Karnataka High Court
Mr. Bhavesh Bafna vs State Of Karnataka on 13 June, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1341 OF 2022
BETWEEN:
MR. BHAVESH BAFNA
S/O RAJENDRA KUMAR BAFNA
AGED ABOUT 25 YEARS
R/AT NO.27, 6TH MAIN, 3RD FLOOR,
MARUTHI PRASANNA EXTENSION,
OPPOSITE BYE TWO COFFEE ROAD
CHAMARAJPETE
BENGALURU - 560 018.
... PETITIONER
(BY SRI HASHMATH PASHA, SR.ADVOCATE FOR
SRI NASIR ALI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY J.P.NAGAR POLICE STATION,
BENGALURU CITY - 560 078.
2. ASSISTANT COMMISSIONER OF POLICE
CENTRAL CRIME BRANCH POLICE,
OFFICE AT NT PETE
BENGALURU CITY - 560 053.
(RESPONDENT NO.1 AND 2
REPRESENTED BY
2
LEARNED SPP
HIGH COURT OF KARNATAKA
BENGALURU)
3. MR.BHAVESH GULECHA
S/O RAMESH GULECHA
AGED 26 YEARS,
R/AT NO.506, 6TH FLOOR,
BRINDAVAN MANSION
B.T.ROAD,
BENGALURU - 560 018.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1 AND R2;
SRI M.C.RAVI KUMAR, ADVOCATE FOR R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
INCLUDING FIR AS PER ANNEXURE-A AND CHARGE SHEET AS PER
ANNEXURE-B AND ORDER OF TAKING COGNIZANCE AS PER
ANNEXURE-C PASSED IN C.C.NO.2938/2020 ON THE FIEL OF THE I
ACMM, BANGALORE WHICH IS ARISING OUT OF CR.NO.180/2019
OF J.P NAGAR P.S.,BANGALORE FOR THE OFFENCE P/U/S
120B,420,201,511 R/W 34 OF IPC AS AN ABUSE OF PROCESS OF
LAW.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.2938/2020, pending on the file of the I Additional Chief Metropolitan Magistrate, Bengaluru, arising out of Crime No.180/2019 registered for the offences punishable 3 under Sections 120B, 420, 201, 511 read with Section 34 of the IPC.
2. Heard Sri Hashmath Pasha, learned senior counsel for the petitioner, Smt. K.P.Yashodha, learned High Court Government Pleader for respondent Nos.1 and 2 - State and Sri M.C.Ravi Kumar, learned counsel for respondent No.3.
3. Learned senior counsel submits that the issue in the petition stands covered by an order passed by a Co-ordinate Bench of this Court in CRL.P.NO.2929/2020 AND CONNECTED MATTERS D.D. ON 10.01.2022, which is not disputed by the learned High Court Government Pleader.
4. The order dated 10.01.2022, passed in Crl.P.No.2929/2020 and connected matters, read as follows:
""8. I have considered the arguments. Firstly, one point of argument regarding registration of an FIR is to be dealt wi th. All the counsel f or the peti tioners have f ussed over this aspect. It is true that the second respondent made a repor t to the Cubbon Park police f or registration of FIR on the basis of inf ormation that he gathered while interrogating a player in connection wi th Crime No. 124/2019. It appears that the inf ormation the 4 second respondent gathered is in the f orm of conf ession of an accused and this is the reason f or taking s trong objection f or registration of FIR in Crime No. 197/2019 which has given rise to charge sheet in the case on hand. Of course there is substance in the argument that the conf ession statement of an accused given bef ore the police cannot be ref erred to in view of bar contained in section 25 of the Indian Evidence Act. But, the said bar is to the extent of proving the conf ession against the accused who made it, there is no prohibition as such to make use of any inf ormation that a police off icer comes to know f or the f irst time regarding a crime which might have taken place in the past and not detected till then, while interrogating an accused in connection with another case of crime. Supposing that an accused himself goes to police station and gives inf ormation about the of f ence committed by him, the police in such a circumstance can very well register an F IR and this proposi tion is well established [Faddi vs State of Madhya Pradesh, (AIR 1964 SC 1850) and Aghnoo Nagesia vs State of Bihar (AIR 1966 SC 119)]. If this is the posi tion, why a statemen t given by a co-accused regarding another crime cannot be made use of f or registration of FIR. In f act many incidents of thef t, robbery or dacoity come to light only during such interrogations. It may be s tated f urther that such statement can be made use of only f or the limited purpose of registration of FIR and it cannot be used f or proving it agains t an accused. Registration of FIR is not the end in i tself and it is not a substantive piece of evidence also. Mere registration of FIR in this manner does not lead to convicting an accused, investigator has to collect independent evidence and f urther the prosecution must be able to prove its case beyond reasonable doubt. Theref ore the entire argument that statemen t of a co-accused during interrogation in connection wi th some other crime 5 cannot f orm basis f or registration of FIR is totally unf ounded.
9. Regarding the argument of Sri Hashmath Pasha that statement recorded by respondent No.2 during investigati on in Crime No. 124/2019 has not been produced, i t is to be s tated that production of such a s tatement is not necessary. FIR is to be registered based on the inf ormation relating to commission of a cognizable off ence. According to respondent No.2 he collected that inf ormation during interrogation in Crime No. 124/2019. It was a conf essional statement of an accused and it f orms part of the record in Crime No. 124/2019. While a copy of that statement could have been produced along wi th report made by respondent No.2 to the Cubbon Park police, i ts non-production has least eff ect f or, even if it is produced, i t cannot be proved against the accused in the present case. The report of respondent No.2 sho ws inf ormation that he collected regarding match f ixing f or the KPL matches of the season 2019 and this much of inf ormation can certainly be basis f or registration of FIR if really an off ence has been commi tted. Theref ore this argument is also not acceptable.
10. Ho wever, the other common point urged by all the counsel is wor th acceptance. According to the prosecu tion match f ixing amounts to cheating and theref ore the off ence under section 420 IPC has been invoked in the charge sheet. For invoking off ence under section 420 IPC, the essential ingredients to be present are deception, dishonest inducement of a person to deliver any property or to alter or destroy the whole or any part of a valuable securi ty. It was argued by Sri Dhyan Chinnappa that the cricket lovers go to watc h the match by buying tickets and thereby they are induced to part wi th their property, i.e., their money. Of course money is a property, but his argument that they are induced to buy tickets 6 cannot be accepted. They may have a f eeling that they are going to wi tness a f air game being played, but, they buy the tickets voluntarily. So, ques tion of inducement to buy ticket can be ruled out.
11. It is true that if a player indulges in match f ixing, a general f eeling will arise that he has cheated the lovers of the game. But, thi s general f eeling does not give rise to an off ence. The match f ixing may indicate dishonesty, indiscipline and mental corruption of a player and f or this purpose the BCC I is the authori ty to initiate disciplinary action. If the bye-laws of the BCCI provide f or initiation of disciplinary action against a player, such an action is permi tted but, registration of an FIR on the ground that a crime punishable under section 420 IPC has been commi tted, is not permitted. Even if the entire charge sheet averments are taken to be true on their f ace value, they do not constitute an of f ence.
12. One of the petitioners is a bookie said to have involved in betting. Sri Hashmath Pasha has relied upon a judgment of the Supreme Cour t in Board of Control for Cricket vs Cricket Association of Bihar and Others [2016 (8) SCC 535] where i t is observed that betting is to be legalized. It was argued by the respondent that betting amounts to gaming which is an off ence under the Karnataka Police Act. If section 2(7) of Karnataka Police Act is seen, its explanation very clearly says that game of chance does not include any athletic game or sport. Cricket is a sport and theref ore even if betting takes place, i t cannot be brought wi thin the ambit of def inition of 'gaming' f ound in Karnataka Police Act.
13. Sri Dhyan Chinnappa argued that section 120B of IPC is an independent off ence and theref ore notwi thstanding the f act that ingredients f or sec tion 7 420 IPC can be said to be not there f or argument sake, still the accused can be prosecuted f or off ence under 120B and in this regard he has placed reliance on the judgment of a co-ordinate bench of this cour t in the case of Sachin Narayan vs Income Tax Department and Another (W.P.5299/2019 and connected writ petitions). There is no second word wi th regard to his argument that section 120B is an independent off ence but, to invoke this off ence of conspiracy, as has been argued by Sri Hashmath Pasha, the allegations f ound in the charge sheet must consti tute an off ence in connection wi th which conspiracy is alleged. As discussed above, the allegations f ound in the charge sheet do not constitute an offence under secti on 420 IPC and theref ore off ence under section 120B cannot be invoked in the f acts and circumstances. Theref ore the argument of Sri Dhyan Chinnappa cannot be accepted.
14. From the f oregoing discussion, I come to conclusion that all these petitions deserve to be allo wed. The proceedings agains t the peti tioners in C.C.2939/2020 on the f ile of I ACMM, Bengaluru, are quashed."
The aforesaid order passed by a Co-ordinate Bench of this Court would cover the case at hand on all its fours. Therefore, in the light of the order passed by a Co-ordinate Bench of this Court supra, the following:
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ORDER i. The Criminal Petition is allowed.
ii. The proceedings in C.C.No.2938/2020, pending on the file of the I Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed.
Sd/-
JUDGE nvj CT:MJ