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.1506/2019 BETWEEN:
RAJESH S/O SANJEEVA KUKYAN AGED ABOUT 41 YEARS R/A #NEAR KRISHNAPURA MUTT CHOKKABETTU, SURATHKAL MANGALORE TALUK D.K. DISTRICT – 575 013.
... PETITIONER (BY SRI. NISHITH KUMAR SHETTY., ADVOCATE) AND:
STATE OF KARNATAKA BY SURATHKAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE - 560 001.
... RESPONDENT (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDING AGAINST THE PETITIONER IN C.C.NO.1627/2017 (CRIME NO.30/2015) OF SURATHKAL POLICE STATION, IN MAIN C.C.NO.3277/2015, PENDING ON THE FILE OF THE J.M.F.C., II COURT, MANGALORE, D.K., DISTRICT FOR THE OFFENCE P/U/S 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 the proceedings pending in C.C.No.1627/2017 (Crime No.30/2015), registered by Surathkal Police Station for the offences punishable under Section 80 of the Karnataka Police Act,1963, 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 at Surathkal Sharada Recreation Association building some persons were playing cards game of “Andhar Bahar” by indulging in gambling. Hence, 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 petitioner was playing the game of “Andhar Bahar” and alleging it is a game of chance, they seized cash of `74,235/- and other materials and apprehended petitioner (accused No.8).
3. I have heard the arguments of Sri Nishit Kumar Shetty, learned counsel appearing for the petitioner 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 petitioner, is that offence alleged against petitioner is a non-cognizable and without obtaining permission from the jurisdictional Magistrate as required under Section 155(2) of Cr.P.C, same has been registered and investigated and as such proceedings cannot be continued and 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, 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 petitioner 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 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 against the petitioner for the offence punishable under Section 80 of the Karnataka Police Act which undisputedly it 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 an 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 allowed.
(ii) Proceedings pending against petitioner in C.C.No.1627/2017 (Crime No.30/2015), registered by Surathkal Police Station for the offences punishable under Section 80 of the Karnataka Police Act,1963, on the file of JMFC (II Court), Mangaluru, stands quashed and petitioner is acquitted of the aforesaid offence.
SD/- JUDGE RU