act but has also charged the applicants/accused under
sections 420, 464, 468, 471 of the Indian Penal Code which are nonbailable.
The manner in which the offence is committed, the custodial
interrogation of the applicants-accused is necessary. The absconding real
candidate is also to be traced. As it is a case of cheating, fraud and
forgery, I am not inclined to grant pre-arrest bail to the applicants/accused.
13. In the circumstances of the case, therefore, both the Anticipatory
Bail Applications are rejected.
(MRIDULA BHATKAR, J.)

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