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Judgment
Heard. ADMIT. Taken up for final disposal forthwith by consent of the learned Counsels appearing for the respective parties.
The present application has been filed by the applicant invoking the inherent powers of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”), for quashment of First Information Report (for short, “FIR”), bearing Crime No.331 of 2026, dated 03.05.2026, registered with Police Station Malegaon, Tq. Malegaon, Dist. Washim and consequential charge-sheet bearing No.229 of 2026, for the offences punishable under Sections 7 and 8 of the Maharashtra Prevention of Malpractices At University, Board and Other Specified Examinations Act, 1982 (for short, “Act of 1982”).
The brief facts of the case are as follows :
On 03.05.2026, non-applicant No.2, Taluka Invigilator and Block Education Officer, Panchayat Samiti Malegaon, lodged a complaint against the applicant alleging that in the month of February/March 2026, during the Board Examination of Maharashtra Secondary School Certificate (SSC), the applicant was working as an invigilator at an examination center i.e. Shri Moreshwar Vidyalaya, Mungala, Tq. Malegaon, Dist. Washim. On 06.03.2026, at about 01:00 p.m., the Education Officer (Primary), Jilla Parishad, Washim along with the Head of the Flying Squad, conducted a surprise visit to the said examination center. During inspection, it is alleged that two handwritten pages were found on the window near a student who was appearing for examination at the said examination center. At that time, the applicant was the invigilator at the said examination hall where the said handwritten pages were found. Therefore, offences under Sections 7 and 8 of the Act of 1982 came to be registered against the applicant.
Learned Counsel for the applicant vehemently submitted that Section 7 of the Act of 1982 is applicable to the person, who copied the answer to the question paper set at the examination from any book, notes or answer papers of other candidates. Whereas, Section 8 of the Act of 1982 provides punishment for abetment of any offence under the Act of 1982. According to him, merely because two handwritten pages were found on the window near a student without there being any specific allegation that the said student was copying the answer to the question paper set from the said handwritten pages, the offence under Section 7 of the Act of 1982 is not made out.
Learned Counsel for the applicant further submitted that, the applicant was an invigilator in the said examination hall and no student has been shown as an accused in the present offence. Therefore, according to him, without there being a principal offender, the applicant cannot be prosecuted for abetment of the said offence. Therefore, none of the ingredients of the offence under Section 8 of the Act of 1982 are made out. Therefore, he sought quashing the FIR and consequential charge-sheet.
Learned APP for the State with the assistance of the learned Counsel for non-applicant No.2 vehemently submitted that two handwritten pages were found from the examination hall where the applicant was invigilator. Therefore, he was responsible for the said handwritten pages. According to him, the matter requires evidence and therefore, sought rejection of the application.
Having heard the learned Counsel for the respective parties and having gone through the charge-sheet, it is revealed that in the month of February/March 2026, the SSC Board Examination was going on at Malegaon Taluka, Dist. Washim. On 06.03.2026, the Education Officer (Primary), Jilla Parishad, Washim along with the Head of the Flying Squad, conducted surprise visit to Shri Moreshwar Vidyalaya, Mungala, Tq. Malegaon, Dist. Washim, where the examination of Maths paper of 10th standard was being conducted. During inspection, two handwritten pages were found on one window of the said examination hall, besides a student namely A.S. Rathod.
It is also seen from the charge-sheet that the present applicant was the invigilator of the said examination hall where the surprise visit was conducted. However, nowhere in the the entire charge-sheet, it is depicted that the student, who was sitting besides the said window where two handwritten pages were found, was copying the answer to the question set from the said handwritten pages or answer paper of other candidates. Thus, having found no material in the entire charge-sheet which suggest that the student namely A.S. Rathod was copying answers to the question set from the said handwritten pages in the said examination hall, no offence whatsoever under Section 7 of the Act of 1982 can be made out by the prosecution. The entire charge-sheet is bereft of allegation of commission of offence under Section 7 of the Act of 1982, abetment of which is punishable under Section 8 of the Act of 1982. Even otherwise, the said student is not made an accused in the present crime. Rather, no FIR has been lodged by the department against the said student.
Be that as it may, the fact remains that there are no allegations against the applicant that he was copying the answer to the question set. Therefore, there is no question of attraction of offence under Section 7 of the Act of 1982 against the applicant. Section 8 of the Act of 1982, provides punishment for abetment. The prosecution has alleged the abetment at the hands of the applicant in copying the answer by the student namely A.S. Rathod.
As stated above, no ingredients of Section 7 of the Act of 1982 is made out against the applicants. Therefore, there hardly remains any question of abetment of the said offence. Once it is held that no offence under Section 7 is made out, the prosecution against the abetment of the said offence for which no ingredients are made out does not arise in question.
That apart, as stated above, even if for the sake of argument, it is presumed that the applicant abetted the offence of copying the answer to the question set from the said handwritten pages in the said examination hall, in absence of the perpetrator of the crime i.e. the student who copied the answer, the applicant cannot be continued to be prosecuted as a abettor in absence of principal perpetrator of the crime.
A reference can be made to the decision of this Court in the case of State of Maharashtra Vs. Bharatsing Ganpatsing Thakur and Others, reported in 2004 SCC Online Bom 1416, wherein in para 18 and 19, it has been held as under :
“18.Mr. Manohar, the learned counsel for respondents submitted that the prosecution against the accused is for the offences under section 7 and 8 of Maharashtra Prevention of Malpractices Act and the accused persons were charged on the allegations that they abetted and instigated students in indulging into malpractice. He submitted that this charge against the stands vitiated on the ground that the principal offenders who were the students, who had indulged into malpractices were not made accused. It is matter of record that the students who were found indulging into malpractices have not been made accused. The Collector did not prepare the list of the names of the students with whom the questionable material was found. Therefore, basically it is not proved on the evidence on record that the students, who had appeared for the examination has indulged into malpractices. If that is so, then the charge against the accused persons/respondents falls to the ground. The learned counsel has rightly placed reliance on the decision of our High Court in 1999 Cri.L.J. 196, State of Maharashtra, Petitioner Vs. Ramdas Shankar Kurlekar and another, Respondent. In that case the accused who was charged under Section 5 of the Prevention of Corruption Act was acquitted, as no prima facie case was made out against him. Therefore, the Court found that the charge against the co-accused for abatement of said offence is not maintainable
19.Mr. Manohar, placed reliance on the decision of Apex Court in AIR 1999 Supreme Court 1210 in Ex-Sepoy Haradhan Chakraborty, Petitioner Vs. Union of India and another, Respondent. In that case, person was charged with offence of abatement of conspiracy of commission of offence of theft by his officer. It was found that the substantive offence against the principal offender was not established. Therefore, the Apex Court held that when principal offender is acquitted, the abettor cannot be convicted. In the case before hand, the position is worst in the sense, the students who were principal offenders, found indulging into malpractices in examinations, were not prosecuted by the investigating agency. That apart, on the evidence on record it is not established by the prosecution that the students have indulged into malpractices and thereby they have committed offence under the Maharashtra Prevention of Malpractices Act. If that is so, then acquittal of the respondents by the trial court was justified on the ground that the principal offenders were not prosecuted and the prosecution has basically failed establish that the offence has been committed by the students….”
The Supreme Court in the case of State of Haryana and Others Vs. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, has laid down the principles governing the exercise of the extraordinary power under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure (now Section 528 of the BNSS) to quash an FIR. It has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. It has further been observed that where the allegations in the FIR, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the FIR can be quashed.
In view of the above, the continuation of prosecution against the applicant is nothing but the abuse of process of court. Therefore, this court can exercise inherent powers under Section 528 of the BNSS to quash the FIR and the consequential charge-sheet. Hence, the application deserves to be allowed. Thus, the following order is passed.
ORDER
The application is allowed.
ii) First Information Report bearing Crime No.331 of 2026, dated 03.05.2026, registered with Police Station Malegaon, Tq. Malegaon, Dist. Washim and consequential charge-sheet bearing No.229 of 2026, for the offences punishable under Sections 7 and 8 of the Maharashtra Prevention of Malpractices At University, Board and Other Specified Examinations Act, 1982, are hereby quashed and set-aside qua the present applicant.
iii) Pending applications, if any, stand disposed of.