Madras High Court
Kalaimagal Recreation Club vs The Commissioner Of Police on 27 April, 2009
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/04/2009 Coram The HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.2677 of 2009 and M.P.(MD).No.1 of 2009 Kalaimagal Recreation Club, (Regn.No.9/08) Rep. by its Secretary, M.Mariappan ... Petitioner vs. 1.The Commissioner of Police, Tirunelveli City Police, Kokkirakulam, Tirunelveli-627 009. 2.The Inspector of Police, Town Police Station, Tirunelveli Town, Tirunelveli District. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, forbearing the respondents herein and their subordinates officials from in any manner interfering with the rights of the members of the petitioner club namely Kalaimagal Recreation Club to play the game of rummy with stakes and other indoor games in the premises of the petitioner club namely Kalaimagal Recreation Club situated at No.l1-D, Shenbagam Pillai Single Street, Tirunelveli Town, Tirunelveli District. !For Petitioner ... Mr.S.P.Maharajan ^For Respondents... Mr.D.Sasikumar Government Advocate ****** :ORDER
***** The petitioner is a Recreation Club registered as per the provisions of the Tamil Nadu Societies Registration Act.
2. The members of the petitioner club are from all walks of life and admission is not restricted to any caste or community. The petitioner has been running the club as per rules and regulations. For the welfare of the members of the club, they used to arrange both indoor and outdoor games, like Volleyball, shuttlecock, badminton, Kabadi and Tennis, etc. They also used to employee the trained coachers from different places for the purpose of giving physical and mental training to the members of the club.
3. Of late the second respondent police has been unnecessarily visiting the club premises and interfering in the normal functioning of the club. According to the petitioner, the second respondent has no authority to enter the premises of the club without any complaints. There were no illegal activities going on in the petitioner club and as such, the second respondent has no cause of action to enter the premises of the club and to interfere in the normal affairs of the club. In such circumstance, the petitioner has filed the writ petition for issuance of a Writ of Mandamus forbearing the respondents from interfering with the rights of the members of the club to play the game of rummy with stakes and other indoor games in the premises at Door No.11-D, Shenbagam Pillai Single Street, Tirunelveli Town, Tirunelveli District.
4. The second respondent has filed a counter-affidavit in answer to the averments as found mentioned in the affidavit filed in support of the writ petition. According to the second respondent, the club is located in an agricultural land belonging to the Thiruvavaduthurai Adheenam and it was leased to one Subbiah Kudumban. There was an act of encroachment at the instance of one Duraisamy and a dispute is now pending in Court between Thiruvavaduthurai Adheenam and the encroacher. It was only in the disputed land, the petitioner has established the club in a thatched shed and they are conducting gambling for gain, which is totally against the provisions of the Tamil Nadu Gaming Act and it attracts criminal prosecution. The second respondent has also denied the contention of the petitioner that they have been conducting only sports activities and there was nothing which involves the game of chance. According to the second respondent, so long as the petitioner conducts gambling with money and for gain, his premises had to be raided by the police.
5. The grievance of the petitioner is regarding the interference in the affairs of the club at the instance of the second respondent.
6. The petitioner club was entitled to conduct lawful activities in their premises. It was not permissible for the second respondent to deny the petitioner of its lawful activities. It was only in the event of the petitioner club permitting illegal activities, which involves money and an element of gambling, which would give a cause of action to the second respondent to enter the premises to ensure as to whether the club was used for a purpose other than for which it was registered. The petitioner was entitled to conduct its affairs in an orderly manner. It was the duty of the petitioner to keep the premises only for sports and arts purposes without permitting its members to engage in gambling and other illegal activities.
7. The Tamil Nadu Gaming Act, 1930 makes provision for punishment of gaming and the keeping of common gaming-houses in the State of Tamil Nadu. A common gaming-house is defined as a house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle or vessel. However, gaming does not include a lottery but includes wagering or betting. Section 4 of the Tamil Nadu Gaming Act, 1930 provides the penalty for opening the common gaming-house and Section 4(2) of the Tamil Nadu Gaming Act, 1930 makes the person found in any such house, room, tent, enclosure, vehicle, vessel or place used for the purpose of gaming on any of the objects shall be presumed, until the contrary is proved to have been there for the purpose of gaming on such object.
8. Since the Tamil Nadu Gaming Act, 1930 permits the entry of police in the premises alleged to be used for the purpose of gaming, a specified procedure was prescribed as per Section 5 of the Act, it is not possible for the police officers below the rank of a Deputy Superintendent of Police to enter the premises, unless there was an authorisation by a Judicial Officer not inferior to a Judicial Magistrate or any police officer not below the rank of a Deputy Superintendent of Police. It was only on the satisfaction of the Judicial Magistrate or the police officer not below the rank of a Deputy Superintendent of Police that a particular place is used as a common gaming-house, a warrant could be issued to a police officer not below the rank of a Sub-Inspector to enter the premises with such assistance and to arrest all persons found therein and to seize all instruments of gaming including money. Therefore, an inbuilt mechanism against police intervention in the matter has been provided in the Act itself. Section 13 makes the offence punishable under the Tamil Nadu Gaming Act, 1930, a cognizable offence and, therefore, it is possible for the police to arrest the accused without warrant. Similar provisions are contained in the Public Gambling Act, 1867 also.
9. According to the respondents, the petitioner's club was engaged in playing rummy for gain. However, the petitioner maintains that they were playing only rummy and it was only a game of skill.
10. The issue as to whether the game of rummy was only a game of chance or it involves an element of skill was considered by the Supreme Court in State of A.P. v. K.Satyanarayana [AIR 1968 SC 825] and it was observed thus:-
"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 'three card' 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 memorised 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. 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................... ......................."
11. The right of the petitioner to conduct the club and the authority of the second respondent to prevent the commission of a cognizable offence had to be balanced. The attempt should be to strike a balance between the right claimed by the petitioner and the authority of the second respondent to take action in the event of commission of an offence. The petitioner has to conduct the activities of the club only as permitted by law and there should be no attempt to allow the members of the club to conduct gambling.
12. While considering the provisions of the Public Gambling Act, 1867, a Division Bench of this Court in Manakadu Elainger Nala Sports, Narpani Mandram v. State of Tamil Nadu [2005(1) CTC 245] held that playing of games of skill, like carom and chess does not attract the provisions of the Public Gambling Act, 1867 and observed thus:-
"6. This is a free and democratic country. All citizens are free to do whatever they like unless prohibited by law. Hence unless the respondents show which law has been violated for charging money by the Club from the persons who go to the Club for playing Carrom and Chess, the activity cannot be prohibited. When it is claimed that some act is illegal, the persons making such allegation must show which specific law is being violated. Merely making general allegation that the activity is illegal without specifying which law has been violated, is neither here nor there.
7. It is alleged by the respondents that the Public Gambling Act, 1867 is being violated. However Section 12 of the said Act says:
"Nothing in the foregoing provisions of this Act contained shall be held to apply to any game of mere skill wherever played."
8. Carrom and Chess certainly require skill and hence in view of Section 12, the Act itself has no application."
13. It is appropriate to quote the observation of the Constitutional Bench in Krishnachandra v. State of Madhya Pradesh [AIR 1965 SC 307], which reads thus:-
"10. Considering the fact that gambling is an evil and it is rampant, that gaming houses flourish as profitable business and that detection of gambling is extremely difficult, the law to rout out gambling cannot but be in the public interest. Such a law must of necessity provide for special procedure but so long as it is not arbitrary and contains adequate safeguards it cannot be successfully assailed..................................................."
14. Therefore, the petitioner has to conduct the affairs of the club in an orderly and lawful manner without violating the provisions of the Tamil Nadu Gaming Act, 1930 as well as the Public Gambling Act, 1867 and the other penal acts and in case the petitioner engages only in lawful activities, there would be no cause of action for the second respondent to take action against the members of the petitioner club.
15. Similar to the present Writ Petition, large number of writ petitions have been filed before this Court alleging harassment at the instance of the police in the lawful activities of the club and other recreational centres and as such, I am inclined to issue the following directions:-
(i) The petitioner and the members of the club are entitled to carry on lawful activities within their premises and there should not be any interference from the police authorities, so long as their activities are not in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930;
(ii) In normal circumstances, there should be no interference in the lawful functioning of the clubs by the police. It is not permissible for the police to enter the club premises as a routine measure, so long as the clubs are functioning within the frame work of law;
(iii) If the police authorities have specific information or reasonable doubt that the activities carried on by the club or its members are not in accordance with law or they indulge in unlawful activities in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930 or any other enactment, it would be open to them, after recording reasons in the General Diary maintained in the police station, to proceed to enter the club premises, conduct investigation, interrogate those who involve themselves in such activities and take appropriate action on merits and as per law;
(iv) While exercising the powers conferred on the police authorities, they should follow the mandatory provision as contained in Section 5 of the Tamil Nadu Gaming Act, 1930/Public Gambling Act, 1867
(v) It is always open to the club or its members to challenge the action taken by the police, if it was not in accordance with law;
(vi) In case the police authorities were of the opinion that a situation has arisen to suspend the operation of the club in exercise of the powers conferred, they have to issue an order in writing. When there is no authority granted to the police to issue an order of suspension orally, they are not entitled to pass such oral orders; and
(vii) Before passing orders for the purpose of closure of the club, in exercise of the powers conferred on the authorities, they should follow the principles of natural justice. The club should be given an opportunity to submit their objections and if so desired, a further opportunity of personal hearing should also be given.
16. The Writ Petition is disposed of with the above directions. Consequently, the connected miscellaneous petition is closed. No costs.
SML To
1.The Commissioner of Police, Tirunelveli City Police, Kokkirakulam, Tirunelveli-627 009.
2.The Inspector of Police, Town Police Station, Tirunelveli Town, Tirunelveli District.