JUDGMENT (P.B. Majmudar, J.)

1. Rule. Learned counsel appearing for respective respondents waive service of rule. With the consent of the learned counsel appearing for the parties, Rule made returnable forthwith.

2. “No mobile phone in the examination hall PLEASE “ should be the message which is required to be conveyed by the academic institutions to the students community at large. The point involved in this petition is in connection with the punishment awarded to the petitioner for taking mobile phone in the examination hall.

3. The petitioner had appeared for the First Year B.M.S. Examination held in March, 2008. At the time of appearing for “Introduction of Computers Paper” it was found that the petitioner entered the examination hall with the mobile phone in her possession. The case of the petitioner is that even though she was unintentionally carrying her mobile phone in her pocket, she immediately handed it over within ten minutes to the Supervisor and she had not taken advantage of the same in any manner and that, therefore, the penalty awarded to her by the Unfair Means Enquiry Committee of S.K. Somaiya College of Arts, Science and Commerce (hereafter “the Committee”) is not in accordance with law.

4. It is not in dispute that at the time of entering the examination hall, the petitioner was having the mobile phone with her, though it may be true that she might have handed over the same later on, may be within short time after the commencement of the examination. On the aforesaid act on the part of petitioner of taking mobile in the examination hall, she was subjected to proceedings which were conducted by the Committee. We have perused the proceedings of the enquiry which are annexed at Exhibit-L to the petition. The enquiry was conducted on 24th June, 2008 wherein six members were present which included the member who was also invited in the Committee proceedings. As per the notings of the said Committee, at page 75, the following question was asked by the Committee Members to her viz.

“Do you know there are some exam related instructions on the front page of the main answer sheet? Yes. I do know but I could not read them fully.” At page 79, there is a reference to the following question by the Committee.

“Do you want to say anything further?

Yes. My humble request is that please make the decision if a punishment shall be a minor one because this has happened unintentionally and not because of purpose. Please accept the fact that I am a student of 18 and don't want to lose a year of my career. Please give me a chance to improve my mistake which shall never happen again.”

5. It is not in dispute that the petitioner went to the examination hall with the mobile telephone. The Committee after considering the said aspect and considering the say of the student, passed the impugned order dated 25th June, 2008, whereby her performance at the F.Y. B.M.S. ATKT Examination held in March, 2008 has been treated as null and void in full and that she was debarred from appearing in one more additional college examination and a fine of Rs. 300/also has been imposed on her. It is the aforesaid order of punishment which is impugned in this petition at the instance of the petitioner.

6. Mr. Reis, learned counsel appearing for the petitioner, submitted that it is true that the petitioner was having mobile phone at the examination hall but on her own she handed over the same to the Supervisor and she had not taken benefit of any data available on such mobile phone. He submitted that the mobile phone was taken in the examination hall unintentionally and by way of forgetfulness on the part of the petitioner. He submitted that there are many instructions which might be appearing on the answer sheet but in a given case the students may not read the instructions completely. It is, therefore, submitted that there was no mens rea on the part of the petitioner and the mobile phone was not taken with an intention to use any material or data stored

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