Karnataka High Court
Moin Basha Kurnooli vs The State Of Karnataka on 5 March, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 05TH DAY OF MARCH, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRL.P. NO. 100378/2014 a/w
CRL.P. NO.100379/2014 &
CRL.P. NO.100403/2014
BETWEEN:
In Crl.P. No.100378/2014:
Moin Basha Kurnooli
S/o Late Haji Abdul Gafoor,
Aged about 42 years,
R/at D.No.19, W. No.28,
More Galli, Cowl Bazaar,
Bellary. ... Petitioner
(By Sri. V. Shivaraj Hiremath, Adv.)
AND:
The State of Karnataka,
By Brucepet Police Station,
Bellary, Represented by
Public Prosecutor,
High Court of Karnataka,
Bench at Dharawad. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
2
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO SET ASIDE THE ORDER DATED
24.01.2014 THE STAGE REGISTERING THE CRIMINAL
CASE WITHOUT TAKING COGNIZANCE OF THE CASE
AND ALSO ORDER SUMMONING THE PETITIONER
BEFORE THE COURT IN THE INSTANT CASE FOR THE
ALLEGED OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT, 1963 IN C.C. NO.
121/2014 ON THE FILE OF I ADDITIONAL CIVIL
JUDGE (JR. DN.) & J.M.F.C., BELLARY AND TO
QUASH THE CRIMINAL PROCEEDINGS INSTITUTED
AGAINST THE PETITIONER.
BETWEEN:
In Crl.P. No.100379/2014:
Moin Basha Kurnooli
S/o Late Haji Abdul Gafoor,
Aged about 42 years,
R/at D.No.19, W. No.28,
More Galli, Cowl Bazaar,
Bellary. ... Petitioner
(By Sri. V. Shivaraj Hiremath, Adv.)
AND:
The State of Karnataka,
By Brucepet Police Station,
Bellary, Represented by
Public Prosecutor,
3
High Court of Karnataka,
Bench at Dharawad. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO THE SET ASIDE THE ORDER DATED
24.01.2014 THE STAGE REGISTERING THE CRIMINAL
CASE WITHOUT TAKING COGNIZANCE OF THE CASE
AND ALSO ORDER SUMMONING THE PETITIONER
BEFORE THE COURT IN THE INSTANT CASE FOR THE
ALLEGED OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT, 1963 IN C.C. NO.
122/2014 ON THE FILE OF I ADDITIONAL CIVIL
JUDGE (JR. DN.) & J.M.F.C., BELLARY AND TO
QUASH THE CRIMINAL PROCEEDINGS INSTITUTED
AGAINST THE PETITIONER.
BETWEEN:
In Crl.P. No.100403/2014:
Moin Basha Kurnooli
S/o Late Haji Abdul Gafoor,
Aged about 42 years,
R/at D.No.19, W. No.28,
More Galli, Cowl Bazaar,
Bellary. ... Petitioner
(By Sri. V. Shivaraj Hiremath, Adv.)
AND:
The State of Karnataka,
By Cowl Bazaar Police Station,
4
Bellary, Represented by
Public Prosecutor,
High Court of Karnataka,
Bench at Dharawad. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO THE SET ASIDE THE ORDER DATED
11.10.2013 THE STAGE REGISTERING THE CRIMINAL
CASE WITHOUT TAKING COGNIZANCE OF THE CASE
AND ALSO ORDER SUMMONING THE PETITIONER
BEFORE THE COURT IN THE INSTANT CASE FOR THE
ALLEGED OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT, 1963 IN C.C. NO.
777/2013 ON THE FILE OF II ADDITIONAL CIVIL
JUDGE (JR. DN.) & J.M.F.C., BELLARY AND TO
QUASH THE CRIMINAL PROCEEDINGS INSTITUTED
AGAINST THE PETITIONER.
THESE CRIMINAL PETITIONS COMING ON FOR
ADMISSION, THIS DAY THE COURT PASSED THE
FOLLOWING:
ORDER
In Crl.P. No.100378/2014 the petitioner sought for quashing of the orders passed by the I Addl. Civil Judge (Jr.Dvn.) and J.M.F.C., Bellary in C.C. No. 121/2014 dated 24.02.2014 wherein this petitioner is 5 arrayed as Accused No.2. In Crl.P. No.100379/2014 the petitioner sought for quashing of the proceedings in C.C. No.122/2014 on the file of the I Addl. Civil Judge (Jr.Dvn.) and J.M.F.C., Bellary dated 24.01.2014 wherein this petitioner is arrayed as Accused No.3. In Crl.P. No.100403/2014 the petitioner also sought for quashing of the entire proceedings in C.C. No.777/2013 passed by the II Addl. Civil Judge (Jr.Dvn.) and J.M.F.C., Bellary dated 11.10.2013 wherein the petitioner is arrayed as Accused No.3.
2. In all the above cases, it is alleged by the petitioner that Brucepet Police and as well as Cowl Bazaar Police respectively have registered cases against the petitioner for the offence under Section 78(3) of Karnataka Police Act and submitted a charge sheet and the learned Magistrate even without taking the cognizance registered the criminal case and issued summons against the petitioner herein. 6
3. The learned Counsel for the petitioner strenuously contends before this Court that even the entire charge sheet papers are translated into evidence, there is no whisper of any offence being committed by this petitioner. On the other hand, solely on the basis of the statement of the co-accused the present petitioner's name has been incorporated in the charge sheet. Except that nothing is there to constitute any offence under Section 78(3) of the Karnataka Police Act. Therefore, he contends that the entire charge sheet is baseless and the criminal proceedings cannot be continued against the petitioner.
4. I have also heard the learned Additional State Public Prosecutor appearing in this case.
5. It is just and necessary to bear in mind before adverting to the grounds urged by the learned Counsel 7 for the petitioner herein the brief factual matrix of the above said three cases:
a) In Crl. P. No.100378/2014, the facts are that on 11.12.2013 the Brucepet Police received a credible information that a person standing near a public lavatory at small Market at Bellary i.e. he was playing some Matka game there. The Sub-Inspector of Police, Brucepet Police Station along with his staff went to the particular spot and caught hold the said person by name S. Mabu S/o S. Akbarsab and he was doing some Matka business i.e. to say that he was giving some Matka chits to the public at large saying that he would give Rs.80/- per Re.1/- if they win in the matka game. The said person was arrested by the Police and it is alleged that during the course of his statement he has divulged the name of the present 8 petitioner stating that the said accused No.1 was giving the said Matka list to the present petitioner.
b) In Crl.P. No. 100379/2014 is concerned, the factual matrix are that on 28.12.2013 at about 2.20 P.M. the Brucepet Police, Bellary on receiving credible information, the Sub-
Inspector of Police along with his staff went to a place called Gangappa Jin Circle at about 3.00 p.m. and they found two persons standing doing some Matka business saying that if persons luckily get the Matka Number they will get Rs.80/- per Re.1/-. The Police have in fact caught hold two persons who have disclosed their name as Fayaz S/o Mohammed and Jammu S/o Abdul. The Police have also recovered an amount of Rs.2,385/- and 4 Matka written slips and one Ball Pen, etc. In 9 this case also on enquiring with the said accused Nos.1 and 2 they disclosed the name of the present petitioner stating that they were used to give Matka list to this petitioner.
c) So far as Crl.P. No.100403/2014 is concerned, the facts are that Cowl Bazaar Police on 14.08.2013 on receiving credible information at about 6.20 p.m. the ASI attached to the said Police Station along with his staff went near Jagruti Nagar, Bye-Pass Road and found three persons were engaged in playing Matka game. Those three persons calling the public to play Matka and if they are successful they can get Rs.80/- per Re.1/-. The Police have caught hold two persons, but the third person successfully ran away from the spot. The other two persons who were caught by the Police disclosed their names as Farooq S/o 10 Mohammed Ismail and another by name Ramanna S/o Venkatesh. It is alleged that those two persons divulged the name of the person who ran away from the spot as Moin S/o Gafoor Sab, who is petitioner herein. The Police have also recovered a sum of Rs.2,040/- and 2 Matka written slips and one Ball Pen and two mobile phones from the above said two persons and after investigation submitted a charge sheet under Section 78(3) of Karnataka Police Act.
6. Now, coming to the grounds urged by the learned Counsel in all the above said cases. It is contended that even the entire charge sheet papers are translated into evidence, at this stage, there is absolutely no evidence to constitute the offence under Section 78(3) of the Karnataka Police Act so far as it relates to petitioner is concerned.
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7. I have carefully perused section 78(3) of Karnataka Police Act, which reads as follows :
"78(3) Whoever is found gaming on any of the objects specified in sub-section (1) in any public street or thoroughfare or in any place to which the public have or are permitted to have access shall, on conviction be punished with imprisonment which may extend to three months or with fine which may extend to three hundred rupees, or with both".
8. In order to attract this particular provision, a person should be found gaming of any of the objects prescribed in Sub-Section (1) in any public street or thoroughfare or in any place to which the public have or are permitted to have access shall, on conviction be punished with imprisonment which may extend to three months or with fine. Therefore, it goes without saying that the person should be indulged in gaming on that 12 particular spot with the public. The present petitioner was not found on the spot in any of the above cases.
9. On perusal of the above said charge sheet papers, though the other accused persons who were playing the Matka as per the Police Report found in the above said places, but in none of the cases it is said that the petitioner was present and playing any Matka at the places noted in the respective cases. In the case in Crl.P. No.100403/2014 though it is stated that, three persons were playing Matka one person ran away from the spot and the other accused Nos.1 and 2 who were caught have divulged the name of this petitioner as the person who was there. Subsequently, during the course of investigation, charge sheet papers does not establish that the accused No.3 was shown to any persons who are the witnesses to the incident and got the accused No.3 i.e. petitioner identified in order to implicate him into the crime. In other two cases noted above, the 13 accused persons who were arrested by the Police have divulged the name of this petitioner stating that they were submitting the Matka list to this petitioner. But in order to connect this allegation between arrested accused persons and the petitioner, nothing has been collected by the Police, no sort of materials placed in the charge sheet except the alleged voluntary statements of the arrested accused persons. It is the well founded principle of law under Section 27 of the Indian Evidence Act, that the Police can discover certain facts and on the basis of such facts, the Police can connect the accused persons into the crime. Even accepting that the name of this petitioner was discovered from the mouth of the co-accused but apart from that the Police have to produce certain materials to connect the petitioner into the crime. Therefore, excluding the voluntary statement of the accused persons divulging the name of this petitioner, nothing is there on record to show that this 14 petitioner has actually committed any offence much less under Section 78(3) of the Karnataka Police Act. Therefore, the learned Counsel for the petitioner is right in contending that even translating the entire charge sheet into evidence that does not disclose any offence against this petitioner and the allegations does not constitute any offence much less under Section 78(3) of the Karnataka Police Act.
10. The other contention taken by the learned Counsel is that after filing of the charge sheet, as rightly contended the learned Magistrate even has not looked into the charge sheet papers but very casually he ordered to issue summons to accused persons including this petitioner. Under the provisions of Criminal Procedure Code when a private complaint is filed or a charge sheet is filed by the Police, the Magistrate has to go through the contents of the charge sheet papers and then he has to convince himself that the allegations 15 made in the charge sheet papers constitute any offence against the accused persons so as to issue summons against the accused persons. But such a thing has not been done by the learned Magistrate so far as these cases are concerned. He simply in a casual manner issued summons against the accused persons. If the learned Magistrate would have seen the charge sheet papers he would not have issued summons so far as this petitioner is concerned.
11. Under the above said circumstances, I am of the opinion that the petitioner has made out a good case for quashing of the proceedings in the above said Criminal Case Numbers so far as it relates to this petitioner is concerned.
12. Hence, the following Order :
Crl. P. Nos.100378/2014, 100379/2014 and Crl.P. No. 100403/2014 are hereby allowed. 16 Consequently, the criminal cases pending in C.C. Nos.121/2014, 122/2014 and C.C. No. 777/2013 on the file of I Addl. Civil Judge (Jr.Dvn.) and J.M.F.C. and II Addl. Civil Judge (Jr.Dvn.) and J.M.F.C., Bellary pertaining to this petitioner is concerned are hereby quashed. The Trial Court has to proceed against other accused persons.
SD/-
JUDGE Rbv