IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NOS.10601-602/2018 Between:
1. Sri. Hariraj Shetty, S/o Vasanthram Shetty, Aged about 55 years, No.15, Cunningham Road, Bengaluru – 560 052.
2. Sri. Jitnesh S/o Vinod Poojari, Aged about 24 years, No.3-137-E-35 Ashraya Nagar Thiruvalli, Vamanjoor, Mangalore-575 028. ... Petitioners (By Sri Mohd Usman Shaikh, Advocate) And:
1. State of Karnataka By Home Secretary, Government of Karnataka, Vidhana Soudha, Bengaluru-560 001.
2. The Director General of Police Karnataka, Office of the Director General of Police, Police Head Quarters, Nuruputunga Road, Bengaluru-560 001. ... Respondents (By Sri S. Rachaiah, HCGP) These Writ Petitions are filed under Articles 226 and 227 of Constitution of India read with Section 482 of CPC praying to quash the charge sheet in C.C.No.3115/2017 vide Annexure-F pending on the board of the Hon’ble VI Metropolitan Magistrate Traffic Court at Bengaluru and etc., These Writ Petitions coming for Hearing on Interlocutory application this day, the Court made the following:
O R D E R Petitioners are assailing the proceedings initiated against them in CC.No.3115 of 2017 (Crime No.94 of 2017) for the offence punishable under Sections 79 & 80 of Karnataka Police Act, 1963 pending on the file of VI Metropolitan Magistrate Traffic Court at Bengaluru.
2. Short facts leading to filing of these petitions are as under:-
The case of the prosecution is that on 24-3-2017 at about 01.00 p.m., Police Inspector of CCB, Special Enquiry Wing N.T.Pet, Bengaluru Basaveshwarnagar (complainant) received credible information that Members of Recreation Launch situated at No.471/472, 2nd floor, Basaveshwarnagar Main Road, 1st Main, 1st Stage, West of Chord road, Rajajinagar Industrial Town, Benglauru, some persons were playing video game which is a game of chance, by staking money and indulging in gambling. On receipt of said information and after obtaining permission from jurisdictional Magistrate a raid came to be conducted at about 3.00 p.m. on the Club, by securing panchas has apprehended the petitioners and seized the material at the Club. Hence, alleging that petitioners have committed an offence punishable under Sections 79 and 80 of the Karnataka Police Act, charge sheet came to be filed after conducting investigation. Jurisdictional Court has taken cognizance of the offence alleged against petitioners and has issued process to petitioners/accused persons. Hence, for quashing of said proceedings petitioners are before the Court.
3. It is the contention of Sri Mohd. Usman Shaikh, learned counsel appearing for petitioners that video game is only a game of skill and not a game of chance and records of prosecution also does not disclose that it is a game of chance and in the absence of any such material, proceeding with the prosecution against petitioners would not serve any fruitful purpose but on the other hand, it would be abuse of process of law and as such he prays for quashing of the proceedings.
4. Though learned High Court Government Pleader appearing for respondent-State would defend the prosecution initiated against petitioners, this Court cannot lose sight of the fact that in identical circumstances in Criminal Petition No.4847 of 2017 and Criminal Petition No.7694 of 2017, (disposed off on 30- 11-2017) coordinate Bench of this Court after taking note of Judgment of this Court in the case of ERANNA AND OTHERS Vs. STATE OF KARNATAKA reported in 1977(1)Karnataka Law Journal, wherein it has been held that unless the prosecution proves as to how the game was played and in what manner bettings were placed, it cannot be inferred that it was pure and simple game of chance and not a game of skill and as such it has to be held that it was unable to reconcile as to how video game would be a game of chance and no skill is required to play that particular game. It came to be held:-
“4. After perusal of the records, this Court is unable to reconcile as to how this ‘Video Game’ is styled as game of chance only and no skill is required to play that particular game. Even in the charge sheet there is no description as to how that particular game can be played and as to whether any skill is required to play such game or not. Therefore, in the absence of such explanation by the police officials in the charge-sheet papers, who have got expertise in that line or any expert has opined that the games played by some of the customers, is a game of chance or game of skill. Certainly it can be held that it is game of chance and can be proceeded in accordance with law, if such explanation is available.”
In the light of aforesaid position of law of which this court is in complete agreement, when material on record is examined, it would disclose that jurisdictional police on receiving credible information had conducted a search of the premises of Members Recreation Launch situated at No.471/472, 2nd floor, Basaveshwarnagar Main Road, 1st Main, 1st Stage, West of Chord road, Rajajinagar Industrial Town, Benglauru, on 24-3-2017 at about 3.00 p.m. and found that petitioners were playing video game and it is specifically alleged by the prosecution that petitioner has placed at stake money to play said game with the help of machines. Hence, police arrived at a conclusion that it amounts to gambling. Records would also disclose that police have noticed such game was being played with the help of rotating disc which was having some printed number and people could stake their money on any number and after rotating the disc when said disc stops at a particular number for a while, then such persons who would have bid on the said number would get ten times the amount on the number which they have staked their money, viz., in the event of number pointed out by the needle attached to the disc is the same number as that which had been staked by the persons placing the bid they would lower and it amounts to gambling. Therefore, police have arrived to a conclusion that it is gambling. In the instant case, no conclusive material is placed before the Court to establish that it is a game of chance and not a game of skill. However, if any skill is required for purpose of playing a particular game, in such an eventuality such game cannot be equated to gambling. Hence, in the absence of any such positive materials placed to show it is a game of chance and when police themselves are obtaining information from experts on this line, it would be too far fetched for the police to call upon the trial court to draw an inference that such game should be construed as a game of chance. In that view of the matter, this Court is of the considered view that continuation of prosecution against the petitioners would not serve the purpose or in other words it would amount to abuse of process of law.
Hence, the following:-
ORDER (i) Writ Petitions are allowed.
(ii) Proceedings pending in C.C.No.3115 of 2017 (Crime No.94 of 2017) on the file of VI Metropolitan Magistrate Traffic Court at Bengaluru against the petitioners for the offence punishable under Sections 79 & 80 of the Karnataka Police Act, 1963 and all further proceedings in so far as petitioners is hereby quashed and petitioners are acquitted of said offences.
SD/-
JUDGE PYR