IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.918/2019 BETWEEN:
D.K. BARKATHULLA S/O LATE SHAIK HUSSAIN AGED 54 YEARS MANDYA ROAD 1ST CROSS NAGAMANGALA MANDYA - 571 432.
(BY SRI. AJIT P.B., ADVOCATE) AND:
THE STATE OF KARNATAKA REPRESENTED BY NAGAMANGALA TOWN POLICE STATION NAGAMANGALA MANDYA REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA AT BANGALORE – 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS AGAINST THE PETITIONER/ACCUSED NO.1 IN C.C.NO.363/2014 PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA, MANDYA AND QUASH THE FIR IN CR.NO.183/2018 REGISTERED BY THE RESPONDENT, NAGAMANAGALA TOWN POLICE, NAGAMANGALA FOR THE OFFENCE P/U/S 79, 80 OF THE KARNATAKA POLICE ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is before this Court for quashing of the proceedings pending in C.C. No.363/2014 (Crime No.183/2018), registered by Nagamangala Town police station, for the offences punishable under Sections 79 and 80 of the Karnataka Police Act which proceedings are pending on the file of learned Senior Civil Judge & JMFC, Nagamangala.
2. The gist of the prosecution case is as follows:-
The Sub Inspector of Police had received a credible information on 01.12.2013 at about 4.00 p.m., that in the premises situated at Coconut plantation belonging to Sri Mallegowda, Koppalu village, Nagamangala, some persons were playing cards game of “Andhar Bahar” by indulging in gambling. Police have raided said place along with staff on the same day, that is, on 01.12.2013 at about 5.00 p.m., and found that petitioner was playing the game “Andhar Bahar” along with other accused persons and alleging it is a game of chance, they seized cash of Rs.1,11,910/- and other materials and apprehended petitioners.
3. I have heard the arguments of Sri Ajit P.B., learned counsel appearing for the petitioner and Sri S.Rachaiah, learned HCGP appearing for the State. Perused the records.
4. The contention of Sri Ajit P.B., learned counsel appearing for the petitioner is that offences alleged against petitioner are non-cognizable and without obtaining permission from the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C, same has been registered and investigation has been taken up and as such proceedings cannot be continued as it is illegal. He would also elaborate his submissions by contending that playing the game of cards as “Andhar Bahar” is a game of skill and not a game of chance. Hence, prays for quashing of proceedings.
5. However, the learned High Court Government Pleader appearing for the respondent- State would defend the initiation of prosecution against petitioners and prays for dismissal of the petition contending permission from Magistrate had been obtained.
6. Having heard the learned Advocates appearing for the parties and on perusal of records, it would not detain the Court for long to accept the submissions of learned counsel appearing for the petitioner inasmuch as, material on record does not disclose that permission as prescribed under Sub- Section (2) of Section 155 of Cr.P.C. had been obtained from the jurisdictional Magistrate by the respondent before registering the FIR in question for the offences punishable under Sections 79 & 80 of the Karnataka Police Act which undisputedly is a non-cognizable offence. Thus, illegality in not obtaining permission as required under Section 155(2) of Cr.P.C. continues and as such the continuation of proceedings against petitioner would be abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioner has to succeed.
Hence, I proceed to pass the following:-
ORDER (i) Criminal Petition is hereby allowed.
(ii) Proceedings against petitioner in C.C.No.363/2014 (Crime No.183/2018) pending on the file of Senior Civil Judge and JMFC, Nagamangala stands quashed and petitioner is acquitted of the above said offences.
In view of disposal of the petition, I.A.No.1/2018 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE *sp