IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.1120 of 2018 BETWEEN:
1. Ninganna Swamy S/o Sri. Mariswamy, Aged about 42 years, Now R/at No.2333, 2B Cross, Dattagally, Kanakadas Nagar, Mysuru – 570 023.
2. Nagaraju S/o Sri. Mariyanna, Aged about 39 years, Now R/at No.16, Parijatha Police Quarters, Jyothi Nagar, Mysuru – 570 019.
(By Ms. Kalyani Agarwal, Advocate for Sri. Sharath Gowda G.B., Advocate) AND:
State by K.R. Police Station Represented by Public Prosecutor High Court of Karnataka, Bengaluru – 560 001.
(By Sri. S.T. Naik, HCGP) ... Petitioners ... Respondent This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, praying to quash the charge sheet and consequently the entire proceedings in C.C. No.741/2014 on the file of III JMFC, Mysuru.
This Criminal Petition coming on for Admission this day, the court made the following:
ORDER Petitioners are before this Court for quashing of the proceedings pending in C.C. No.741/2014 (Crime No.88/2014), registered by Krishnaraja Police Station for the offences punishable under Section 80 of the Karnataka Police Act, 1963 which are pending on the file JMFC(III Court), Mysuru.
2. The gist of the prosecution case is as follows:-
Respondent-Krishnaraja Police had received a credible information on 06.03.2014 at about 3.00 p.m., that in the roof top of the old disputed building, which is opposite to Hindi Prachara Sabha Building, Vani Vilasa Road, Mysuru five to six persons were playing cards game of “Andhar Bahar” by indulging in gambling. Police raided said place along with staff on the same day, that is, on 06.03.2014 at about 3.50 p.m., and found that petitioners were playing the game “Andhar Bahar” and alleging it is a game of chance, they seized cash of Rs.400/- and other materials and apprehended petitioners 1 and 2.
3. I have heard the arguments of Ms. Kalyani Agarwal, learned counsel appearing on behalf of Sri. Sharath Gowda G.B., for the petitioners and Sri S.T. Naik, learned HCGP appearing for the State. Perused records.
4. The contention of Ms. Kalyani Agarwal, learned counsel appearing for the petitioners, is that offences alleged against petitioners 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. She would also elaborate her submissions by contending that playing the game of cards “Andhar Bahar” is a game of skill and not a game of chance. Hence, she prays for quashing of the proceedings.
5. However, the learned State Public Prosecutor appearing for the respondent-State would defend the initiation of prosecution against petitioners and prays for dismissal of the petition.
6. Having heard the learned Advocates appearing for the parties and on perusal of records, it would not detain this court for too long to accept the submissions of learned counsel appearing for the petitioners 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 against the petitioners for the offence punishable under Section 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 would be abuse of process of law and as it cannot stand the test of law. On this short ground itself, petitioners have to succeed.
Hence, the following:-
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending in C.C.No.741/2014 (Crime No.88/2014), on the file of JMFC (III Court), Mysuru, stands quashed and petitioners are acquitted of the offences alleged.
I.A.No.1 of 2018 for stay does not survive for consideration and it stands rejected.
Sd/- JUDGE MBM