Ghansham vs State of Karnataka

K.N. Phaneendra, J.—The petitioners have sought for quashing of the FIR in Crime No. 122/2014 registered by Brahmapur police for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 (for short, ''K.P. Act'').

The factual matrix emanate from the records are that, on 01.08.2014 at about 6.00 p.m. on receiving credible information, the Police Inspector attached to Brahmapur Police Station, Gulbarga, along with his staff went to Karnataka State Government Officials Recreation Club situated in PWD Residential Quarters No. D.21 in Sarvodaya Colony, Gulbarga on the allegations that some persons are playing Andar-Bahar gambling in the said premises by using playing cards. In fact he went along with his staff and panch witnesses and found that the petitioners herein were playing cards. The police have seized some cash and also some vehicles at the instance of accused persons. Some of the accused persons (the petitioners herein) have approached this Court seeking quashing of the entire proceedings. The materials disclose that the FIR was registered on 01.08.2014 under Sections 79 and 80 of the K.P. Act.

The Learned counsel for the petitioners strenuously contends that the police have raided the Club, initiated the proceedings without following the procedures particularly under Section 155(2) of Cr.P.C. and without taking proper permission from the jurisdictional Magistrate to investigate and file charge sheet so far as non-cognizable offences are concerned. It is to be noted in this regard that, in the case of K.N. Suresh v. State of Karnataka and Others [2012(2) KLJ 581] this Court has observed that,-

''"Common gaming house'' means a building, room, tent, enclosure, vehicle, vessel or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying or keeping such building, room, tent, enclosure, vehicle, vessel or place, or of the person using such building, room, tent, enclosure, vehicle, vessel or place, whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instruments of gaming or of the building, room, tent, enclosure, vehicle, vessel or place, or otherwise howsoever or as subscription or other payment for the use of facilities along with the use of the instruments of gaming or of the building, room, tent, enclosure, vehicle, vessel or place for purposes of gaming." 4. On analyzing the above said provision of law, again the Court has rendered a decision in the case of Chikkarangappa and Others v. State of Mysore [1971(2) KLJ 187] and in another decision in the case of Eranna and Others v. State of Karnataka 1977(1) KLJ 274. The said decisions declare that playing game of ''Andar-Bahar'' by using playing cards is a game of skill and not mere a game of chance and therefore, the offences punishable under Sections 79 and 80 of the K.P. Act are not attracted. It is also to be noted that, in the ruling reported in Earanna''s case cited supra, the Court has categorically held that, game of ''Andar-Bahar'' is not a game of chance. In this context, the Court has also quoted certain facts of a particular case, which in my opinion, is relevant to be noted herein, which read thus:--

"7. In this view of the matter the essential ingredient of the offence was not proved. It could not be established that the petitioners/accused were playing a game of chance and one does not know how the game ''Andar-Bahar'' is actually played with the assistance of cards. Even if any betting was resorted to and even if any pledge of movables was made in support of that betting, that by itself did not convert a game of a skill into a game of chance. At any rate it was not categorically proved that ''Andar-Bahar'' is a game of chance and that these accused were playing that game. They were not covered under the definition of gaming in a common house. Since the institution where the accused were found playing the game of cards is a club, it is not unusual that cards are played in a club, and it may even be that some betting was also being done. These facts by themselves never proved that a game of chance was being played or that no skill was involved in that game so that it could be considered to be a mere game of chance. It is manifest that a game of skill would not be held to be gambling for the purpose of the Act". 5. In this view of the matter, no offence under Sections 79 and 80 of the K.P. Act was made-out against the petitioners. Hence, conviction and sentence was set aside. Though the above said Ruling was rendered on merits, nevertheless, the principle laid down in the said case exclusively applicable to the facts and circumstances of this case. In this case also the building, in which the petitioners are playing ''Andr-Bahar'', according to the police, is a recreation club. Therefore, in a recognized recreation club, Andar-Bahar game is played and it is not shown that the said Andar-Bahar game is exclusively a game of chance. Unless it is shown, the offence under Sections 79 and 80 cannot be said to have been attracted.

Apart from the above, the facts in this case disclose that, after the raid of the said recreation club, a case has been registered under Sections 79 and 80 of the K.P. Act. As could be seen from the provisions of Sections 79 and 80 of the K.P. Act, the said offences under the said Act are punishable with sentence of six months and not exceeding one year with fine. Therefore, it goes without saying that the said offences are non-cognizable in nature. Further, added to that, there is no special provision under the K.P. Act declaring that the offences alleged are cognizable offences in nature. Therefore, this Court has to fall back upon the II-Classification of the offences against other law in the I-schedule of Cr.P.C., which says that the offences which are punishable less than three years or with fine are declared to be non-cognizable and bailable. When once it is held that these provisions are non-cognizable in nature, the procedure contemplated under Section 155(2) has to be strictly complied with.

Section 155 of Cr.P.C. reads as under:--

"Section 155 Information as to non-cognizable cases and investigation of such cases,

1) When information is given an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate.

2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

4) Whether a case relates to two or more offences of which at least-one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."

As soon the information is received so far as it relates to non-cognizable offices that should be entered in the information book to be kept by the officer in such format as the State Government may prescribe in that behalf and refer the informant to the Magistrate that means to say the Investigating Officer shall not register the case under Section 154 of Cr.P.C. The specific contents of Section 155 further mandates that no police officer shall investigate any non-cognizable offices without the order of the Magistrate having power to try such case or commit the case for trial. Therefore, it is mandatory that as soon as the Investigating Officer, registers the case under Section 155 of Cr.P.C., he himself shall refer to the Magistrate, as he himself is the complainant. Therefore, he would have approached the Magistrate to take permission under Section 155(2) to investigate the matter and to file charge sheet. But, such things have not been done so far as this case is concerned.

Learned counsel for the petitioners has brought to my notice that the charge sheet has already been filed in C.C. No. 6363/2014 (Crime No. 122/2014) pending on the file of IV-Addl. Civil Judge (Jr.Dn.) and JMFC, Gulbarga. The learned Magistrate appears to have taken cognizance of the offences on the basis of the charge sheet filed. But the charge sheet papers also does not disclose that the police have sought for any permission to treat the charge sheet as a complaint, as provided under Section 2(d) of Cr.P.C. However, Section 2(d) of Cr.P.C. is also not applicable when the Investigating Officer, at the initial stages registers the case pertaining to non-cognizable offences and proceeds to the spot and even after the investigation, he does not find any cognizable offences being committed, he files the charge sheet pertaining to non-cognizable offences, then the police officer has no jurisdiction even to invoke Section 2(d) of Cr.P.C., because of the simple reason that Section 2(d) of Cr.P.C. specifically says that, if the police officer proceeds to the place of incident on the assumption that both cognizable and non-cognizable offices are committed, but after investigation he comes to know that only non-cognizable offences are committed, then only he can seek permission of the Magistrate to treat the said charge sheet as complaint under Section 2(d) of Cr.P.C. The said eventuality is not occurred so far as this case is concerned.

Looking from any angle, the entire proceedings is vitiated by serious incurable procedural irregularity. Therefore, the entire proceedings in Crime No. 122/2014, consequently concluded in C.C. No. 6363/2014 on the file IV-Additional Civil Judge (Jr.Dn.) and JMFC, Gulbarga, deserves to be quashed.

Accordingly, the petition is allowed. The entire further proceedings so far as it relates to the petitioners are concerned in C.C. No. 6363/2014 (Crime No. 122/2014) pending on the file IV-Additional Civil Judge and JMFC, Gulbarga, is hereby quashed, so far as it relates to the petitioners are concerned. During the course of investigation the police have also seized some cash, vehicle and other articles. Quashing of the proceedings by this Court amounts to termination of the proceedings before the Trial Court. Therefore, the applicants are at liberty to approach the Trial Court under Section 457 of Cr.P.C. for disposal of the properties and the trial Magistrate has to pass appropriate orders at the conclusion of the case pending against other accused.