IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA BEFORE THE HON BLE MR.JUSTICE HULUVADI G.RAMESH CRIMINAL PETITION NO.

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1 1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED: THIS THE 4 TH DAY OF APRIL, 2013 BEFORE THE HON BLE MR.JUSTICE HULUVADI G.RAMESH BETWEEN CRIMINAL PETITION NO OF RAMESH S/O GURUBASAPPA MATAPATHI AGED ABOUT 30 YEARS, OCC: AGRICULTURE, R/O ALAND, DIST. 2. SHIVARAJ S/O SHARANAPPA BARGALI AGED ABOUT 36 YEARS, OCC: LABOUR, R/O RAJVEEV GANDHI NAGAR, 3. KIRAN S/O BABURAO PATIL AGED ABOUT 28 YEARS, OCC: EMPLOYED IN PRIVATE FIRM R/O SHIVAJI NAGAR, 4. KHALEEL S/O USMAN SAB JUMBAGA, AGE: 48 YEARS, OCC: AGRICULTURE, R/O JUMBAGA NOW AT IQBAL COLONY, MSK MILL 5. SURESH S/O AMRUTHAPPA PUJARI AGE: 30 YEARS, OCC: EMPLOYED IN PRIVATE FIRMS R/O RAMANAGAR,

2 2 6. SHIVAKUMAR S/O BABURAO PATIL AGE: 30 YEARS, OCC: BUSINESS R/O FILTER BED, 7. MAHANTESH S/O BHIMRAO NIMBARGI AGE: 30 YEARS, OCC: BUSINESS, R/O SAI MANDIR, 8. SRIKANTHRADDY S/O SHARANARADDY AGE: 29 YEARS, OCC: BUSINESS, R/O FILTERBED, 9. KIRAN S/O RAMESH SURYAVANSHI AGE: 33 YEARS, OCC: LABOUR, R/O KAVERI NAGAR, 10. SANDEEP S/O SUBHASH PIMPALE AGE: 30 YEARS, OCC: MECHANIC R/O NEAR LAL HANUMAN TEMPLE, 11. MOHAN S/O NARASINGH THAKUR AGE: 30 YEARS, OCC: ELECTRICIAN, R/O SHAHABAZAR, 12. ASHOK S/O CHANNABASAPPA KARANJI AGE: 29 YEARS, OCC: BUSINESS, R/O SHAHABAZAR, 13. DHARMANNA S/O REVAPPA AGE: 42 YEARS, OCC: BUSINESS, R/O JAGATH, 14. SHARNU S/O SHANKAR PATIL AGE: 30 YEARS, OCC: FARMER R/O MAHADEV NAGAR, 15. MANIK S/O SIDRAMAPPA AGE: 32 YEARS, OCC: EMPLOYED

3 3 IN PRIVATE FIRM, R/O GAZIPURA, 16. SANTOSH S/O SHAMRAO YELMUDI AGE: 32 YEARS, OCC: BUSINESS, R/O SHAHABAZAR, 17. SHAMBULING S/O SHIVASHARNAPPA POLICE PATIL AGE: 45 YEARS, OCC: AGRICULTURE, R/O BHUSANAGI, TQ. & DIST. 18. NAGENDRAPPA S/O ANANDRAO BEEDANOOR AGE: 35 YEARS, OCC: HOTEL EMPLOYEE R/O KERIBHOSGA, TQ. & DIST. 19. SRISHAIL S/O SHANAPPA PUJARI AGE: 38 YEARS, OCC: AGRICULTURE, R/O BABAAD, TQ. ALAND, DIST. 20. KHAJA PASHA S/O MAHIBOOB ALI AGE: 60 YEARS, OCC: AGRICULTURE R/O MOMINPURA, 21. SUBHASH S/O BASAWARAJ PATIL AGE: 30 YEARS, OCC: EMPLOYED IN PRIVATE FIRM, R/O SHAHABAZAR, 22. REVANSIDDAPPA S/O SHANKARRAO PATIL AGE: 34 YEARS, OCC: LABOUR, R/O OM NAGAR, 23. BASAWARAJ S/O HANAMANTHAPPA HOLAKUNDI AGE: 40 YEARS, OCC: AGRICULTURE, R/O GUNJ COLONY,

4 4 24. VEERESH S/O RAJASHEKAR BIRADAR AGE: 29 YEARS, OCC: EMPLOYED IN PRIVATE FIRM, R/O NEAR LAL HANUMAN TEMPLE, SHAHABAZAR, 25. SUBHASH S/O BABURAO JAMADAR AGE: 28 YEARS, OCC: LABOURER R/O RAJEEV GANDHI NAGAR, 26. SHARNAGOUDA S/O LINGARADDY PATIL AGE: 32 YEARS, OCC: AGRICULTURE, R/O CHINTHKUTA NOW AT GANDHI NAGAR, 27. GUNDAPPA S/O GURAPPA HEROOR AGE: 40 YEARS, OCC: BUSINESS, R/O SHAHABAZAR, PETITIONERS (BY SRI B.C.JAKA, ADVOCATE) AND THE STATE OF KARNATAKA BY CHOWK POLICE STATION, RESPONDENT (BY SRI S.S.ASPALLI, GOVT. PLEADER) THIS CRL.P FILED U/S.482 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON BLE COURT MAY BE PLEASED TO QUASH THE FIR AND COMPLAINT IN CRIME NO.29/2012 ON THE FILE OF THE RESPONDENT CHOWK POLICE STATION GULBARGA WHEREIN CHARGE SHEET HAS BEEN FILED REGISTERED

5 5 AS C.C.NO: 2294/2012 ON THE FILE OF THE III ADDL. CIVIL JUDGE AND JMFC, GULBARGA, FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 79 AND 80 OF K.P. ACT TO SECURE THE ENDS OF JUSTICE AND TO PREVENT ABUSE OF PROCESS OF COURT AND PASS SUCH OTHER ORDER OR ORDERS WHICH THIS HON BLE COURT MAY BE PLEASED TO PASS, IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE. THIS CRIMINAL PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioners have sought to quash the FIR in Cr. No.29/2012 of the Chowk Police Station, Gulbarga and the charge sheet, which is registered as CC No.2294/2012 pending before the III Addl. Civil Judge & JMFC, Gulbarga for the offences punishable under Sections 79 and 80 of the Karnataka Police Act. 2. On , the police have registered a case in Crime No.29/2011 against the accused who were in all, 27 in number for the offences punishable

6 6 under Sections 79 and 80 of the Karnataka Police Act alleging that they were playing/gambling in the City Club i.e., playing Andar-Bahar. It is also stated that Dy. S.P., Gulbarga had received information and instructed the Police Inspector and Police Sub-Inspector of Chowk Police Station about playing of Andar-Bahar in the City Club. In this regard, the police went to City Club, and having noticed that they were playing cards called as Andar-Bahar, have recovered the amount from the petitioners as mentioned in the petition to the tune of Rs.3,23,385/- and also the police have seized the cards. The police filed a final report i.e., No.34/2012 which is registered in CC No.2294/2012 before the III Addl. Civil Judge & JMFC, Gulbarga. Now the petitioners are seeking for quashing of the same on the ground that Andar-Bahar is not a game of chance and it is a game of skill. As such, the provisions of Sections 79 and 80 of Karnataka Police Act are not attracted and also contending further that there is no complaint filed

7 7 against the petitioners in the action taken by the police, and the police suo moto registered the case which is mere abuse of process of law, sought for quashing the FIR and the charge sheet filed against the petitioners. 3. Heard the counsel for the petitioners and the learned Addl. Govt. Pleader. 4. Police are shown to have seized amount to the tune of Rs.3,23,385/- from the petitioners. What is contemplated under Section 81 of the Karnataka Police Act is, search of the premises in a gaming house not below the rank of Sub-Inspector of Police has to be authorised by Superintendent of Police or District Magistrate or by an Asst. Superintendent of Police who can enter into building and conduct search and seizure. However, such seizure shall not be made unless a written complaint or report is made to the officer like Deputy Commissioner or Asst. Commissioner of Police. In the case on hand, there is nothing to demonstrate

8 8 such a complaint was given in writing or a report. As such, in the absence of any material being produced by the prosecution, filing of the charge sheet on mere raiding the premises without there being any written complaint or report, is bad in law. In the case of Eranna & Ors Vs State of Karnataka reported in 1977 (1) Karnataka Law Journal page 274 this Court has held that Unless the prosecution proved how the game of Andar Bahar is played and in what manner bettings are recorded, it could not be inferred that it was a pure and simple game of chance and not a game of skill. It is further held that 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. It is also held that It was not categorically proved that Andar Bahar is a game of chance and the accused were playing that game. As such, opined that they are not covered under the definition of gaming in a common

9 9 house. Further it is held that 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." Further it is held that Prosecution never proved that the game of chance was being played and no skill was involved in that game so that it could be considered to be a mere game of chance and opined that came of skill would not be held to be a gambling for the purpose of the Act. 5. In the case on hand, admittedly, the place is named as City Recreation Club and according to the learned counsel for the petitioners, there was no betting nor it was played as a game of choice and they were only demonstrating their skill by playing cards as a game of skill. 6. In the case on hand, nothing is demonstrated by the police as required under Section 80 and 81 of the

10 10 Karnataka Police Act that they have obtained a written complaint or report is made to them in writing. Simply proceeding to conduct raid and seizure stating that they are gambling in the absence of there being a prima facie demonstrated that the petitioners were playing a game of chance and not a skill and therefore, the offence under Section 79 and 80 of Karnataka Police Act do not attract. 7. As per the ratio laid down in the Eranna s case, even assuming that they were playing cards, if it is a game of skill, it is not gambling. 8. The amount recovered, if any in the context or seized by the police to the tune of Rs.3,23,385/- shall be forfeited to the State, as the petitioners are not claiming the alleged amount said to have been recovered from the possession of the petitioners. If the amount is in the custody of the Magistrate, it shall be forfeited to the State and if the amount is not handed over to the

11 11 custody of the Magistrate, concerned police to hand over the amount to the Magistrate to forfeit the amount to the State. However, the case registered in Crime No.29/2011 and further filing of the charge sheet against the petitioners in CC No.2294/2012 pending on the file of the III Addl. Civil Judge & JMFC, Gulbarga for the offences punishable under Sections 79 and 80 of the Karnataka Police Act is quashed. Petition is allowed. Sd/- JUDGE nsp