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2017 DIGILAW 493 (JK)

Kuldeep Singh v. State of J&K

2017-07-28

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner has filed the instant petition under Section 561-A of the Code of Criminal Procedure seeking quashment of complaint filed by the police through SHO, Police Station, Bakshi Nagar, Jammu under Section 13 of the Public Gambling Act (for short, the Act) against him pending before the court of learned CJM, Jammu. 2. In the petition it has been stated that petitioner has farmhouse/residential complex consisting of his Go-down, office and residence which is situated in Top Sherkhania consisting of more than 40 kanals of land with 8 feet high boundary wall. It is submitted that on October 24, 2005, while the petitioner was sitting with his friends and planning for his business tour to Srinagar for the next day, for which, he had also booked the air tickets, but the police party led by Sanjay Kotwal S.D.P.O Bakshi Nagar, Jammu trespassed into the premises of the petitioner without any justification or reasonable excuse along with SHO Sajjad Khan of the same police station. It is further submitted that they started threatening the petitioner and his friends and even slapped them. It is submitted that as the aforesaid, petitioner was planning to go to Srinagar for a business trip, he had withdrawn Rs.1,50,000/- from J&K Bank on 24th day of occurrence and as his office is also situated in the same complex so he was having cash to the tune of Rs.1,75,096/- in his office. That said money was looted by the police. It is submitted that in order to hide this illegal act the police filed a false and frivolous complaint against the petitioner and his friends under Section 13 of the Act. That said money was looted by the police. It is submitted that in order to hide this illegal act the police filed a false and frivolous complaint against the petitioner and his friends under Section 13 of the Act. The grounds which clearly show that the police have abused the powers given to them to safeguard the citizens and the grounds on which the present petition under Section 561-A Cr.P.C for quashing the complaint filed by the police against the petitioner is challenged on following grounds : a. that as above said complainant has farmhouse/residential complex of his Godown, office and residence which is situated in Top Sherkhania over 40 kanals of land with 8 feet high boundary wall and he is one of the highest income tax payee of the State, the police has accused the petitioner of Gambling near his farmhouse and not in his farm house at around 10.30 in the month of October it is higher improbable on the fact of it that why would a person having a farmhouse of 40 kanals sits outside his form house without any reason even if he has to gamble when he has all the facilities available in his farmhouse. b. that another hilarious thing which proves that the police case is absolutely false and frivolous is that seizure memos shows that 6 candles, one electric bulb with holder and 10 meter electric wire which were used by the petitioner and his friends while gambling, was also seized by the police. It is highly improbable and does not perceive that person having farm house, will play gabling outside farm house. c. that the false and baseless story has been made ,which is an afterthought and well planned ; because after looting the money from the petitioner and his friends when police was planning to file a false and frivolous complaint against the petitioner it was sure to fail as a farmhouse is not a Public Place and even if a person is gambling in his house or farmhouse or shop or any place which is not a public place the provisions of the Public Gambling Act does not apply, so they intentionally mentioned that petitioner was sitting near his form house and gambling. d. That it is clearly written in Raznamcha (daily dairy) that police team came back to Police Station at 23.20 and the police team reached Top Sherkhania at 10 p.m. It is impossible for the police to give detailed report about this incident at 23.20 to press so that it could be published in the news papers on the next date i.e. 25.10.2005. It is submitted that that the police had already passed information to the press even before their entering the farmhouse of the petitioner. It is scandalous and furnishes ample evidence for quashing the police complaint. e. That moreover the complaint is not maintainable on account of the fact that Public Gambling Act has not been extended to the area where the petitioner is alleged to have been gambling. Section 2 of the Act makes necessary to ‘extent all or any of the provisions of this Act, by a notification in the Government Gazette.’ That it is clear from the language of Section 2 of the Public Gambling Act that unless all or any section of the Act is made to extend to any city, town or suburb by making a public notification & then publishing it in the Government Gazette, action taken under any provision of the Act cannot be sustained for the want of any notification as required under Section 2 of the said Act. f. it is well settled principal of law that ‘strict adherence to its provisions is required when the Act is penal in nature’ and non-adherence to the provisions of section 2 of the Act is by itself shows that illegality and miscarriage of justice has taken place in this case, which is seriously prejudicial to the petitioner. 3. I have heard learned counsel for the parties and gone through the law. 4. Section 2 of Public Gambling Act reads as under:- “Power to extend Act The Government may, whenever it deems fit, extend, by a notification to be published in the Jammu and Kashmir Government Gazette, all or any of the sections of this Act to any city, town or suburb subject to the Government or administration, and in such notification define, for the purposes of this Act, the limits of such city, town or suburb, and from time to time, alter the limits so defined. From the date of any such extension, so much of any rule having the force of law which shall be in operation in the territories, to which such extension shall have been made, as shall be inconsistent with or repugnant to any section, so extended, shall cease to have effect in such territories. Any such extension, heretofore made under the provisions of the State Gambling Regulation 1961, shall be deemed to have been made under this Act. 5. Bare perusal of this section, it is evident that for extension of areas to which the Public Gambling Act would be applicable, Govt. of Jammu and Kashmir shall issue notification. Government has already issued various notifications under the authority of Section 2 of Act. One such notification read as under:- “Public Gambling Act Svt. 1977-Act extended to certain suburbs of Jammu city. Notification no. 1-L/1992 of 1935 dated 21st of Baisakh 1992/13th May, 1935, published in Government Gazette dated 10th Jeth 1992. The council has been pleased to order under the authority of section 2 of the Public Gambling Act No. XVIII of 1977, that all the provisions of Act be extended to the area lying between the Electric Power House and the Kothi occupied by Hon’ble the Chief Justice on the one side and extending right up to Talab Tillo on the other including both banks of the canal over a mile length either way.” 6. So bare perusal of this notification, it is evident that the provisions of this Act have been made applicable to both side of canal over a mile length either way. Tope-sherkhania area is admittedly falls on one side of canal and is near to canal. Whether it is within a mile length, this Court cannot decide in this petition under section 561-A Cr.P.C, it is for the trial court to decide the same. So this argument of counsel is not tenable. 7. Rest of pleas taken that petitioner has big farmhouse/residential complex of his Godown, office and residence, which is situated in Top Sherkhania over 40 kanals of land with 8 feet high boundary wall; that he is one of the highest income tax payee of the State; that the police has accused the petitioner of Gambling near his farmhouse and not in his farm house at around 10.30 in the month of October, are highly improbable. 8. 8. I have considered this aspect of the matter. These are factual aspects of the matter; in a petition u/s 561-A Cr.P.C, detail appreciation of evidence cannot be done. It is the domain of trial court to appreciate the factual matrix of the case. 9. Hence this petition is dismissed as it is without any merit. Petitioner is at liberty to take all pleas which he has raised in this petition before trial court. If after taking into consideration all facts of the case, trial court comes to the conclusion that petitioner was falsely involved in the case, than trial court shall direct police for registration of criminal case against SDPO and SHO concern, because a citizen cannot be involved in criminal case by illegal and malicious action of police. 10. All MPs are dismissed. Copy of order be sent to concerned Court.