Anurudh Mishra vs State of M.P.

R.C. Mishra, J.

With consent, the matter is heard finally.

This is a petition, u/s 482 of the Code of Criminal Procedure (for short the ''Code''). The petitioner is aggrieved by the order dated 18/1/2012 passed by First ASJ, Chhatarpur in Cri. Revision No. 193/2011, affirming the order passed on 25/7/11 by CJM, Chhatarpur in Cri. Case No. 1758/11, whereby particulars of the offence, punishable u/s 4 of the Public Gambling Act, 1867 (hereinafter referred to as the ''Act''), were read over and explained to him and the co-accused for the purpose of recording their plea. Prosecution case, in short, may be stated as under:

On 18/11/2011, at about 1.10 p.m., Shiv Mohan, posted as ASI at Kotwali Chhatarpur, received a credible information to the effect that gambling was going on in a shop, named as Recondo Photocopy and situated in front of B. Ed College. After apprising the C.S.P. of the information, Shiv Mohan along with other members of the police force and Special Armed Force and two panch witnesses namely Chunuwad alias Raju and Nasim Khan reached the spot and conducted a raid in the shop wherein petitioner and three others namely Nand Kishore, Sanjay Agrawal and Preetam Singh were found gaming with cards and money, particulars of which may be tabulated thus -

Learned Senior Counsel has strenuously contended that the offence, u/s 4 of the Act, was not made out as there was not even an iota of evidence to show that the shop was being used as a Common Gaming House. According to him, the entire proceedings of search and seizure stood vitiated due to non-compliance with the mandatory provisions of Section 5 of the Act.

In response, learned Government Advocate has submitted that under the garb of the petition u/s 482 of the Code, provisions of Section 397(3) thereof, that bars a second revision, cannot be circumvented. However, as explained by the Apex Court in Krishnan and another Vs. Krishnaveni and another, , when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Court or the required statutory procedure has not been complied with or there is failure of justice, it is the duty of the High Court to have the mistake committed by the revisional Court corrected at the inception lest grave miscarriage of justice should ensue. The question, therefore, is as to whether such a case is made out ?

u/s 4 of the Act, what is made offence is gambling in a Common Gaming House. It is evident from the definition of ''Common Gaming House'' given in Section 1 that thing necessary to be proved is that owner or occupier or user or keeper of the house was, in some way or the other, deriving profit from the use of instruments of gaming kept in the house. Obviously, profit is the essence of the offence, u/s 4 of the Act. In the words of Batty, J. -

the mischief aimed at is the practice of individuals making a profit by providing a spot of their own selection known as place where gambling is to be carried on and making a livelihood by attracting to a place which they would not otherwise frequent"

(Emperor v. Jusub Ally ILR 39 Bom 386 relied on)

However, the presumption mentioned in the later part of the Section would not depend upon the presence of instruments of gaming or on the fact that the accused were found gaming or present for the purpose of gaming. If there is no evidence to show that the premises were a Common Gaming House, the accused cannot be convicted u/s 4 of the Act.

There is yet another aspect of the matter. By virtue of Section 5 of the Code, nothing contained therein shall, in the absence of specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

(Emphasis supplied)

u/s 5 of the Act (as applicable to the State of M.P.), Officers authorized to issue search warrant are District Magistrate or any other officer invested with the full powers of a Magistrate or District Superintendent of Police or Deputy or Assistant Superintendent of Police. Since the shop was not entered into or searched under such a warrant, no presumption, u/s 6, could be drawn.

The Act makes punishable gaming - (a) in a Common Gaming House u/s 4 and (b) in a Public Street or thoroughfare u/s 13. Thus, gaming in any other place including a private place will not be an offence under the Act ( Arambam Manikchand Singh and Others Vs. The Manipur Administration,

Apparently, learned ASJ has overlooked the relevant provisions of the Act and erroneously dismissed the revision petition. The question posed above is, therefore, answered in the affirmative.

To sum up, even if the allegations made against the petitioner in the charge sheet are taken at their face value and accepted in their entirety, no offence under the Act would be made out. As such, the case against the petitioner falls under category (1) of the cases, as enumerated in State of Haryana and others Vs. Ch. Bhajan Lal and others, , attracting interference under the inherent powers.

In the result, the petition stands allowed and not only the order-dated 18/1/12 (supra) but also the proceedings in Cri. Case No. 1758/11 (above) are hereby quashed. Respective monies seized from petitioner and co-accused be returned. A copy of this order be forwarded to the Sessions Judge, Chhatarpur for information and necessary action.

C.C. as per rules.