Kittappa vs State of Karnataka

Rathnakala, J.—This revision petition is filed assailing the judgment of conviction and sentence passed in Crl. A. No. 21/2011 dated 25.11.2013 by District and Sessions Judge, Bagalkot and also in C.C. No. 845/2010 dated 10.01.2011 by the Prl. Civil Judge and J.M.F.C., Bagalkot.

Briefly stated, a case was registered against the petitioner in Crime No. 95/2010 by respondent Police for the offence punishable under Section 78(3) of the Karnataka Police Act (hereinafter referred to ''the Act''). After investigation, charge sheet was filed for the same offence. After a full-fledged trial, he was found guilty and was sentenced to undergo imprisonment for a period of three months and to pay fine of Rs. 300/-, in default to pay the fine amount to undergo simple imprisonment for 15 days. The appeal filed by him before the District and Sessions Judge went in vain.

Learned counsel for the petitioner submits that the very filing of the charge sheet against the petitioner was vitiated for procedural irregularity. The offence under Section 78(3) of the Act, being non-cognizable in nature, without prior permission of the jurisdictional Magistrate, the Investigating Officer could not have proceeded with investigation. In that view of the matter, charge sheet filed against him is liable to be quashed. That part, both panch witnesses turned hostile to the prosecution case thereby the seizure of Rs. 885/- was not proved. The appreciation of evidence by the trial Court was arbitrary and erroneous. None of the witnesses from the locality were examined though it was alleged that the offence had taken place in a commercial area. The material on record was insufficient to convict the accused.

The learned High Court Government Pleader submits that the petitioner participated in the trial without raising any objections about the legality of the proceedings. Even before the Appellate Court also illegality of the investigation was not questioned. For the first time, before this Court he has raised a new ground, which cannot be entertained. It is well known that independent witnesses do not come forward offering as witnesses to co-operate with the police officers. The panch witness turning hostile has become the menace in the criminal proceedings. It is the established practice and procedure that when the evidence of the official witnesses is trustworthy there is no hurdle to convict the petitioner. The Investigating Officer though has investigated the matter without prior approval/permission, same is protected by Section 460(b) of Cr.P.C. which reads as under:-

"460. Irregularities which do not vitiate proceedings:-(b) to order, under section 155, the police to investigate an offence."

Extending the benefit of this Section little further to the case, where an investigation is carried out without the authorisation of the jurisdictional Magistrate, such investigation also is deemed to be protected. It is a mere irregularity not vitiating the entire proceedings. The judgments of the trial Court, so also the District Court are well reasoned and based on sound reasoning. Hence, the petition is liable to be rejected.

In the light of rival submissions, I have gone through the case records. Before the trial Court, both panch witnesses/P.Ws. 1 and 2 turned hostile, however, they admitted their respective signature on Mahazar-Ex. P1. The constable who assisted the Investigating Officer for raid is examined as PW-3. P.W. 4 is the P.S.I., who conducted the raid seized the incriminating material under mahazar from the possession of the accused i.e., one chit, one ball pen and cash of Rs. 885/-. Thereafter he arrested the accused, registered the case and dispatched the F.I.R. is examined as P.W. 4. The Investigating Officer who conducted the further investigation and submitted charge sheet is examined as PW-5. The evidence of the official witnesses i.e., P.Ws. 3 and 4 was to the effect that the petitioner was offering to pay Rs. 800/- in return for one rupee in the public place: he was caught and the public who were surrounding him fled away: he had one Chit in his hand in which numbers were recorded. On his body search, Rs. 885/- cash amount and one ball pen were seized.

The learned District Judge in the body of his judgment went on reiterating the evidence adduced by the witnesses and accepted the entire evidence of the official witnesses by marginalising the evidence of the hostile witnesses. Without taking pain to discuss any further as to under which provisions of law the alleged acts fall, he has recorded conviction under Section 78(111) of the Act. In fact, the memo of accusation that was read over to the accused for which he pleaded not guilty was framed in respect of the offence punishable under Section 78(3) of Police Act, but the conviction is recorded for Section 78(III) of the Act. If there was some discussion in the body of his judgment as to which penal provision is attracted in the facts and circumstance of the case, then the penal provisions quoted in the operative portion of the judgment as ''Section 78(iii)'' could have been understood as mere typographical mistake. The omission in not linking the facts, which are established in his opinion viz-a-viz the offence under which he is convicting the accused, renders the judgment erroneous and illegal.

As such, there is no independent provision like Section 78(iii) in the Police Act. Sub-section (iii) of Section 78 is not an independent Section but it is sub-clause of (a) of Sub-section (1), and this Sub-section (1)(a)(iii) of Section 78 reads as under:

"78. Opening, etc., of certain forms of gaming -- (1) Whoever--

(a) being the owner or occupier or having the use of any building tent room enclosure, vehicle, vessel or place, opens, keeps or uses the same for the purpose of gaming-

(i) ................................................

(ii) ................................................

(iii) on the amount or variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation;"

It is evident from reading of the above provision that the offence must have taken place in a building, tent room enclosure, vehicle, vessel or place and the culprit must be the owner of the said premises and the game should be about an amount or variation in the market of such commodity or on the digits of the numbers used in stating the amount of such variation. That is not at all the case of the prosecution here.

Section 78(3) of the Police Act, under which he was charged, reads thus:

"Section 78(3): ''Whosoever is found gaming on any of the objects specified in sub-section (1) in any public street or thoroughfare or in any place to which the public have or are permitted to have access shall, on conviction be punished with imprisonment which may extend to three months or with fine which may extend to three hundred rupees, or with both."

"Any of the objects specified in sub-section (1)" are narrated in sub-clause (i) to (v) of clause (a), sub-section (1) of Section 78. Section 78(1)(a)(vi) of K.P. Act appears to be more plausible object in the light of present facts and circumstances, which read as under:

(vi) on any transaction or scheme of wagering or betting in which the receipt or distribution of winnings or prices in money or otherwise is made to depend on chance; or

The term Wagering or Betting'' and ''Game of Chance is enumerated in explanation (u) of Sub-Clause 7 of Section 2, which reads as under:

"Explanation (i) "Wagering or Betting", includes the collection or soliciting of bets, the receipt or distribution of winnings or prices, in money or otherwise, in respect of any act which is intended to aid or facilitate wagering or such collection, soliciting receipt or distribution;

The question now is whether the acts alleged and accepted by the Court below as proved falls within the definition of ''Gaming''? The evidence of the PSI is to the effect that the accused was announcing that he will pay Rs. 800/- in return for one rupee in the public place. While his staff P.W. 3 states that he was writing the chits for the public on getting money. Though it appears to be a minor contradiction between the evidence of two witnesses this minor contradiction cannot be ignored when the Court is entirely acting without the supporting evidence of independent witnesses. During the body search of the accused only three articles are seized i.e., M.O. No. 1 -- O.C. chit, M.O. No. 2 - ball pen and M.O. No. 3 - cash of Rs. 885/-. If a person is found in possession of a ball pen and some cash, it cannot by itself inferred as an incriminating material. The O.C. chit/M.O. No. 3 is not in the case record. It has not been discussed in the judgment about its contents and the possibility of this document being used as an instrument of game. Not only the evidence brought on record was insufficient but it suffered with inbuilt material contradiction. In that view of the matter, it cannot be held that the prosecution has established its case beyond reasonable doubt in respect of the offence under Section 78(3) of the Act.

The trial Court without application of mind and on erroneous appreciation of evidence has drawn the judgment of conviction and the learned District Judge has mechanically confirmed the finding of the trial Court resulting in miscarriage of justice and both judgments deserve to be set aside under the revisional jurisdiction of this Court.

Accordingly, the petition is allowed. The judgment of conviction and sentence recorded by the learned J.M.F.C., Bagalkot, in C.C. No. 845/2010 so also the judgment passed by the District and Sessions Judge, Bagalkot, in Crl. A. No. 21/2011 are set aside. The petitioner is acquitted of the charges under Section 78(3) of K.P. Act. His bail bond stands cancelled.