IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2161/2019 BETWEEN:
1. SRI. DYANYA S/O LATE AMBRASE AGED ABOUT 44 YEARS R/AT NO.25, WEST ROAD AUSTIN TOWN BENGALURU – 560 047.
2. SRI. MEHABUB SHARIFF S/O YAKUB SHARIF AGED ABOUT 34 YEARS R/AT NO.27, 14TH CROSS BHUVANESHWAR NAGAR SULTHAN PALYA, R.T. NAGAR BENGALURU – 560 032.
3. SRI. R. SURESH S/O RAJANNA AGED ABOUT 49 YEARS R/AT: 14A NO.1ST STREET HALURU, BENGALURU – 560 004.
4. SRI. SHEKAR S/O NAGARAJU AGED ABOUT 38 YEARS R/AT: NO.511, 5TH CROSS 6TH MAIN, V.R. NAGAR 1ST BLOCK JAYANAGAR BENGALURU – 560 041.
5. A. MANOHAR S/O LATE HADIYAPPA AGED ABOUT 40 YEARS R/AT: NO.5, 2ND CROSS SHAMAN GARDEN ADUGODI BENGALURU – 560 030.
6. SRI. NAVEEN KUMAR S/O ANAND BABU AGED ABOUT 43 YEARS R/AT: NO.42, 13TH CROSS KAMALA BUILDING OPP GANGA NAGAR BENGALURU – 560 032.
7. SRI. TABREZ PASHA S/O IKABAL PASHA AGED ABOUT 36 YEARS R/AT: NO.3/1, 16TH MAIN LAKSANDRA BENGALURU – 560 030.
8. SRI. NARAYANA PUJARI S/O BABU PUJARI AGED ABOUT 47 YEARS R/AT NO.362/9TH CROSS JAKKURA LAYOUT BENGLAURU – 560 064.
9. SRI. HASAN RAJ S/O NABUVAT ALI AGED ABOUT 47 YEARS R/AT NO.26, BLOCK NO.9 2ND BUILDING ALPRIDE STREET RICHMOND TOWN BENGALURU – 560 025.
10. SRI. RAGHUNATH S/O AKKAPPA AGED ABOUT 43 YEARS R/AT NO.429, 5TH CROSS 6TH MAIN, VENKATAREDENAGAR 1ST BLOCK, JAYANAGAR BENGALURU – 560 041.
11. CHANDREGOWDA S/O CHIKKAPAPE GOWDA AGED ABOUT 56 YEARS R/AT NO.64, 6TH MAIN KALAPPA BLOCK, SHRINAGAR BENGALURU – 560 050.
12. SRI. MADHU K.T S/O THIMME GOWDA AGED ABOUT 36 YEARS R/AT NO.72, 7TH CROSS KONAPPA AGRAHARA ELECTRONIC CITY BENGLAURU - 560 100.
13. SRI. HANUMANTARAYA S/O BALAYYA AGED ABOUT 55 YEARS R/AT NO.31, 5TH CROSS MUNIVEERAPPA LAYOUT SHYAMAPURA, R.T. NAGAR BENGALURU – 560 032.
14. SRI. MUJIR AHAMMED S/O AMIR JAN AGED ABOUT 55 YEARS R/AT NO.8, OLD PENSION MOHALLA, CHAMARAJA PETE MYSORE ROAD BANGALORE – 560 018.
15. SRI. DEEPAK S/O RAJKUMAR AGED ABOUT 32 YEARS R/AT 17, 1ST MAIN, 2ND CROSS VALMIKINAGAR, MYSORE ROAD BENGALURU – 560 060.
(BY SRI. BHARATH KUMAR V., ADVOCATE) ... PETITIONERS AND:
1. STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER, ASHOK NAGAR POLICE STATION BENGALURU – 560 050 REPRESENTED BY STATE PUBLIC PROSECUTOR HON’BLE HIGH COURT OF KARNATAKA, BENGALURU – 560 001.
2. POLICE INSPECTOR CITY CRIME BRANCH, N.T. PET BENGLAURU – 560 018.
(BY SRI. S. RACHAIAH, HCGP) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR BEARING NO.65/2019 DATED:09.03.2019 ALONG WITH THE INFORMATION DATED:09.03.2019 REGISTERED WITH THE RESPONDENT ASHOK NAGAR P.S., AND PENDING ON THE FILE I-M.M.T.C., BANGALORE WHEREIN THE PETITIONER NO.1 TO 15 ARE ARRAIGNED AS ACCUSED NO.1 TO 15 FOR THE ALLEGED OFFENCES U/S 79, 80 OF KARNATAKA POLICE ACT (ANNEXED VIDE ANNEXURE-A AND A1).
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 of the proceedings pending in Crime No.65/2019 registered by Ashoknagar police station, Bengaluru for the offences punishable under Sections 79 and 80 of the Karnataka Police Act which proceedings are pending on the file of Metropolitan Magistrate Traffic Court-I, Bengaluru.
2. The gist of the prosecution case is as follows:- The Sub Inspector of Police had received credible information on 09.03.2019 at about 2.00 p.m., that in the premises bearing No.31, Om Cultural Recreation and Social Association Club, Gold Towers, Residency Road, Bangalore some persons were playing Dart cards game by indulging in gambling. Police have raided said place along with staff on the same day, i.e., on 09.03.2019 at about 5.30 p.m. and found that petitioners were gambling by playing Dart game and alleging it is a game of chance, they seized cash of Rs.25,150/- and other material and also apprehended petitioners. For quashing of said proceedings petitioners are before this Court.
3. I have heard the arguments of Sri Bharath Kumar V, learned counsel appearing for petitioners and Sri S.Rachaiah, learned HCGP appearing for State. Perused the records.
4. The contention of Sri Bharath Kumar V, learned counsel appearing for petitioners is that offences alleged against petitioners are 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 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 of Dart game is a game of skill and not a game of chance. Hence, he prays for quashing of said 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 by contending permission from jurisdictional Magistrate had been obtained. Hence, he prays for dismissed of petition.
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 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 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 such information received by the police shall be entered in a Book to be kept by such 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 by police before according permission is also necessary. There is no material on record to this effect and communication dated 05.06.2016 relied upon by the prosecution does not satisfy the requirement of Section 159(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 proceedings initiated against petitioners would not stand the test of law. On this short ground itself, petitioners will have to succeed in this petition.
Hence, I proceed to pass the following:-
ORDER (i) Criminal Petition is hereby allowed.
(ii) Proceedings pending against petitioners in Crime No.65/2019 registered by Ashok Nagar Police Station for the offence punishable under Sections 79 & 80 of the Karnataka Police Act, 1961 on the file of Metropolitan Magistrate Traffic Court-I, Bengaluru stands quashed and petitioners are acquitted of aforesaid offences.
SD/- JUDGE *sp