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2006 DIGILAW 350 (JHR)

Manish Kumar Gupta v. State of Jharkhand

2006-04-10

AMARESHWAR SAHAY

body2006
ORDER Amareshwar Sahay, J. 1. Heard Mr. Jai Prakash, learned counsel appearing for the petitioners and Mr. Mishra, learned G.P.-II. 2. With the consent of the parties, this application is being disposed of at this stage itself. 3. In this application the petitioners have prayed to quash the order dated 24-5-2003, passed by the Judicial Magistrate, 1st Class, Dhanbad refusing to discharge the petitioners and also for quashing of the entire criminal prosecution against them for the alleged commission of the offence under Section 290/294-A of the Indian Penal Code and Section 3/4 of Bihar Ban on Lotteries Act, 1993. It is stated that the petitioners were doing the business of selling lottery tickets of the State of Sikkim and Bhutan but against them an FIR was lodged being Jharia PS Case No. 244/2002 for the alleged commission of the aforesaid offences on the ground that there was ban on selling of the lottery tickets of the other State and, therefore, the petitioners, who were doing the business of selling lottery tickets of other States, committed the offences under Sections 290 and 294-A of the Indian Penal Code and under Section 3/4 of Bihar Ban on Lotteries Act, 1993. 4. The petitioner, by filing WP (C) No. 6063/2002 before this Court did challenge the action of the respondents in restraining to do the said business and prayed for issuance of Writ of Mandamus directing the State Government not to interfere with the business of the petitioner of selling of the lottery tickets organized by the other States on the ground that the law, which was enacted by the State of Bihar in the year 1993 namely, Bihar Ban on Lotteries Act, 1993 was struck down by the Patna High Court in the case of Iqbal Chand Khurana and Anr. v. State of Bihar and Ors. reported in 1994 (1) BLJR 702 and, therefore, doing the business of selling lottery tickets of the other States cant be said to be an offence. 5. Relying on the said decision of the Patna High Court, a Bench of this Court allowed the aforesaid writ petition filed by the petitioners and issued a Writ of Mandamus directing the respondents not to interfere with the business of the petitioners of sale of the lottery tickets organized by the other States. 6. 5. Relying on the said decision of the Patna High Court, a Bench of this Court allowed the aforesaid writ petition filed by the petitioners and issued a Writ of Mandamus directing the respondents not to interfere with the business of the petitioners of sale of the lottery tickets organized by the other States. 6. Now by filing this writ application the petitioners have challenged the entire criminal prosecution initiated against them including that of the order of the Court below dated 24-5-2003 refusing to discharge the petitioners, on the ground that since this Court has already held that the Government of Jharkhand has no authority under the law to restrain the petitioners in doing the business of selling of lottery tickets of the other States and, therefore, their criminal prosecution for selling of the lottery tickets of the other States is absolutely without jurisdiction and, therefore, continuance of the prosecution would certainly be an abuse of the process of the Court, therefore the prosecution is liable to be quashed. 7. Mr. Mishra, learned G.P.-II very fairly submitted that in view of the judgment passed by this Court in WP (C) No. 6063/2002, filed by the petitioners, the prosecution of the petitioners for selling of the lottery tickets of the other States in the State of Jharkhand cannot be said to be an offence since the Statute itself which prohibited the business of selling lottery tickets of the other States was struck down by the Patna High Court. 8. Accordingly, this writ application is allowed. The order dated 24/5/2003, passed by the Judicial Magistrate, 1st Class, Dhanbad refusing to discharge the petitioners is hereby set aside. Consequently, the entire criminal prosecution against the petitioners being G.R. Case No. 1991/2002 arising out of Jharia P.S. Case No. 244/2002 is hereby quashed. Application allowed.