IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1169 OF 2019 BETWEEN:
1. Sri. Ganesh S/o Jayakar Shetty, Aged about 34 years, R/at. Banneralakatte, Billadi Village, Udupi Taluk & District-576101.
2. Sri Mohana S/o Sudakara Shetty, Aged about 36 Years, R/at. Sirooru Muddumane, Sirooru Village, Udupi Taluk & District-576101.
3. Sri Ananda S/o Rama Bangera, Aged about 40 years, R/at Barhama Nagara, Hunsemakki, Yadadi-Mathayadi, Udupi Taluk and District-576101.
4. Sri Sanjeeva Mogaveera S/o Chikka Mogaveera, Aged about 26 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
5. Sri Manjunatha Shettigar S/o Hanumantha Shettigar, Aged about 33 Years, R/at Kalavara Village, Udupi Taluk and District-576101.
6. Sri Vishwanatha Shetty S/o Surya Shetty, Aged about 32 Years, R/at. Siriyara, Udupi Taluk and District-576101.
7. Sri Laxminarayana Shetty S/o Bhujanga Shetty, Aged about 40 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
8. Sri Dinesh S/o Koragayya, Aged about 34 Years, R/at.Kalavara Village, Udupi Taluk and District-576101.
9. Sri Prabhakar Chandan S/o Sanjeeva Mogaveera, Aged about 26 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
10. Sri Surendra Shetty S/o Manjunatha Shetty, Aged about 30 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
11. Sri Chethan Shetty S/o Ashok Shetty, Aged about 26 years, R/at. Beluru, Udupi Taluk and District-576101.
12. Sri Mithun S/o Sanjeeva Shetty, Aged about 24 years, R/at Arekallu Mane, Korgi Village, Kundapura, Udupi District-576101.
13. Sri Sudhakara S/o Rama Mogaveera, Aged about 34 years, R/at. Koteshwara, Udupi Taluk and District-576101.
And also R/at:
Pooja Nilaya Beejadi Village Kundapura, Udupi.
14. Sri Pradeep Shetty S/o Karunakara Shetty, Aged about 32 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
15. Sri Rajesh Shetty S/o Sanjeeva Shetty, Aged about 33 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
16. Sri Annappa Achar S/o Srinivas Achar, Aged about 34 years, R/at. Japthi, Udupi Taluk and District-576101.
17. Sri Vikas Hegde S/o Chandrashekar Hegde, Aged about 28 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
18. Sri Prashanth Shetty S/o Vittal Shetty, Aged about 48 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
19. Sri Subramanya S/o Laxman Balegar, Aged about 32 years, R/at. Kalavara Village, Udupi Taluk and District-576101.
20. Sri Chandra Poojary S/o Nrasimha Poojary, Aged about 38 years, R/at Korgi Village, Udupi Taluk and District-576101.
21. Sri Raghavendra Achary S/o Ananda Achary, Aged about 28 years, R/at. Kedoor Village, Udupi Taluk and District-576101.
22. Sri Udaya S/o Ananda Kotary, Aged about 26 years, R/at Japthi, Udupi Taluk and District-576101.
23. Sri Raghava S/o Govinda Balegar, Aged about 31 years, R/at Korgi, Udupi Taluk and District-576101.
24. Sri Pradeep S/o Seetharamagowda, Aged about 23 years, R/at Korgi, Udupi Taluk and District-576101.
... Petitioners (By Sri Nagarja H.R., Advocate) AND State of Karnataka Represented by SHO, Kota Police Station, Udupi District-576221, Rep. by SPP, High Court Building, Bengaluru – 01.
... Respondent (By Sri. S Rachaiah – HCGP for Respondent) Crl.P filed under Section 482 Cr.P.C praying to quash the charge sheet filed by the respondent police against the petitioners who are named as Accused No.3, 4, 6, 8 to 10, 14 to 24, 27 to 32 and 34 in C.C. No. 1992/2018 on the file of Additional Civil Judge and J.M.F.C., Kundapura which is produced as Annexure-C.
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 C.C.No.1992 of 2018 (Crime No.23 of 2018) on the file of Addl.Civil Judge and JMFC, Kundapura, registered by Kota PS for the offence punishable under Sections 79 & 80 of the Karnataka Police Act, 1963.
2. The gist of the prosecution case is:
Respondent police received a credible information on 28.01.2018 by one of its informant stating that petitioners were playing “Andhar Bahar” card game by indulging in gambling, at the premises belonging to one Udayakumar Shetty, Mastikatte Village, Kundapura Taluk. In furtherance of said information, Police had rushed to the spot and had arrested the petitioners and seized items which were used for playing Andar Bahar card game and had also seized amount of Rs.1,65,000/- Thereafter, FIR came to be registered against petitioners in Cr.No.23/2018 for the offence punishable under Sections 79 and 80 of Karnataka Police Act, 1963.
3. Heard Sri Nagaraja H.R., learned counsel appearing for the petitioners and Sri S.Rachaiah, learned HCGP appearing for the State. Perused the records.
4. The contention of Sri Nagaraja H.R., learned counsel appearing for the petitioners, is that offences alleged against the petitioners are non-cognizable and without obtaining permission from the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C, 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 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, 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 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 police before registering the FIR in question against the petitioners for the offence punishable under Sections 79 & 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 continuation of proceedings against petitioners would be abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioners will have to succeed.
Hence, the following:-
ORDER (i) Criminal Petition is hereby allowed.
(ii) Proceedings pending in C.C.No.1992 of 2018 (Crime No.23 of 2018), on the file of Additional Civil Judge and JMFC, Kundapura, is quashed and petitioners are acquitted of the aforesaid offence.
I.A.No.1 of 2019 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE DKB