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2021 DIGILAW 569 (GUJ)

BHARATBHAI RUPAJI DABHI v. STATE OF GUJARAT

2021-07-12

SONIA GOKANI

body2021
JUDGMENT : 1. Both these applications are for quashment of the FIR under Section 482 of the Code of Criminal Procedure being I-C.R.No.3053 of 2015 registered on 19.04.2015 at Shahpur Police Station, Ahmedabad (Criminal Misc. Application No.13695 of 2015) and another complaint being II-C.R.No.3063 of 2015 at DCB Police Station dated 04.06.2015 (Criminal Misc. Application No.13698 of 2015). The applicants have been allegedly involved in the offence punishable under Sections 4, 5 and 5 (A) of the Bombay Prevention of Gambling Act. Both the matters since involve the same set of accused and question of law being identical, they are being decided by a common judgment. 2. In the Criminal Misc. Application No.13695 of 2015 prayers prayed for are as follow: “12… (A) Your Lordships may be pleased to admit and allow this application. (B) Your Lordships may be pleased to quash and set aside the impugned complaint being II-C.R.No.3053 of 2015 dated 19.04.2015 registered at Shahpur Police Station, Ahmedabad and further proceedings. (C) During the pendency and till final disposal of this application, Your Lordships may be pleased to stay the further proceeding and investigation of the impugned complaint being II-C.R.No.3053 of 2015 dated 19.04.2015 registered at Shahpur Police Station, Ahmedabad and restrain the authority from taking any action against the applicant in pursuance of the impugned complaint. (D) Any other relief deemed just and proper may please be granted in the interest of justice.” 2.1 In the Criminal Misc. Application No.13698 of 2015 prayers prayed for are as follow: “12… (A)Your Lordships may be pleased to admit and allow this application. (B)Your Lordships may be pleased to quash and set aside the impugned complaint being II-C.R.No.3063 of 2015 dated 04.06.2015 registered at DCB Police Station, Ahmedabad and further proceedings. (C) During the pendency and till final disposal of this application, Your Lordships may be pleased to stay the further proceeding and investigation of the impugned complaint being II-C.R.No.3063 of 2015 dated 04.06.2015 registered at DCB Police Station, Ahmedabad and restrain the authority from taking any action against the applicant in pursuance of the impugned complaint. (D) Any other relief deemed just and proper may please be granted in the interest of justice.” 3. It is the case of the applicant that Paresh Bharatbhai Dabhi, son of the applicant is the director of Keshar Gymkhana, Private Limited. It is the company registered under the Companies Act on 03.01.2011. (D) Any other relief deemed just and proper may please be granted in the interest of justice.” 3. It is the case of the applicant that Paresh Bharatbhai Dabhi, son of the applicant is the director of Keshar Gymkhana, Private Limited. It is the company registered under the Companies Act on 03.01.2011. One property was acquired by the company in Shahpur area on lease and the company started the club for its members known as Keshar Gymkhana. There are 3000 members attached to this club and 10 employees are engaged for the purpose of administration of the club. 3.1 It is the case of the applicant that the club has run as per the rules and regulations and under the supervision of the those, who are at the helm of the affairs. There are about 10 CCTV cameras installed in the premise so as to avoid any untoward incident. The club also has made a provision for entertainment for its members and no illegal activity is being carried on. 3.2 The officers of Shahpur Police Station also regularly takes surprise visit of club and after making necessary inquiry has issued the certificate in the form of officer’s endorsement in the book maintained by the club. 3.3 In the month of April, 2015, the Police Inspector of Shahpur Police Station visited the club premise on 15.04.2015 and 16.06.2015. After making the inquiry, it has also issued the certificate as is required under the Law. However, the Police Officers during this visit had not properly behaved with the members and the staff members of the club. They also gave threat to the staff members and had threatened them of the false case. 3.4 On 19.04.2015, a raid was carried out all of a sudden by the police officers of Shahpur Police Station and a complaint being II-C.R.No.3053 of 2015 has been filed against the present applicant, who is the father of the director of the company alleging that some of the person in the premise were gambling masquerading the same as playing the card game of rummy. 08 persons of the staff were arrested and the police had shown to have recovered Rs.1,78,320 from one Piyushbhai Dabhi, who is the relative of the applicant and residing in the very premise since many years. 08 persons of the staff were arrested and the police had shown to have recovered Rs.1,78,320 from one Piyushbhai Dabhi, who is the relative of the applicant and residing in the very premise since many years. 3.5 An application was moved by the son of the present applicant on 23.04.2015 to the Police Officer of Shahpur Police Station to provide the recording of CCTV camera. He also made a representation to the Police Commissioner of Ahmedabad and to the Director General of Police so also to the Secretary, Home Department on 26.04.2015 and requested to take appropriate actions to stop the harassment of the police officials. 3.6 As a counter blast, the Crime Branch had raided the club premise on 04.06.2015 and filed another complaint being IIC. R.No.3063 of 2015 at DCB Police Station for the alleged offences punishable under Sections 4, 5 and 5(A) of the Bombay Prevention of Gambling Act, 1987. Both, the applicant and his son had been arrested by the police officials of DCB Police Station. It is alleged that Mr.Paresh Dabhi was brutally beaten by the police officials of the DCB Police Station. He also had to take the medical treatment on 05.06.2015. 3.7 It is the case of the applicants that this illegal action is an act of harassment and the malicious prosecution since the game of rummy is not a prohibited activity. Some of the persons, who were present needed to file the writ petition before this Court, where the Court had directed the authorities not to interfere with the game of rummy being played by the members and their guests. One of such order is sought to be relied upon as passed by this Court (Coram:C.K.Buch, J.) in Special Civil Application No.16710 of 2003 on 24.12.2003. It is, therefore, urged that the lodgment of the complaint is nothing but a misuse of powers and abuse of process of law. The second complaint has been filed by the DCB Police Station since the son of the applicant made representation against the illegal action of the police officers. 3.8 Under the circumstances, being aggrieved and dissatisfied with the complaint being II-C.R.No.3053 of 2015 registered with Shahpur Police Station on 19.04.2015 and II-C.R.No.3063 of 2015 registered with DCB Police Station, Ahmedabad are sought to be quashed. 4. 3.8 Under the circumstances, being aggrieved and dissatisfied with the complaint being II-C.R.No.3053 of 2015 registered with Shahpur Police Station on 19.04.2015 and II-C.R.No.3063 of 2015 registered with DCB Police Station, Ahmedabad are sought to be quashed. 4. This Court issued the Rule in the month of July, 2015 and since the applicant was already on bail at the relevant point of time, no further order was passed. 5. Learned advocate, Mr.Vikram Thakore appearing with learned advocate, Mr.Natvar Bharwad has strenuously urged before this Court that both these FIRs are nothing but the result of the harassment and illegal actions on the part of the police officials. He has urged that Secretary, Home Department has also been requested to take appropriate steps against the police officers for initiating such actions as counter blast. 5.1 It is further his say that from the year 2012 the police personnel were regularly visiting the club and after making the inquiry everything was found to be going on as per the rules and regulations. The complaint being a mere malicious prosecution, the Court needs to interfere and quash the same. He has heavily relied upon the decision of the Apex Court rendered in case of State of Andhra Pradesh vs. K.Satyanarayana, reported in AIR 1968 SC 825 to urge that game of rummy involves substantial amount of skill though there is existence of luck formula, the skill involved in the game predominant toward the luck and therefore, when the game of rummy is not prohibited under the Gambling Act, no offence under the said Act can be said to have been committed by the applicant. 5.2 It is further his say that the CCTV cameras have also been settled to watch the activities of the staff members and the officers of the Shahpur Police Station are the regular visitors and therefore, nothing has been done contrary to rules and regulations, the undesired FIR would need to be quashed. 6. Learned APP, Ms.Jirga Jhaveri has severely and strongly resisted quashment of the FIRs. It is further her say that the decision of the Apex Court rendered in case of State of Andhra Pradesh vs. K.Satyanarayana cannot be applied without allowing the prosecution the opportunity of adducing its evidence. 6. Learned APP, Ms.Jirga Jhaveri has severely and strongly resisted quashment of the FIRs. It is further her say that the decision of the Apex Court rendered in case of State of Andhra Pradesh vs. K.Satyanarayana cannot be applied without allowing the prosecution the opportunity of adducing its evidence. If eventually on the basis of evidence, the applicants fall into the criteria which has been laid down by the Apex Court, the trial Court concerned surely be authorized to dismiss the complaint. However, without availing such opportunity, the Court cannot intervene and this will unnecessarily embolden. She has also urged this Court that there is a voluminous evidence collected by the police to establish that the club is facilitating the gambling and many of the members visits this place only with a view to gamble. 7. Having heard learned advocates on both the sides and having noticed the material on the record, coupled with the panchnama and the details so far furnished of the raid, this Court is of the opinion that without allowing the prosecution to adduce the evidence oral as well as documentary, it would not be appropriate for the Court to quash and set aside both these complaints. 7.1 The ratio laid down by the Apex Court in case of State of Andhra Pradesh vs.K.Satyanarayana (Supra) stating that the game of rummy involves substantial skills although there is an existence of luck, shall need to be first tested at the touchstone of the material which may have been collected during the raid and in abstract this ration cannot apply to the facts. The decision of Coordinate Bench as is sought to be pressed into service will not be necessary to be discussed in wake of the clear ratio on the part of the Apex Court. It will be prematured to terminate the prosecution initiated due to the action on raid on the part of Shahpur Police Station and DCB Police Station. The decision of Coordinate Bench as is sought to be pressed into service will not be necessary to be discussed in wake of the clear ratio on the part of the Apex Court. It will be prematured to terminate the prosecution initiated due to the action on raid on the part of Shahpur Police Station and DCB Police Station. 7.2 Apt would be to refer to the decision of the Apex Court in relation to the quashment of the FIR rendered in case of Ravindra Kumar Madhanlal Goenka and another vs. Rugmini Ram Raghav Spinners Private Limited reported in 2009 (11) SCC 529 where the Court has held that while entertaining the petition under Section 482 of the Code of Criminal Procedure the material furnished by the defence cannot be looked into, which shall need to be entertained only at the time of trial. If there is a prima facie material available, the quashing of the criminal proceedings cannot be entertained. Investigating Agency must have a freedom to inquire into the entire gamut of the allegation and to reach to the conclusion of its own. Preamption of such investigation would be justified only in the very extreme case. 7.3 This not being such a case, the Court does not deem it appropriate to entertain. Since the matter needs to go for the trial, the Court desist from giving the elaborate reasons. 8. Resultantly, both these applications are dismissed. If the investigation is not over, the Investigating Officer shall expedite and complete the process within a period of eight weeks from the date of receipt of a copy of this order. If the investigation is already over, the trial Court shall expedite and complete both the trials within period of six months from the date of receipt of a copy of this order. The applicants shall cooperate with the Investigating Officer. None of the findings and observations made here shall prejudice the rights of the parties. The trial Court shall decide both the matters on its merits without being influenced by the earlier proceedings.