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2019 DIGILAW 557 (KAR)

Rajesh v. State Of Karnataka

2019-03-01

ARAVIND KUMAR

body2019
JUDGMENT : Aravind Kumar, J. - The petitioners are arraigned as accused Nos.1 to 65 in C.C.No.1205/2017 on the file of Principal Civil Judge (Sr.Dn.) and CJM Court, Chitradurga District, Chitradurga for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963. 2. On careful perusal of the entire materials on record, it is seen that the Respondent-Police on 08.07.2017 have raided Harsha Sports Paradise Club situated at NH-4 Road, Chitradurga near Mandara Bar and Restaurant. On credible information that, some people were playing a game called "Andar-Baahar", which is alleged to be a pure game of chance. The Police have raided the said Club and seized certain articles and also arrested some persons. In that context, the petitioners were also arraigned as accused persons. After investigation, the Police has submitted the charge-sheet in C.C.No.1205/2017. 3. Two questions have been raised before this Court that, the said Police have no jurisdiction to investigate the offence under the Karnataka Police Act, which are non-cognizable in nature, without the orders of the jurisdictional Magistrate as contemplated under section 155(2) of Cr.P.C., 1973 Secondly, it is contended that throughout the charge-sheet, nowhere it is explained as to how the "Andar-Baahar" game is played and whether it is a pure game of chance or skill is required to play that game. If any skill is required, it cannot be called as gambling. In such an event, the Police cannot file any charge-sheet for the offences under Sections 79 and 80 of the Karnataka Police Act. 4. This Court, in a decision reported in 2014 (4) KCCR 3355 (Moin Basha Kurnooli vs. The State of Karnataka by Cowl Bazaar Police) has in detail dealt with the above said provisions and categorically held that the offence under the Police Act are categorized as non-cognizable offence as per the Schedule - II of the Code of Criminal Procedure and Police have no jurisdiction to invoke any non-cognizable offence without the permission of the Jurisdictional Magistrate under Section 155(2) of the Karnataka Police Act. It is also held that if any such police report is filed under section 173 of Cr.P.C., 1973 the same cannot even be treated as a private complaint under section 2(d) of Cr.P.C., 1973 5. It is also held that if any such police report is filed under section 173 of Cr.P.C., 1973 the same cannot even be treated as a private complaint under section 2(d) of Cr.P.C., 1973 5. The learned HCGP fairly submitted, in so far as this case is concerned, that the Police have not obtained any permission from the Magistrate to investigate the said offences and to file charge-sheet. Therefore, on that ground, these proceedings are liable to be quashed. 6. The second point is also noteworthy here, because in order to attract Sections 79 and 80, the people should play gambling. This Court in a decision reported in 1977 KLJ 793 (E. Eranna and others vs. The State of Karnataka), has held that "the charge against the accused were that they were found playing game of cads knows as "Andar Baahar" in a club and that "Andar Baahar" is a game of chance. Held, Unless the prosecution proves how the game "Andar Baahar" is played and in what manner the bettings are recorded, it could not be inferred that it was a pure and simple game of chance and not a game of skill. The Court has acquitted those accused persons. 7. On translating the entire charge-sheet papers including the statement of witnesses, there is no explanation in such a manner as to what is meant by the game by name "Andar-Baahar" and how it is played and how the bettings are rewarded by the parties, etc., In the absence of elucidation of such facts in the charge-sheet, in my opinion, on the above said ground also, the charge-sheet requires to be quashed and cognizance thereunder by the Magistrate also requires to be quashed. 8. Hence, for the above said reasons, the following order is passed: i) Petition is allowed. ii) Consequently, C.C.No.1205 of 2017 arising out of Crime No.54 of 2017, which is pending on the file of Principal Civil Judge (Sr.Dn.) and CJM Court, Chitradurga District, Chitradurga for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 and all the further proceedings thereunder, in so far as the petitioners are concerned are hereby quashed.