IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2nd DAY OF APRIL 2019 BEFORE THE HON’BLE Mr. JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.796/2019 BETWEEN:
1. SRI NANDA KUMAR S/O. NARASIMHALU NAIDU AGED ABOUT 45 YEARS R/AT NO.401, 7TH ‘C’ MAIN ROAD HSR LAYOUT, 1ST STAGE, KALYAN NAGAR BENGALURU – 560 102 2. SRI CHETAN S/O. KRISHNAIAH AGED ABOUT 30 YEARS R/AT NO.87, 1ST MAIN ROAD, 3RD CROSS, NEAR ABBAIAH STUDIO UTTARAHALLI BENGALURU – 560 061 3. SRI J. UDAY KUMAR S/O. LATE JAYARAM AGED ABOUT 51 YEARS R/AT NO.21, 13TH MAIN ROAD BENDRE NAGAR, BSK 2ND STAGE BENGALURU – 560 061 4. SRI ARJUN S/O. PAPANNA AGED ABOUT 35 YEARS R/AT NO.260, CHOKKASANDRA T. DASARAHALLI BENGALURU – 560 057 5. SRI RAME REDDY S/O. MUNI REDDY AGED ABOUT 32 YEARS R/AT ATHITHI RESIDENCE OPT WHITE BRICK IN MUNNI REDDY PALYA, J.C. NAGAR BENGALURU – 560 006 6. SRI ADHINARAYAN S/O. VENKATARAMANA AGED ABOUT 30 YEARS R/AT ATHITHI RESIDENCE OPT WHITE BRICK IN MUNNI REDDY PALYA, J.C. NAGAR BENGALURU – 560 006 7. SRI KHADAR S/O. CHANDH MOHAMOHMED AGED ABOUT 42 YEARS R/AT NO.84, 3RD MAIN GANGANGAR BENGALURU – 560 032 8. SRI D. SATHYANARAYAN S/O. NARAYANMURTHY AGED ABOUT 49 YEARS R/AT NO.1-226, DHAYAVADI STREET PUTTAGONDA GURUV, PEDDA PUDI MANDALA EAST GODAVARI ANDRA PRADESH 9. SRI ANJANAPPA S/O. MUNIYAPPA AGED ABOUT 60 YEARS R/AT NO.34, MANCHAPPANA HALLI BANGALORE NORTH TALUK BENGALURU – 562 157 10. SRI UMESH S/O. NAGARAJU AGED ABOUT 40 YEARS R/AT NO.23, 3RD FLOOR 2ND CROSS, ANJANAPPA GARDEN J.C. NAGAR BENGALURU – 560 006 11. SRI HAMPANNA S/O. NANDAPPA AGED ABOUT 52 YEARS R/AT NO.758, KONANAKUNTE NEAR GANESH TEMPLE BENGALURU – 560 0 .
12. SRI SHASHIDHAR S/O. PANDURANGA REDDY AGED ABOUT 37 YEARS R/AT FLAT NO.205 INPICARAPILANCE APARTMENT GUNJUR PALYA ROAD, GUNJUR BENGALURU – 560 087 13. SRI MOHAN RAO S/O. NARASIMHALU AGED ABOUT 45 YEARS R/AT FLAT NO.401, DT & SR, PARADAISE 6TH CROSS, 7TH MAIN ROAD BANASAWADI MAIN ROAD M.S. NAGAR BENGALURU – 560 033 14. SRI INULLA S/O. D.H. KHALANDAR AGED ABOUT 34 YEARS R/AT NO. 4TH CROSS, GANGOTHRI NAGAR GANGOTHRI NAGAR, S.I.T.
TUMAKURU – 572 101.
15. SRI. SRI RAME REDDY S/O. VENKATARAMANA AGED ABOUT 31 YEARS R/AT NO.13-139-1-3, GURUG STREET PEMPALLI, KADAPA DISTRICT ANDRA PRADESH – 516 001 ... PETITIONERS (BY SRI BHARATH KUMAR V. ADVOCATE) AND:
1. STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER SADASHIVANAGARA POLICE STATION BENGALURU – 560 020 REPRESENTED BY STATE PUBLIC PROSECUTOR HON’BLE HIGH COURT OF KARNATAKA BENGALURU – 560 001 2. POLICE INSPECTOR CITY CRIME BRANCH SPECIAL ENQUIRY SQUAD N.T. PET BENGALURU – 560 018 ... RESPONDENTS (BY SRI S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE FIR BEARING No.1/2019 DATED 06.01.2019 ALONG WITH THE INFORMATION DATED 05.01.2019 REGISTERED WITH THE RESPONDENT SADASHIVANAGARA POLICE STATION AND PENDING ON THE FILE OF THE HON’BLE METROPOLITAN MAGISTRATE TRAFFIC COURT – I, BENGALURU WHEREIN THE PETITIONER NO.1 TO 15 ARE ARRAIGNED AS ACCUSED NOS.2 TO 16 FOR THE ALLEGED OFFENCES UNDER SECTIONS 79 AND 80 OF THE KARNATAKA POLICE ACT (ANNEXURE – ‘A’ & ‘A1’).
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri.Bharath Kumar.V, learned counsel appearing for petitioners and Sri.S.Rachaiah, learned High Court Government Pleader appearing for the State. Perused the records.
2. Petitioners who have been arraigned as Accused Nos.2 to 16 in Crime No.1/2019 have sought for quashing of the said proceedings which has been registered for the offence punishable under Sections 79 and 80 of the Karnataka Police Act. Contention of Mr.Bharath Kumar is three-fold. He has contended that firstly, initiation of prosecution is contrary to mandate of Section 155(2) of Cr.P.C; secondly, alleged permission granted by the learned Magistrate is without judicious application of mind; thirdly, prosecution has not alleged in the complaint with exactitude as to the nature of game that was being played, which according to the prosecution amounts to gambling.
3. Per contra, Sri.Rachaiah, learned High Court Govt. Pleader would support the case of the prosecution.
4. Having heard the learned counsel appearing for the parties and on perusal of records, it would disclose that complaint came to be registered against petitioners alleging that on 05.01.2019, petitioners had indulged in gambling and were possessing playing cards by wagering money and as such, it amounts to betting. The complaint came to be registered for the offence punishable under Sections 79 and 80 of the Karnataka Police Act in Crime No.1/2019.
5. The undisputed fact which emerges from the case papers is that offence alleged against the petitioner are non-cognizable and as such, obtaining of permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C., is mandatory. In the instant case, the prosecution by relying upon the endorsement on the purported permission said to have been granted by the jurisdictional Magistrate on 06.01.2019 (Annexure- B) wherein the learned Magistrate is said to have granted permission by an endorsement dated 06.01.2019 to the effect “permitted” has contended it is in compliance of Section 155(2) of Cr.P.C.
6. At this stage, it would be appropriate to notice the observation made by the co-ordinate Bench in Criminal Petition No.3082/2007 dated 22.10.2008 at Paragraph 9 and it reads:
“Even otherwise a perusal of the order of the Judge, which is in manuscript written over the representation by the Sub-Inspector of Police, does not disclose application of mind. As noticed supra the JMFC ought to have applied his mind to the facts, satisfied himself as to whether there are reasonable grounds to believe that a non-cognizable offence is committed and having not done so, the act is both, arbitrary and capricious.”
7. Thus, before granting permission, learned Magistrate has to examine the material which would be produced for granting permission or in other words, the Magistrate has to go through the contents of the material submitted by the Police Officer and record his satisfaction with regard to the grounds to believe that non-cognizable offence has been committed. This Court after adverting to earlier decision in WRIT PETITION No.42073- 42075/2018 (GM-RES) (THE PADUBIDRI MEMBERS LOUNGE AND OTHERS v/s.DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE, BENGALURU AND OTHERS) that endorsement made by the learned Magistrate stating “permitted” does not satisfy the requirement of Section 155(2) of Cr.P.C., had quashed the proceedings. As such, registration of F.I.R on the basis of the purported permission which is not in accordance with the mandate of Section 155(2) if allowed to be continued, it would be an abuse of process of law.
8. Yet another point which cannot go unnoticed is the fact that prosecution has to satisfy as to the nature of gambling which was being carried on by the accused persons and playing cards would not amount to gambling. It may be a game of skill and also game of chance. Thus, it all depends on facts and circumstances of each case. If the allegation is vague and on the basis of said vague allegation if the prosecution is allowed to continue, it would not lead to conviction and it would be waste of precious judicial time. As such, continuation of present proceedings would not sub- serve the ends of justice.
9. Hence, the following:
ORDER (i) Criminal Petition is allowed;
(ii) Proceedings pending in Crime No.1/2019 on the file of the Metropolitan Magistrate (Traffic Court- 1), Nrupatunga Road, Bengaluru city, is hereby quashed and petitioners are acquitted of the aforesaid offences.
In view of disposal of petition on merits, I.A.1/2019 for stay does not survive for consideration and it is according, disposed of.
SD/- JUDGE bnv*