IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.39 of 2018 BETWEEN:
1. Shubhanath S/o Samuel, Aged about 29 years, R/at Shashi Compound, 2nd Cross, Kodikal Cross, Mangaluru – 575 003.
2. Ramakrishna S/o Devappa Das, Aged about 38 years, Devinagara, Padavinangadi, Mangaluru – 575 102.
3. Subhash Hegde S/o Rajeev Hegde, Aged about 31 years, R/at Devinagara, Kumjabailu, Mangaluru District – 576 101.
4. Vishal Kumar S/o Jagadish Suvarna, Aged about 22 years, R/at Devinagara, Kumjabailu, Mangaluru District – 576 101.
5. Bryan D’Souza S/o Felix Vegas D’Souza, Aged about 21 years, R/at Baddur House, Padukodi Village, Mangaluru – 575 003.
6. John Baptist Saldana S/o Jacob Saldana, Aged about 60 years, R/at Melthota House, Kulashekhara Post, Mangaluru – 575 003.
7. Ramesh S/o Vasudev, Aged about 42 years, R/at Kavvrukatte, Kavvur Post, Mangaluru – 575 006. ... Petitioners (By Sri. Nishith Kumar Shetty, Advocate) AND:
State of Karnataka By Mangaluru Urva Police Station, Represented by Public Prosecutor, High Court Building, Bengaluru – 560 001. ... Respondent (By Sri. S. Rachaiah, HCGP) This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, praying to quash the entire proceedings in C.C. No.306/2017 (Cr. No.92/2016 of Mangaluru Urva Police Station) pending on the file of III-JMFC, Mangaluru for the offence punishable under Sections 79, 80 of Karnataka Police Act.
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.306/2017 (Crime No.92/2016), registered by Mangaluru Urva 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 JMFC (III Court), Mangaluru, Dakshina Kannada.
2. The gist of the prosecution case is as follows:-
The Police Inspector had received a credible information on 06.08.2016 at about 18.05 hours that in door No.1-15/13, Second Floor of Danush Building situated at Kotara Chowki, Mangaluru City some persons were playing a game called ‘skilled game’ and had indulged in gambling. Police have raided said place along with staff on the same day, that is, on 06.08.2016 and found that petitioners were playing the game “skilled game” and alleging it is a game of chance, they seized cash of Rs.8,700/- and other materials and apprehended the petitioners.
3. I have heard the arguments of Sri Nishith Kumar Shetty, learned counsel appearing for the petitioners and Sri. S.Rachaiah, learned HCGP appearing for the State. Perused records.
4. The contention of Sri Nishith Kumar Shetty, 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, FIR 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 “skilled game” is a game of skill and not a game of chance. Hence, he prays for quashing of the proceedings pending against the petitioners.
5. However, 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 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 before registering the FIR in question against the petitioners for the offences punishable under Sections 79 & 80 of the Karnataka Police Act which undisputedly is a non-cognizable offence. Though Mr. Rachaiah would rely upon the communication dated 05.06.2016 to contend such permission was obtained from Magistrate before proceeding to raid, it cannot be held that permission granted in the instant case by the Magistrate would meet the requirement of law. Section 155(1) of Cr.P.C. mandates that on such information received by the police same shall be entered in a Book to be kept by the Station House Officer in such Form. Thus, entering of substance of information so received in a Book kept at Police Station and reference to it to the Magistrate is necessary. Likewise application of judicial mind by the Magistrate to the material placed before it by the police before according permission is also necessary. There is no material on record whatsoever in the instance case to this effect and communication dated 05.06.2016 relied upon by prosecution does not satisfy the requirement of Section 155(1) and (2) of Cr.P..C. as noticed hereinabove. 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 an abuse of process of law and as such, impugned proceedings against petitioners cannot stand the test of law. On this short ground itself, petitioners would succeed.
Hence, the following:-
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending in C.C.No.306/2017 (Crime No.92/2016), on the file of JMFC (III Court), Mangaluru, Dakshina Kannada stands quashed and petitioners are acquitted of the offences alleged.
Sd/- JUDGE MBM