IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 13 TH DAY OF JUNE, 2014 BEFORE THE HONOURABLE MR. JUSTICE K.N.
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1 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 13 TH DAY OF JUNE, 2014 BEFORE THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA BETWEEN CRIMINAL PETITION No / RAMAKRISHNA S/O RAMAIAH AGED ABOUT: 42 YRS, MEMBER OF SREE BASAVESHWARA SPORTS & RECREATION ASSOCIATION-SL.NO:74 R/O.RAGHAVENDRA COLONY, KUDITHINI VILLAGE, 2. K.HONNURA S/O K.ESWARAPPA AGED ABOUT: 32 YRS, EMPLOYEE IN SREE BASAVESHWARA SPORTS & RECREATION ASSOCIATION, R/O. 4 TH WARD, NEAR POST OFFICE, KUDITHINI, 3. NAGESHWARA RAO S/O SESHAIAH AGED ABOUT: 60 YRS, RECREATION ASSOCIATION-SL.NO:33, R/AT NEAR BASAVANNA DOCTOR, POULTRY FARM, KUDITHINI,
2 2 4. THIMMANAGOUDA S/O BASAVARAJ AGED ABOUT: 40 YRS, RECREATION ASSOCIATION-SL.NO:47, R/AT NEAR SUNKLAMMA TEMPLE, JANEKUNTE VILLAGE, 5. U.MANJU S/O SHANKARAPPA AGED ABOUT: 31 YRS, VEGETABLE MERCHANT, RECREATION ASSOCIATION-SL.NO:50, R/AT NEAR HAALUBHAVI, KUDITHINI, 6. GAVISIDDAPPA S/O HANUMANTHAPPA AGED ABOUT: 35 YRS, RECREATION ASSOCIATION-SL.NO:88, R/O. KODALU VILLAGE, SANDUR TQ, BELLARY DIST. 7. KUMARAPPA S/O HONNURAPPA AGED ABOUT: 35 YRS, RECREATION ASSOCIATION-SL.NO:114, R/O. KODALU VILLAGE, SANDUR TQ, BELLARY DIST. 8. KABBERA PARASAPPA S/O ERANNA AGED ABOUT: 45 YRS, EMPLOYEE IN SREE BASAVESHWARA SPORTS & RECREATION ASSOCIATION, R/O. KUDITHINI,
3 3 9. PRAKASH S/O HANUMANTHAPPA AGED ABOUT: 40 YRS, RECREATION ASSOCIATION-SL.NO:44, R/O. KUDITHINI,. 10. SHANTHAIAH S/O BALAKONDAIAH AGED ABOUT: 33 YRS, RECREATION ASSOCIATION-SL.NO:118, R/O. BHOOLAXMI CAMP,. 11. JAGADISH S/O ESHWARAPPA AGED ABOUT: 38 YRS, RECREATION ASSOCIATION-SL.NO:105, R/O. KUDUTHINI, 12. N.RAMESH S/O MALLESHAPPA AGED ABOUT: 28 YRS, RECREATION ASSOCIATION-SL.NO:110, R/O. HARAGINADONI VILLAGE,. 13. H. RAMA S/O HANUMANTHAPPA AGED ABOUT: 31 YRS, EMPLYEE IN SRI.BASWEESHWARA SPORTS & RECREATION ASSOCIATION, R/O. CHIKKAANTHAPURA, SANDUR TQ, BELLARY DIST
4 4 14. MUDUKAPPA S/O PAKKIRAPPA AGED ABOUT: 48 YRS, MEMBER OF SREE BASWEESHWARA SPORTS & RECREATION ASSOCIATION-SL.NO:91, R/O. THIMMALAPURA VILLAGE, 15. KIRANKUMAR S/O SEENAPPA AGED ABOUT: 40 YRS, RECREATION ASSOCIATION-SL.NO:56, R/O.RAGHAVENDRA COLONY, KUDITHINI VILLAGE, 16. PARASAPPA S/O HULUGAPPA AGED ABOUT: 43 YRS, RECREATION ASSOCIATION-SL.NO:5, GRAMA PANCHAYATH MEMBER R/O. KUDITHINI VILLAGE, 17. K.SENTHIL KUMAR S/O KANNIAPPAN AGED ABOUT: 39 YRS, OCC: BUSINESS, RECREATION ASSOCIATION-SL.NO:20, R/O. BELAGAL CROSS, 18. PRABHU S/O ADIBASAPPA AGED ABOUT: 42 YRS, EXECUTIVE MEMBER OF SREE BASAVESHWARA SPORTS & RECREATION ASSOCIATION, R/O. KUDITHINI VILLAGE,
5 5 19. ANANTHA RAMA ANANTHU S/O NARAYANA RAO AGED ABOUT: 42 YRS, RECREATION ASSOCIATION-SL.NO:13, R/O. BELLARY, BELLARY DIST... PETITIONERS (BY SRI. B CHIDANANDA, ADV.) AND: 1. THE STATE OF KARNATAKA BY P.S.I, KUDITHINKI POLICE STATION BELLARY TQ. & DIST. REP. BY S.P.P. HIGH COURT OF KARNATAKA DHARWAD BENCH, DHARWAD. 2. G. LAKSHMIKANTHAIAH C.P.I. KURUGODU CIRCLE KURUGODU, BELLARY TQ. & DIST.... RESPONDENTS (BY SRI. VIJAYAKUMAR MAJAGE, HCGP FOR R1) --- THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE FIR, COMPLAINT/SPECIAL REPORT DATED AND ALL PROCEEDINGS IN CRIME NO.53/2014, REGISTERED BY PSI, KUDITHINI,, FOR THE OFFENCE PUNISHABLE UNDER SECTION 80 OF KARNATAKA POLICE ACT, 1963, PENDING ON THE FILE OF 3RD ADDL.CIVIL JUDGE (JR.DN.) & JMFC COURT, BELLARY, AND FURTHER TO DIRECT THE POLICE TO RETURN THE AMOUNT/CASH SEIZED FROM RESPECTIVE PERSONS/PETITIONERS.
6 6 THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Heard the learned Counsel for the petitioners and the learned High Court Government Pleader. Perused the records. 2. The petitioners sought for quashing of the FIR and Special Report dated and all further proceedings in Crime No.53/2014 registered by Kudithini Police, Bellary for the offence punishable under Section 80 of the Karnataka Police Act, 1963 (hereinafter referred to as the Act, for short), which is pending on the file of the III Addl. Civil Judge (Jr.Dn.) & JMFC Court, Bellary. 3. The factual matrix discloses that; On , on receiving a credible information that some persons are playing cards game by name Andar Bahar in Sri. Basaveshwar Sports and Recreation Club at Kudathini village, the Circle Inspector of Police along with his staff went to that particular place and found as many as 19 persons
7 7 sitting around the table and playing a game by name Andar Bahar (cards game) by betting with each other. The police raided the place and seized a sum of Rs.53,950/- in total and also some other articles like cards etc., and submitted a Special Report registering a case in Crime No.53/2014 for the offence punishable under Section 80 of the Act. 4. The above said factual aspects disclose that, the police have raided the said club, initiated the proceedings and registered the case. In a case involving similar facts, this Court had an opportunity to deal with the same set of facts and decide the matter. In a case reported in 2012 (2) K.L.J. page 581 in the case of K. N. Suresh Vs. State of Karnataka & Ors., this Court has observed; 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,
8 8 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. 5. On analysing the above said provision of law, this Court has rendered a decision reported in 1971(2) Mys. L.J. 187 in the case of Chickarangappa & Others Vs. State of Mysore and another decision reported in 1977 (1) K.L.J. 274 in the case of Eranna Vs. State of Karnataka, which decisions declare that, playing Andar Bahar is a game of skill and not mere a game of chance and therefore, the offence punishable under Section 79 and 80 of the Act are not attracted.
9 9 6. In the ruling reported in 1977 (1) K.L.J. 274 (supra), this Court has categorically held that, game of Andar Bahar is not a game of chance. The facts are also little bit relevant as quoted in the said case. At paragraph 7 of the said judgment, it is stated that; In this view of the matter, the essential ingredient of the offence was not proved. It could not be established that the petitioner 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 moveables 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
10 10 where the accused were found playing the game with 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. In this view of the matter, no offence under Sections 79 and 80 of the Karnataka Police Act, 1963 was made out against the petitioners. Hence the conviction of sentence was set aside. 7. In view of the above said rulings, the facts in this case are also similar. In this case also, nowhere it is explained as to how this Andar Bahar game is considered to be a game of chance and not a game of skill. Under these circumstances, in my opinion, the registration of the case
11 11 and continuation of proceedings would amounts to abuse of process of law. Moreover, the record also does not disclose that the police have taken any permission from the Magistrate to investigate into the matter. Admittedly, Section 80 of the Act is an offence, which is punishable with imprisonment, which may extent to one year and with fine. Section 155 (2) of Cr.P.C read with II Schedule appended to Cr.P.C., it discloses that any offence under any other law for the time being in force, which is punishable with less than three years or with fine only then those offences are to be categorized as non-cognizable offence, and if non-cognizable offence is committed, then the police have to take permission of the Magistrate to investigate the matter. 8. In the present case, there is no material to show that the police have proceeded to the place or even after registration of the case, they have taken any permission to investigate into the matter. Looking to the above said circumstances, I am of the opinion, the continuation of the
12 12 proceedings amounts to abuse of process of law and the same is liable to be quashed. Accordingly, the petition is allowed. Proceedings in Crime No.53/2014 on the file of the Kudithini police and consequently, the case registered before the Addl. Civil Judge (Jr.Dn.) and JMFC, Bellary are hereby quashed. gab/- Sd/- JUDGE
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