Karnataka High Court
Sri Bhagyaraj vs Secretary Home Affairs on 26 October, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.51258 OF 2017 (GM-POL)
BETWEEN:
SRI BHAGYARAJ
S/O RAMESH POOJARI,
AGED ABOUT 24 YEARS
NO.15, BASEMENT,
CUNNINGHAM ROAD,
BENGALURU-560052
... PETITIONER
(BY SRI: S BALAKRISHNAN, ADVOCATE)
AND
1. SECRETARY HOME AFFAIRS
VIDHANA SOUDHA,
BENGALURU-01
2. COMMISSIONER OF POLICE
INFANTRY ROAD,
BENGALURU-560 001
3. DEPUTY COMMISSIONER OF POLICE
BENGALURU WEST
BENGALURU-560 102
4. SUB-INSPECTOR OF POLICE
KORAMANGALA POLICE STATION,
2
BANGALORE-560023
5. SRI. RAMESH RAO
FATHER NAME NOT KNOWN,
AGED ABOUT 45 YEARS
POLICE INSPECTOR,
CCB SPECIAL ENQUIRY UNIT,
BENGALURU-560 002
... RESPONDENTS
(BY SRI: S.RACHAIAH, HCGP FOR R1-R4
R5-SERVED-UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF CONSTITUTION READ WITH SECTION 482 OF CRPC
PRAYING TO QUASH THE CASE REGISTERED IN FIR
NO.106/2017 DTD:26.2.2017 ON THE FILE OF KORAMANGALA
POLICE STATION. DIRECT THE COMMISSIONER OF POLICE/R-2
TO HOLD DEPARTMENTAL ENQUIRY AS PER THE SUPREME
COURT GUIDELINES AGAINST THE R-5 AND TO TAKE ACTIONS
AS PER LAW. RESTRAINING THE RESPONDENTS NOT TO
INTERVENE WITH THE SMOOTH FUNCTIONING OF THE
RECREATION CLUB- 'THE MEMBERS LONGUE'. DECLARE POKER
PLAYED IN A COMPUTERIZED ELECTRONIC MACHINE [VIDEO
GAMES] FANTASTIC 3 PLAYED WITH 3 DICE AND 6 COLOUR PIN
A GAME OF SKILL. DIRECT R-5 TO PAY DAMAGES TO THE
PETITIONER AND OTHERS WHO SUFFERED WRONGFUL
CONFINEMENT ON ACCOUNT OF ILLEGAL ARREST, SEARCH AND
SEIZURES. DIRECT THE R-4 TO ISSUE A DETAILED NOTICE TO
THE CLUB MANAGEMENT, IF ANY ILLEGALLTY FOUND IN THE
CLUB AND CALL FOR AN EXPLANATION FORM THE CLUB
MANAGEMENT, AS PER CR.P.C 1973 [155]41, A, B, C AND ALSO
DISCHARGE THEIR DUTIES AS PE THE DIRECTIONS GIVEN BY
THE APEX COURT AND HIGH COURT OF KARNATAKA. DECLARE
THAT K.P. ACT 79 & 80 DOES NOT APPLY FOR REGISTERED
RECREATIONAL CLUBS THIS APPLIES ONLY FOR THE GAMING
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HOUSES. GRANT AN INTERIM ORDER TO STAY ALL FURTHER
INVESTIGATIONS IN CRIME NO.106/2017 DTD:26.2.2017 AND
FURTHER TO RELEASE ARTICLES SEIZED IN P.F.NO. /2017
DTD:26.2.2017 IN FAVOUR OF THE CLUB.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.08.2018 AND COMING ON FOR
PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE
THE FOLLOWING:-
ORDER
Petitioner claims to be a Consultant of The Members Lounge. According to him he is neither the office bearer nor the member of the said club, but the 5th respondent has registered a case against him and others in Crime No.106 of 2017, alleging that poker game and wagering were being played by non- members of the said club in violation of the conditions stipulated in the license, causing disturbance to the peace and tranquility of general public and neighbouring shop owners. Hence, the complainant obtained search warrant from the Assistant Commissioner of Police and raided the Members Lounge on 25.02.2017. During raid, they apprehended accused Nos.1 to 22 and recovered cash of Rs.34,415/-, 80 keys, 40 mother boards, Two sheets, 10 A4 sheets etc. On 25.02.2017, the SHO of 4 Koramangala Police sought permission of the Court for registration of the case and pursuant to the orders of the Court, registered a case in Crime No.106 of 2017 for the offences punishable under sections 79 and 80 of the Karnataka Police Act.
2. Feeling aggrieved by the raid, arrest and seizure of the above articles by respondent Nos.4 and 5, the petitioner has filed this writ petition contending that sections 78, 79 and 80 of the Karnataka Police Act, 1963 ("K.P. Act" for short) applies only to the gaming home and not for recreation club which conducts only game of skill and hence, prima facie interference by respondent Nos.4 and 5 is illegal and contrary to the provisions of the K.P. Act for short. Further it is contended that in view of section 176 of the K.P. Act, the provisions of sections 79 and 80 of the K.P. Act are not applicable to pure game of skill and therefore, registration of the FIR and the consequent investigation conducted by the respondents being contrary to the provisions of law, is liable to be set-aside. It is further contended that the proceedings are initiated against the petitioner in violation of the provisions of section 155 of Cr.P.C., 5 which mandatorily requires the orders of the Magistrate for registration of the case. On these grounds, the petitioner has sought for following reliefs:
a) Quash the case registered in FIR No.106/2017 dated 26.02.2017 vide Annexure-B on the file of Koramangala Police Station;
b) Directing the Commissioner of Police/Respondent No.2 to hold departmental enquiry as per the Supreme Court guidelines against the 5th respondent and to take actions as per law.
c) Restraining the respondents not to intervene with the smooth functioning of the recreation club- 'The Members Lounge'.
d) Declare Poker played in a computerized electronic machine (video games), Fantastic 3 played with 3 dice and 6 colour pin as a game of skill and pass such other order/s which this Hon'ble Court deems fit in the ends of law and justice.
e) The 5th respondent may be directed to pay damages to the petitioner and others who suffered wrongful confinement on account of illegal arrest, search and seizures.
f) Direct the respondent No.4 to issue a detailed notice to the club management, if any illegality found in the club and call for an explanation from the club Management, as per Cr.P.C. 1973 (155) 41, A,B,C and also discharge their duties as per the directions given by the Apex Court and High Court of Karnataka.6
g) Declare that KP Act 79 & 80 do not apply for registered recreational clubs; this applies only for the gaming houses;
h) Pass such other order or order deems fit in the facts and grounds of the case, and in the ends of law and justice.
3. I have heard the learned counsel for the petitioner and the learned HCGP for respondent Nos.1 to 4 and perused the FIR and the documents produced by the petitioner at Annexures 'A' to 'E'.
4. Petitioner has placed reliance on large number of authorities to contend that the action taken against the petitioner by respondent Nos.4 and 5 is illegal and in violation of the provisions of the K.P. Act. But, on considering the contention urged by the petitioner and the proposition of law laid down in the various decisions relied on by the learned counsel, I am of the view that the reliefs claimed by the petitioner are wholly misconceived and the reliance placed on the above decisions is totally misplaced.
5. Undisputedly, the substance of the accusations against the petitioner is that the petitioner not being a member 7 of The Members Lounge was found indulging in a game of chance and wagering. FIR is registered under sections 79 and 80 of K.P. Act.
6. Sections 79 and 80 of the Karnataka Police Act read as follows:
79. Keeping common gaming house, etc.,- Any person who-
a) opens, keeps or uses any building, room, tent, enclosure, vehicle, vessel, or place for the purpose of a common gaming-
house;
b) being the owner or occupier of any such building, room, tent, enclosure, vehicle, vessel, or place knowingly or wilfully permits the same to be opened, occupied, kept or used by any other person for the purpose aforesaid;
c) has the care or management of, or in any manner assists in conducting the business of any such building, room, tent, enclosure, vehicle, vessel or place opened, occupied, kept or used for the purpose aforesaid; or
d) advances or furnishes money for the purpose of gaming with persons frequenting any such building, room, tent enclosure, vehicle, vessel, or place;
8shall, on conviction, be punished with imprisonment which may extend to one year and with fine:
Provided that.-
i. for a first offence, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees;
ii. for a second offence, such imprisonment shall not be less than six months and fine shall not be less than five hundred rupees; and iii. for a third or subsequent offence, such imprisonment shall not be less than nine months and fine shall not be less than one thousand rupees.
80. Gaming in common gaming-house, etc.-
Whoever is found in any common gaming-house gaming or present for the purpose of gaming shall, on conviction, be punished with imprisonment which may extend to one year and with fine:
Provided that.-
a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees;
b) for a second offence such imprisonment shall not be less than three months and fine shall not be less than two hundred rupees;9
c) for a third or subsequent offence such imprisonment shall not be less than six months and fine shall not be less than five hundred rupees.
7. The contention of the petitioner is that poker played in a computerized electronic machine (video game), Fantastic 3 played with 3 dices and 6 colour pins is a game of skill and therefore, the provisions of sections 79 and 80 of the Karnataka Police Act, 1963 are not applicable in the present set of facts. In support of this contention, learned counsel for the petitioner has staunchly relied on section 176 of the K.P. Act which has the effect of expressly saving the games of skill from the rigors of sections 79 and 80 of the K.P. Act. Section 176 reads as follows:
176. Saving of games of skill.- For the removal of doubts it is hereby declared that the provisions of Sections 79 and 80 shall not be applicable to the playing of any pure game of skill and to wagering by persons taking part in such game of skill.
8. A reading of section 176 of K.P. Act, no doubt, indicates that a person taking part in a game of skill could also wager. But, in the instant case, the material allegations are that 10 the accused No.22 being the owner of the Club, has willfully permitted the non-members namely accused Nos.1 to 21 to use the gaming house or the recreation club for the aforesaid purpose.
9. What constitutes the offence under section 79(b) of the K.P. Act is the willful conduct of the owner or occupier of any such building or gaming house in allowing the non-members to use the gaming house.
10. Ofcourse, in a Club there may be diversion of activities and the members of the Club while engaged in the recreation or indulging in the game, in view of section 176 of K.P. Act, could also wager. But a Club by its very constitution is a place to which only its members could be admitted. Therefore it follows that only the members could engage in any diversion of recreational activities. Such an exemption or concession cannot be claimed by a non-member. The entry to the Club is restricted by the terms of the bye-laws of the Club. Therefore, a non-member cannot claim as a matter of right to indulge in any gaming activities of the Club.
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11. In the instant case, no material is produced by the petitioner to show that neither he nor accused Nos.1 to 21 were the members of the aforesaid Club at the time of the raid and that they are entitled, as a matter of right, to play poker in the aforesaid Club with or without stakes. If infact they were entitled to play the game of poker as a matter of right as members of the aforesaid Club, accused Nos.1 to 21 could have very well claimed the benefit of section 176 of the K.P. Act. A non-member, therefore, cannot indulge in any gaming activity in a recreation club or a gaming house, nor can he wager therein. He can do so only at the peril of facing prosecution. Likewise, the owner or the occupier of the Club or gaming house would render himself liable for penal action under sections 79 and 80 of the K.P. Act for permitting such activities in the licensed Club by non-members. Therefore, in view of this clear position of law and fact, in my view, it is not necessary to embark upon any enquiry as to whether the poker game was a game of skill or a game of chance. As long as the petitioner and other accused are found indulging in gaming activities run by its owner or 12 occupier contrary to the terms of the license by allowing non- members into the building, in my view, the rigors of sections 79 and 80 of the K.P. Act get attracted. Therefore, I do not find any good ground to accept the contention of the petitioner that initiation of action against the petitioner on the purported allegation is illegal and contrary to the provisions of the Karnataka Police Act. Even otherwise, the petitioner is not being either owner or member of the aforesaid recreation club, the contention urged by the petitioner, whether poker played in a computerized electronic machine (video game) in the aforesaid Club is a game of skill or a game of chance cannot be decided at the instance of the petitioner . For all these reasons, I am of the view that the petitioner is not entitled for any of the reliefs claimed in the petition.
12. In so far as the contention regarding the non- compliance of section 155 of Cr.P.C. is concerned, suffice it to note that in the annexures produced by the petitioner himself there is a clear recital that prior to the registration of the FIR, the necessary permission of the Magistrate was secured by the 13 respondent No.4. This fact is specifically stated even in the FIR. Therefore, no grouse could be raised by the petitioner on the purported ground that for want of prior authorization under section 155 of Cr.P.C., FIR registered against the petitioner and the consequent investigation is liable to be set-aside.
13. The various decisions relied on by the petitioner, in my view, are not applicable to the facts of this case. In RAMA RECREATION ASSOCIATION vs. COMMISSIONER OF POLICE, ILR 1993 Karnataka 3357, the question that arose for consideration of this court was, whether the activities of a club or the activities of an Association require licensing under the provisions of the Karnataka Police Act. In the said case, the petitioner therein was a registered society which was formed by its members for playing games of recreation like carrom, chess, rummy. The recreational activities referred above were confined only to the members of the club. In that context, police authorities having insisted for the license to run the said club in terms of the Karnataka Public Amusement Licensing Order, this Court held that, in a Club, there may be any diversion or game but that by 14 itself will not convert the place into the place of public amusement. A Club is a place to which only its members are permitted to engage in any diversion or recreational activities etc. The entry to the Club is restricted by the terms of the bye- laws and in that circumstance, it was held that the petitioner cannot be compelled to obtain a license under the Licensing Order.
In the instant case, the factual matrix is entirely different. The allegations pertain to misuse of the license by permitting non-members to use the Club premises for wagering purposes.
14. In the next decision in MOIN BASHA KURNOOLI vs. THE STATE OF KARNATAKA, 2014 (4) KCCR 3355, the issues involved were, (1) Whether section 78(3) of the K.P. Act is a cognizable offence or non-cognizable offence, in view of the power of arrest without a warrant provided under section 88 of the said Act?
(2) Whether the investigation of the cases under section 78(3) of the K.P. Act and all further proceedings are vitiated by incurable illegalities or defects for want of permission to 15 investigate the case by the competent Magistrate under section 155(2) of Cr.P.C.?
(3) Whether the reports (charge sheets) of the Police Officers with regard to non-cognizable offences can be treated as complaints under section 2(d) of Cr.P.C.?
After analyzing the various decisions on the above points, this Court laid down certain guidelines to the Magistrate with regard to the compliance of provisions of section 155 of Cr.P.C. as well as on application of judicial mind by the Magistrate while taking cognizance of the offences pertaining to non-cognizable offences.
In the instant case, undisputedly, prior permission as required under section 155(2) of Cr.P.C. was taken by the fourth respondent before registration of the FIR. The materials produced before the Court indicate that the learned Magistrate has applied his mind to the facts of the case and has granted the requisite permission. Therefore, even this decision is not helpful to the petitioner to advance the contentions urged in the petition.
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15. In W.P.No.20659/2015, the applicability of section 188 of Indian Penal Code was in question. The said issue is not germane before us in the instant case. Therefore, the principles laid down in the said decision are not applicable to the facts of this case.
16. In E.ERANNA & Others vs. THE STATE OF KARNATAKA, ILR 1977 KAR 793, the conviction of the accused therein was set-aside on the ground that the essential ingredients of the offences were not proved. The prosecution had failed to establish that the petitioner/accused therein was playing a game of chance. The court therefore held that the prosecution having failed to prove that 'Andar Bahar' is a game of chance, there was no justification to maintain the conviction of the accused and consequently, set-aside the sentence awarded on the accused.
17. W.P.No.27530/2013, W.P.No.38042/2010 and W.P.No.14828/2014 related to requirement of license which is not an issue involved in this case.
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18. In D.V.R. RECREATION CLUB vs. THE STATE OF KARNATAKA & Others, 2017(1) Kar.L.R. 280, the Division Bench of this Court while interpreting section 176 of the Karnataka Police Act has held that in view of said provision, a person taking part in games of skill could also wager. I have followed this principle while rejecting the contention urged by the petitioner .
Thus on overall consideration of all the facts and circumstances of this case, I hold that the petitioner is not entitled for the reliefs claimed in the petition.
For the aforesaid reasons, the writ petition is dismissed.
SD/-
JUDGE Bss.