Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1494 (HP)

Suraj Bhandari v. State Of H. P.

2018-08-10

SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, A.C.J. - Concurrently, the Courts below, for the reasons so assigned, similar in nature, have convicted accused Sukhdev for having committed an offence punishable under the provisions of Sections 4 of the Public Gambling Act, 1867 (hereinafter referred to as the Act) and accused Naresh Kumar, Mohan Lal, Suraj Bhandari and Tilak Raj for having committed offences punishable under the provisions of Sections 4 and 13 of the Act. Trial Court sentenced all of them to undergo simple imprisonment for a period of 20 days for having committed an offence punishable under the provisions of Section 4 of the Act. Additionally, accused Naresh Kumar, Mohan Lal, Suraj Bhandari and Tilak Raj were also sentenced to undergo simple imprisonment for a period of 20 days for having committed an offence punishable under the provisions of Section 13 of the Act. 2. The Lower Appellate Court, while upholding the judgment of conviction and sentence, has reduced the sentence from imprisonment to that of fine of Rs. 100/- under Section 4 of the Act and Rs. 50/- under Section 13 of the Act. 3. Since common questions of fact and law are involved, these revision petitions, also arising out of common judgment, are being disposed of vide common judgment. 4. On 30.05.2010, FIR No.40 of 2010 (Ex.PW.1/A) was registered at Police Station, Kotkhai, District Shimla, H.P., under the provisions of Sections 3, 4 and 13 of the Act, against all the accused (petitioners herein), namely, Sukhdev Singh, Tilak Raj @ Rajeev, Naresh Kumar, Suraj Bhandari and Mohan Lal. 5. Allegedly petitioners were indulging into an illegal act of Gambling i.e. they were playing cards and were caught red-handed by the police party, which was on a patrol duty, at bus-stand Kotkhai. Head Constable Bhagirath (PW.5), C. Pradeep Kumar (PW.3), C. Sansar Chand (PW.2) and another police official Rajinder Singh, were present at that time. 6. As per contents of the FIR, petitioners Sukhdev Singh, Tilak Raj @ Rajeev, Naresh Kumar, Suraj Bhandari and Mohan Lal were gambling inside the booking office of HRTC at the bus-stand, from where gambling money i.e. Rs. 8200/- was also recovered from the possession of the accused. Ruka (Ex.PW.5/B), as prepared by HC Bhagirath (PW.5) was sent through C.Pradeep Kumar (PW.3), which led to the registration of FIR. 8200/- was also recovered from the possession of the accused. Ruka (Ex.PW.5/B), as prepared by HC Bhagirath (PW.5) was sent through C.Pradeep Kumar (PW.3), which led to the registration of FIR. The case property i.e. playing cards (Ex.P-1 Ex.P-52) were kept in a packet (Ex.PA) and sealed with seal impression ''A''. They were taken into possession vide memo (Ex.PW.2/A), in the presence of police officials C.Sansar Chand (PW.2) and C.Sansar Chand (PW.3). Whereafter, case property was deposited in the malkhana and entry made in the register (Ex.PW.4/A). 7. With the prosecution having examined as many as five witnesses, statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. 8. Finding the prosecution version to have been duly proven through the testimonies of police officials, the trial Court convicted the accused on all counts, in terms of judgment dated 31.01.2013, passed in Criminal Case No.154-3 of 2010, titled as State of H.P. vs. Sukhdev Singh & others, which finding stands affirmed by the Lower Appellate Court, vide judgment dated 27.02.2017, passed in Cr.Appeal No.75-T/10 of 2013, titled as Sukhdev Singh & others vs. State of H.P. 9. Mr.Anoop Chitkara, learned counsel, ably assisted by Ms.Sheetal Vyas, Advocate, has raised three issues of vital importance, germane to the controversy in issue and go to the root of the matter. It vitiates the trial. 10. It is not in dispute that the place where the petitioners were allegedly indulging in the act of gambling was a booking office of HRTC. It was an enclosed place having a door, which was bolted from inside. Section 5 of the Act, prescribes that if any Magistrate of a District/officer invested with full powers of a Magistate/District Superintendent of Police/or by his warrant any authorized officer of the police, not below such rank as the State Government shall appoint in this behalf, enter the house/walled enclose, room or place. As per the notification dated 24.08.1965, issued by the Home Department, Government of Himachal Pradesh under the Act, only a police officer not below the rank of Assistant Sub Inspector is authorized to discharge such functions. 11. Now it is not the case of Head Constable Bhagirath (PW.5) that he was holding the said requisite minimum rank, enabling him, to be authorized, for discharging any function under the Act. Also, and in any event, he was not having such authorization under the Act. 11. Now it is not the case of Head Constable Bhagirath (PW.5) that he was holding the said requisite minimum rank, enabling him, to be authorized, for discharging any function under the Act. Also, and in any event, he was not having such authorization under the Act. Further, it is not his case that immediately after stumbling upon the alleged activity of gambling, he informed the authorized officer, who in any case has to be at least an officer having the rank of Deputy Superintendent of Police and that the said officer reached the spot to conduct the investigation. 12. Thus, the investigation carried out and the evidence led cannot be said to be in consonance with the provisions of Act and as such vitiates the trial. 13. There is yet another reason for finding fault with the prosecution investigation. Mr.Anoop Chitkara, learned counsel, invites attention of this Court to the amendment inserted by the State of Himachal Pradesh in the Statute in issue itself and that being Section 18, so inserted vide notification dated 24.08.1965, which reads as under:- "18. Exemption of games of mere skill.- Nothing in this Act shall apply to any game of mere skill wherever played." ( Him.Pra.Act 30 of 1976, S.9.) 14. Now what is game of skill stands settled by the Apex Court in The State of A.P. vs. K. Satyanarayana and others , (1968) AIR SC 825, relevant portion whereof is reproduced as under:- "12. .......The game of Rummy is not a game entirely of chance like the ''three-card'' game mentioned in the Madras case to which we were referred. The ''threecard'' game which goes under different names such as ''flush'', ''brag'' etc. is a game of pure chance. Rummy on the other hand, requires certain amount of skill because the fall of the cards has to be memorized and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of Rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge. We cannot, therefore, say that the game of Rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out there is an element of chance because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that Rummy is a game of chance and there is no skill involved in it. Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of Rummy or any other game played for stakes, the offence may be brought home. In this case, these elements are missing and therefore we think that the High Court was right in accepting the reference as it did." 15. In the instant case, it stands suggested by the petitioners to the witnesses that only four persons playing the cards were actually playing a game of Rummy. Also it cannot be said to have been proven, much less conclusively established, through the testimonies of the police officials, that the money recovered was actually a stake in the game. 16. Thus, for all the aforesaid reasons, since all these aspects were not considered by the Courts below, as such, at this point in time, for incident pertains to the year, 2010, considering the nature of the offence and the date to which it relates, the impugned judgment dated 31.01.2013, passed in Criminal Case No.154-3 of 2010, titled as State of H.P. vs. Sukhdev Singh & others, as modified by the Lower Appellate Court, vide judgment dated 27.02.2017, passed in Cr.Appeal No.75-T/10 of 2013, titled as Sukhdev Singh & others vs. State of H.P., are quashed and set aside. Accused are acquitted. Bail bonds furnished by them are directed to be discharged. Amount of fine, if deposited by the convicts, be refunded to them. Petitions stand disposed of, so also pending application(s), if any.