JUDGMENT

C.D. Parekh, J. - This revision arises out of the order dated October 29, 1969 passed by Shri K. Singh, Magistrate 1st Class, Bulandshahr, convicting the applicant u /s. 353 IPC and sentencing him to undergo RI for six months. The applicant preferred appeal before the Session Judge, Bulandshahr. His appeal was dismissed on April 18, 1970 but the learned Sessions Judge instead of sentencing the applicant forthwith released him on probation of good conduct on furnishing a personal bond in the sum of Rs. 2,000/- and two sureties in the like amount to keep peace and be of good behaviour and appear and receive the sentence when called upon during a period of two years. He was allowed ten days' time for furnishing surety bonds to the satisfaction of the trial magistrate.

2. Briefly the facts of the case are that the applicant was appearing for B. A. Part I examination. On May 1, 1968, while the evening shift of the examinations of the applicant was going on in the hall of NREC Khurja, the invigilator Shri Allen noticed that the applicant was copying something in the answer book from the writing which was already there on his left palm. The invigilator approached the applicant and questioned him about the same. On being questioned he became arrogant and stated to the invigilator that he should not be disturbed and raised his fist towards the invigilator in anger and made threatening gestures towards him. Other invigilators present arrived there and averted the criminal assault. The one answer book which it was found that the applicant was copying from the writing on his palm taken from him and a new answer book was given to him. The invigilator made report of the incident to the Principal of the College who was the Superintendent of the examinations. This incident took place on May 1, 1968 in the evening shift of the examination which was to be held between 3 P.M. to 6 P.M. Shri Allen detected this use of unfair means and copying at about 3.50 P.M. and the report through the Principal, i.e., the Superintendent of Examinations, was handed over to the police constable on duty at the examination centre at about 6.15 P.M. at the close of the shift of the examination on that date. The applicant was also handed over to the police who took him to P. S. Khurja and a case under section 353 I.P.C. was registered against the applicant. The prosecution examined Shri Allen, the person who was the victim of the criminal assault, O.P. Gupta, G. C. Bhardwaj who had arrived at the time of the incident, P. C. Gupta is the scribe of the F.I.R. S. I. Harphool Singh who had investigaged the case.

3. The applicant pleaded not guilty to the charge and stated that he had been falsely implicated in the case as the Principal and other staff of the college were maliciously disposed against him because the applicant did not wish them. The applicant examined his father Bhagmal.

4. Learned counsel for the applicant argued before me that it was none of the duties of Shri Allen or the other invigilators to have taken the answer book from the possession of the applicant and if they had exceeded their duties as invigilators the applicant was justified in showing some temper and that would not amount to an offence for which the applicant has been found guilty, convicted and sentenced. The argument in my opinion is fallacious. When the applicant was found copying from the writing already existing on his left palm the invigilators had no other option but to take away that answer book which contained the copied out matter for departmental action and it may be that amongst the specific duties given to the invigilators the taking of the answer books may not be referred to but in the circumstances in which the answer book was taken it can certainly be said to be the duty of the invigilator which was inherent in him as such. It is not necessary that all the eventualities and the result thereof which are adopted and result from the use of the unfair means by the stude