Madhya Pradesh High Court
Mukesh Kumar Rajak vs The State Of Madhya Pradesh on 7 March, 2019
-1- MCRC-15741-2018
HIGH COURT OF MADHYA PRADESH; JABALPUR
SINGLE BENCH: JUSTICE VISHNU PRATAP SINGH CHAUHAN
MCRC-15741-2018
Mukesh Kumar Rajak & Ors.
Vs.
State of M.P. & Anr.
Shri C. V. Rao, learned Counsel for the petitioner.
Shri C. K. Mishra, learned Panel Lawyer for respondent/State.
Shri Vinod Napit, learned Counsel for the respondent No.2.
ORDER
(07/03/2019) The petitioner filed this petition under Section 482 of the Cr.P.C., for quashing charge-sheet and charge framed against the applicants.
2. The facts giving rise to this petition, in short, are that a Crime No.52/2012 at Police Station, Katangi, Jabalpur was registered against applicants for the offence punishable under Section 4 read with Section 3-D(2)/4 of the M.P. Recognized Examination Act, 1937 and Section 119 read with section 120-B of the Indian Penal Code.
3. After investigation, charge-sheet has been filed in the Court of JMFC, Patan, where a Criminal Case bearing No.703/2012 registered against the applicants and charges were framed vide order dated 22.07.2014 for the offence punishable under Section 4 read with Section 3-D(2)/4 of M.P. Recognized Examination Act, 1937 and
-2- MCRC-15741-2018 Section 3-D(2)/4 of M.P. Recognized Examination Act, 1937 and Section 119 of the Indian Penal Code and in alternate Section 119 read with Section 120/B of the Indian Penal Code by the lower Court.
4. Being aggrieved by that, criminal proceeding and charges were framed against the applicants. The applicants have filed this petition under Section 482 of the Cr.P.C. for quashing of the charge-sheet on the ground that ingredients of mass-copying are lacking in the present case. There is no evidence of mass-copying. The applicants are Government Servants and sanction for prosecution had not obtained from the Competent Authority under Section 197 of the Cr.P.C. and without sanction, the criminal case cannot proceed against the applicants and cognizance cannot be taken against them. The applicants have submitted a copy of the order dated 23.02.2018 passed in M.Cr.C. No.26358/2017 of the High Court and stated that the case of the applicants are squarely covered with the facts of the M.Cr.C. No.26358/2017. Without taking sanction under Section 197 of the Cr.P.C., further, criminal proceeding initiated against the applicants would be abuse of the process of law. Therefore, learned counsel for the applicants prayed for quashment of FIR as well as criminal proceedings of the RCT/Criminal Case No.703/2012.
5. Learned counsel for the respondent No.2, who lodged FIR against the applicants, which was registered as Crime No.52/2012 has submitted that applicants have indulged in the act of mass-
-3- MCRC-15741-2018 copying at the time of examination. FIR has been lodged at the instance of the Secretary, Board of Secondary Education, Bhopal, who was instructed to lodge the FIR against the applicants.
6. Learned Government Advocate has submitted that there is no need of sanction under Section 197 of the Cr.P.C. because the FIR has been lodged on the intimation of the Head of the Department of the applicants. Applicants were themselves involved in mass-copying. All applicants were supporting their students for copying the answers by illegal means. Act of the applicants is not covered under the official duty. There is prima facie evidence of the offence. Court has not erred in framing the charge against the applicants. Therefore, he prays for dismissing of the petition.
7. After hearing both the parties, perused the case diary and documents filed along with petition, it emerged out that at the time of examination, Government Higher Secondary School, Katangi was choosen for the examination center as Center No.711027, where examination was being conducted. 352 students of the High School Examination and 159 students of the Higher Secondary School Examination were appearing and sitting in 14 rooms. Each applicant was on duty as an Invigilator, a Flying Squad constituted for conducting inspection at Examination Centers made a surprise inspection at above mentioned Examination Center, where they found that several students indulging found indulged in copying
-4- MCRC-15741-2018 answers through unfair means. Applicants being Invigilators of that room helped them to copy the answer by unfair means. Applicants were helping the students for getting mass-copying done and thereby extended undue favour to the students. The Inspection Team immediately informed this fact to the Secretary, M.P. Board of Secondary Education and send list of Invigilators deputed on duty at the said centers. In turn, Secretary instructed respondent No.2 to file FIR to that effect. Respondent No.2 had filed the FIR, which was registered as Crime No.52/2012.
8. Learned counsel for the applicants submitted that it is prima facie established that invigilators were on duty. They were performing their duties. Hence, before taking cognizance, prosecution must obtain previous sanction under Section 197 of the Cr.P.C. Learned counsel placed reliance on the order dated 23.02.2018 passed in M.Cr.C.No.26358/2017 (Smt. Shakuntala Verma vs State of M.P.) by the Coordinate Bench of this Court. The order is perused. In this this case, a lady petitioner was posted as In-charge of Examination Center, Government Boys Higher Secondary School, Katangi, but not posted as an invigilator. Her official duty was to supervise the examination and on that basis, this Court found that she was performing official duty. But in this present case, the Coordinate Bench extended the protection as contemplated by Section 197 of the Cr.P.C. and held that no cognizance can be taken
-5- MCRC-15741-2018 without prior sanction from the concerned authority against invigilator on duty at the examination room was engaged in in helping the student in mass copying and permitting the students to answer the question by illegal means.
9. In the present case, applicants who were invigilator were engaged to invigilate the examination and their official duties was to prevent the students, who were appearing in the examination, to use any unfair means in the examination. Applicants were performing the official duty at that relevant time to prevent students from copying the answer by illegal means, but as per report of Flying Squad, the invigilator-applicant herein, of the examination room was found himself or herself involved in helping the students in copying the answer from illegal means and thereby extended help to the students in mass copying. On the basis of the facts and materials available in the case diary, this Court is of the firm view that the applicants, who were engaged to prevent mass copying, were found indulged in helping students for copying the answer from illegal means. If invigilator was found to helping in mass copying, this act is not covered under the official duty of the invigilator nor it is extension of the official duty.
10. Hon'ble the Apex Court in the case of Choudhury Praveen Sultana vs. State of West Bengal, (2009) 3 SCC 398 in para 12 has held as under:-
-6- MCRC-15741-2018 "12. It was also observed in Bhagwan Prasad Srivastava (supra) that Section 197 has been designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution was a condition precedent to the taking of cognizance of the cases against them by the courts. It was finally observed that the question whether a particular act is done by a public servant in the discharge of his official duties is substantially one of the facts to be determined in the circumstances of each case."
11. Hon'ble the Apex Court in the case of Punjab State Warehousing Corporation vs. Bhushan Chander and another, (2016) 13 SCC 44, while placing reliance upon previous judgment delivered in the case of Choudhury Praveen Sultana (supra) has reiterated similar principal. Relative part of para 20 reads as under:-
"20. survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise..........................."
12. On the basis of forgoing discussion, this Court is of the view that the act of invigilator of helping mass copying, was not the official act, for which they were posted. The provision of Section 197 of the Cr.P.C. is not applicable in such type of cases. Apart from this, F.I.R.
-7- MCRC-15741-2018 was instituted at the instance of Secretary, Board of Secondary Education, who is the head of the institution of the invigilator.
13. Considering all the facts on merit, this petition is devoid of substance, hence the same is hereby dismissed.
(Vishu Pratap Singh Chauhan) Judge vinay Digitally signed by VINAY KUMAR BURMAN Date: 2019.03.07 17:39:15 +05'30'