IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5778/2017 BETWEEN:
1. SRI. UDAYAKUMAR S/O RAGHAVA SUVARNA AGED ABOUT YEARS R/AT BOLALA LIVIL MANGALURU, PRESENTLY R/AT BAJIGAR RECREATION ASSOCIATION DOOR NO.13-05-584/6 AND 8 GROUND FLOOR LINKING TOWER COMPLEX MANGALURU - 575 004.
2. SRI. HAREESH S/O KESHAVA AGED ABOUT 29 YHEARS R/AT MISKITH COMPOUND NEAR BOLURU KATTE MANGALURU - 575 004.
3. SRI. JAYARAM S/O VITTALDAS AGED ABOUT 40 YEARS R/AT DASARAMOOLE BELMA VILLAGE AND POST KONAJE, MANGALURU - 575 004.
4. SRI. ROSHAN S/O BHASKARA AGED ABOUT 38 YEARS R/AT RAMNAYAK COMPOUND NEAR JEPPU MARKET MANGALURU – 575 0004.
5. SRI. SUNIL S/O MOHAN DAS NAIKA AGED ABOUT 39 YEARS R/AT PARAMESHWARI SHETTY NILAYA B.H. CROSS ROAD MANGALURU - 575 004.
6. SRI. SURESH S/O GOPALA AGED ABOUT 31 YEARS R/AT NEAR MADYAR TEMPLE KOTEKARU POST NADARU VILLAGE MANGALURU - 575 004.
... PETITIONERS (BY SRI. VISHWAJITH SHETTY., ADVOCATE) AND:
STATE OF KARNATAKA MANGALURU NORTH POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU - 560 001.
... RESPONDENT (BY SRI. S. CHANDRASHEKARAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.4051/2016 BY THE COURT OF THE JMFC-II, MANGALORE D.K., REGISTERED FOR THE OFFECNE U/S 79,80 OF THE KARANATKA POLICE ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are assailing the proceedings initiated against them in CC.No.4051/2016 (Crime No.155/2016) for the offences punishable under Sections 79 & 80 of Karnataka Police Act, 1963 pending on the file of JMFC (II Court) Mangaluru, Dakshina Kannada District.
2. Short facts leading to filing of this petition are as follows:-
Case of the prosecution is that on 28.08.2016 at about 1.15 p.m., Police Inspector of Mangaluru North Police Station (complainant) received credible information that in Bazigar Recreation Club situated opposite to Lady Goshen Hospital, Mangaluru, five persons were playing video game which is a game of chance, by putting in stake money and were indulging in gambling. On receipt of said information and after obtaining permission from the jurisdictional Magistrate, a raid came to be conducted by apprehending petitioners and seized a sum of `24,250/- from them.
Hence, alleging that petitioners have committed offences punishable under Sections 79 and 80 of the Karnataka Police Act, charge sheet came to be filed after conducting investigation. The jurisdictional Court has taken cognizance of the offences alleged against petitioners and has issued process to petitioners/accused persons. Hence, for quashing of said proceedings, petitioners are before this Court.
3. It is the contention of Sri Vishwajith Shetty, learned counsel appearing for the petitioners that video game is 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 an 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 namely, 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 274, has been held that unless 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 came 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 was 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.”
5. In the light of aforesaid position of case law of which this Court is in complete agreement, when charge sheet material on record is examined, it would disclose that jurisdictional police on receiving credible information had conducted search of the premises of Bazigar Recreation Club, situated opposite to Lady Goshen Hospital, Mangalore on 28.08.2016 at about 1.15 p.m. and found that five persons were playing video games and it is specifically alleged by the prosecution that they had placed their bet and said gambling was being conducted by accused No.5 and they had seized cash of Rs.24,250/-. The police have arrived at a conclusion that accused persons had placed bet and it was gambling. However, no conclusive material is placed before the Court to establish that it is a game of chance and not a game of skill.
6. It is needless to state that if any skill is required for purpose of playing a particular game, in such an eventuality, such game cannot be equated to gambling. In the absence of any such explanation or material being placed to establish gambling and when the police themselves are said to be still obtaining credible information from experts on this line, it would be far fetched for the police to call upon the trial court to draw an inference that such video games should be construed as a game of chance by drawing an inference. Same being too far fetched argument, it would not result in conviction of the accused, even for the argument sake, allegations made in the complaint or charge sheet material were to remain uncontroverted, it would not end in conviction of the accused. As such, continuation of proceedings against petitioners would be of no use and it would not serve any purpose or in other words, it would be a waste of precious judicial time.
Hence, I proceed to pass the following:
ORDER (i) Criminal Petition is hereby allowed.
(ii) Proceedings pending against petitioner in C.C.No.4051/2016 registered for the offences punishable under Sections 79 & 80 of Karnataka Police Act, 1963 is hereby quashed and petitioners are acquitted of the said offences.
In view of allowing of this petition, I.A.No.1/2017 for stay does not survive for consideration. Accordingly, it is dismissed.
SD/-
JUDGE RU