IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1486/2019 BETWEEN:
1. LANCY D’SOUZA S/O LATE SABSTAIN D’SOUZA AGED ABOUT 50 YEARS R/AT # 2/48, BAND HOUSE BANGRA, KULOOR, KULLOR MANGALORE, .D.K. - 575 101.
2. YAKUB S/O MOHAMMAD, AGED ABOUT 48 YEARS R/O NEAR GANAPATHI TEMPLE DOOR NO.119, 1ST BLOCK KATIPALYA VILLAGE MANGALURU - 575 003.
3. HARISH B S/O BASAPPA AGED ABOUT 45 YEARS R/AT PAVANJE PADUMANE HALEYANGADI VILLAGE MANGALORE - 575 014.
4. JANARDAN SHETTY S/O NARAYANA SHETTY AGED ABOUT 53 YEARS R/O DEEKSHITH NIVAS BEHIND ABHISHEK HOTEL KULAI VILLAGE MANGALORE - 575 003.
5. BALAKRISHANA S/O PIGINA MESTRI AGED ABOUT 47 YEARS R/A MADHYA PADVU SAGAR NILAYA MADHYA VILLAGE MANGALORE D.K. - 575 003.
6. ANIL BANGERA S/O RAMANATH AGED ABOUT 28 YEARS R/A NMPT COLONY DOOR NO.4, 3RD STAND PANAMBUR, D.K. - 575 013.
7. SHAHEER S/O SYED AGED ABOUT 25 YEARS R/AT IBRAHIM EBUVAVARA BADIGE ESCODI, KINNIGOLI PAKSHIKERE VILLAGE MANGALORE, D.K. - 575 013.
8. NASEER S/O ABBAS AGED ABOUT 48 YEARS R/A K.S. RAO NAGAR KOLNADU, NEAR KEB MULKI D.K. - 575 013.
9. RAVI S/O YAMUNAAPPA AGED ABOUT 25 YEARS R/A GUDDE KOPPLA OPP. RAMA BAJANA MANDIRA VENKAPPA HOUSE MANGALORE, D.K. - 575 013.
10. HARISH S/O JANARDHAN AGED ABOUT 45 YEARS R/A LAKSHAMI VENKATESH SHIVA SHAKTHI NAGAR KEREKADUY HOSABETTU VILLAGE, MANGALORE D.K. - 575 012.
11. CHANDRA SHEKAR S/O VENKAPPA GOWDA AGED ABOUT 36 YEARS R/A DOOR NO.4, RUKMANI SALINA BADIGE, BYKAMPADI MEENA KALIYA, PANAMBUR MANGALORE, D.K. - 575 012.
... PETITIONERS (BY SRI. NISHITH KUMAR SHETTY., ADVOCATE) AND:
STATE OF KARNATAKA BY SURATHKAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE - 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.3277/2015 (CR.NO.30/2015 OF SURATHKAL POLICE STATION) PENDING ON THE FILE OF THE II-JMFC, MANGALORE, FOR THE OFENCE P/U/S 80 OF KARNATAKA POLICE ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are before this Court for quashing the proceedings pending in C.C.No.3277/2015 (Crime No.30/2015), registered by Surathkal Police Station for the offences punishable under Section 80 of the Karnataka Police Act,1963 which proceedings are pending on the file JMFC(II Court), Mangaluru.
2. The gist of the prosecution case is:
The Assistant Commissioner of Police, Panamboor sub division had received credible information on 05.03.2015 at about 08.15 p.m. that in the Surathkal Sharada recreation association building some persons were playing card game of “Andhar Bahar” by indulging in gambling. Police have raided said place along with staff on the same day, that is, on 05.03.2015 at about 08.45 p.m., and found that petitioners were playing the game “Andhar Bahar” and alleging it is a game of chance, they seized cash of `74,235/- and other materials and apprehended petitioners 1 to 11.
3. I have heard the arguments of Sri Nishit Kumar Shetty, learned counsel appearing for petitioners and Sri S.Rachaiah, learned HCGP appearing for the State. Perused the records.
4. The contention of Sri Nishit Kumar Shetty, learned counsel appearing for the petitioners, is that offence alleged against petitioners is 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 game of cards of “Andhar Bahar” is a game of skill and not a game of chance. Hence, he prays for quashing of proceedings.
5. However, Sri. S.Rachaiah, learned HCGP appearing for the respondent-State would defend the initiation of prosecution against petitioners and prays for dismissal of the petition.
6. Having heard learned Advocates appearing for the parties and on perusal of records, it would not detain this Court for too long to accept the submissions made by learned counsel appearing for the petitioners inasmuch as material on record does not disclose that permission as required under Sub-Section (2) of Section 155 of Cr.P.C. had been obtained from the jurisdictional Magistrate by the respondent-police before registering the FIR in question against petitioners for the offence punishable under Section 80 of the Karnataka Police Act which undisputedly are non-cognizable offence. Thus, illegality in not obtaining permission as required under Section 155(2) of Cr.P.C. continues and as such continuation of proceedings would be an abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioners would succeed.
Hence, I proceed to pass the following:-
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending against petitioners in C.C.No.3277/2015 (Crime No.30/2015), registered by Surathkal Police Station for the offence punishable under Section 80 of the Karnataka Police Act,1963, on the file of JMFC (II Court), Mangaluru, stands quashed and petitioners are acquitted of the aforesaid offence.
SD/- JUDGE RU