Karnataka High Court
Lokesha S/O Chidanand Ambalagi vs The State Through on 7 June, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 7TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.101121/2017
BETWEEN:
1] Lokesha S/o.Chidanand Ambalagi,
Age : 27 years, Occ : Student,
R/o. Ram Nagar, Gulbarga,
Tq & Dist. Gulbarga.
2] Basavaraja S/o.Bhimshya Mattimood,
Age : 37 years, Occ : ZP Member,
R/o.CIB Colony, Kalaburgi. ...Petitioners
(By Sri.Avinash A.Uplaonkar, Advocate)
AND:
The State through
Siruguppa Police Station,
Dist.Ballari, Now Represented
by Addl.SPP., High Court of Karnataka,
At Dharwad Bench.
...Respondent
(By Sri. Raja Raghavendra Naik, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C seeking to exercise inherent powers under
Section 482 of Cr.P.C examine the records and quash
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the initiation of proceedings in CC.No.89/2017 (Crime
No.88/2016 Siruguppa P.S) pending on the file of Civil
Judge and JMFC Court, At Siruguppa, for the offences
punishable under Sections 78(1)(a)(vi) of K.P.Act 1963
against the petitioners.
This petition coming on for admission, this day,
the court, made the following:
ORDER
Though the matter is listed for admission, with consent of both the sides it is taken up for final disposal.
2. This petition is filed by the petitioners/accused Nos.2 and 3 under Section 482 of Cr.P.C praying the Court to quash the initiation of proceedings in CC.No.89/2017 (Crime No.88/2016 of Siraguppa Police Station) pending on the file of Civil Judge and JMFC Court, at Siruguppa for the offence punishable under Sections 78(1)(a)(iv) of Karnataka Police Act, 1963 in the interest of justice and equity.
3. The brief facts of the prosecution case as per the complaint averments are that, on 28.03.2016, when :3: the complainant was in the office at Siruguppa at 8-30 p.m, he received a credible information about playing betting in respect of "T-20 World Cup" cricket match between South-Africa and Srilanka in a public place by one person. Immediately, the complainant went to the spot along with his staff and panchas at 9.20 p.m. and hiding their presence at Ambedkar Circle, started watching. Then they found a person inviting the public over a cell phone to play game of chance/betting. The said person was attracting the public by saying that, this player will get nine runs in that particular over, for which, he told the public that he will pay Rs.2,000/- for Rs.1,000/- and that if Srilanka wins the match, he will pay Rs.4,000/- for Rs.2,000/-, if South-Africa wins he will pay Rs.2,000/- for Rs.1,000/-. Some persons were giving money to said person and receiving something and said person was writing down in the paper. The raiding party conducted raid, and on enquiry the said person revealed his name as Mothilal/accused No.1 and :4: also revealed that he informed the cricket betting message to petitioners through phone and said petitioners were receiving betting amount whenever he met them once in a week. On personal search, they found Rs.4,800/-, cell phone, betting chit and one ball pen. On the basis of the said complaint, a case came to be registered for the alleged offence.
4. Being aggrieved by initiation of the criminal proceedings against accused No.2 and 3, they are before this Court in this petition.
5. Heard the arguments of the learned counsel appearing for the petitioners and also the learned High Court Government Pleader on behalf of respondent- State.
6. I have perused the grounds urged in the petition, FIR and complaint, the spot mahazar and also :5: the other materials produced along with the petition by the petitioner.
7. Looking to the materials placed on records, firstly the FIR was registered for the offence punishable under Section 78(3) of the K.P.Act and also under Section 420 of IPC, but while filing the charge sheet, the offence punishable under Section 420 of the IPC was dropped. The alleged offence under Section 78(3) of K.P.Act is a non cognizable offence. It is no doubt true, that as the offence under Section 420 of IPC was also inserted in the FIR, and when out of many offences one of the offence is a cognizable offence, the police officer has power to proceed and investigate the matter without obtaining the order of Magistrate and no prior permission of the concerned Court is required, as per Section 155 or 156 of the Cr.P.C. But in the case on hand the question is whether really there was a material even for the offence under Section 420 of IPC is the :6: point for consideration or the said Section was inserted in the FIR only to over come the mandatory requirement of Section 155(2) of Cr.P.C. Looking to the materials placed on record and while filing the charge sheet it is the opinion of the police machinery themselves that there is no material to attract the offence under Section 420 of IPC this clearly goes to show that the only to over come the mandatory requirement, the offence under Section 420 of IPC was also inserted in the case. It is also a noticeable fact that immediately the police proceeded to the spot and arrested accused No.1, seized the betting money, drawn the mahazar and also seized other materials at the spot and then they came to the police Station and registered the FIR as against the accused No.1 and also the present petitioners herein. The contention of the petitioner is that investigation of the case was almost over by the time the police came back to the police station and registered the case as against the present petitioners and hence the said FIR, :7: in reality, is not a complaint and it is hit by Section 162 of Cr.P.C, and it is only amounts to statement recorded under Section 161 of Cr.P.C during investigation. Apart from that as per the prosecution case itself accused No.2 and 3 were not at all found at the spot, it is only accused No.1 who was said to be present at the spot and only on the basis of the voluntary statement said to have been given by the accused no.1, these two petitioners have been arrayed as accused No.2 and 3. Section 78 (3) of the K.P.Act it starts with the words clause-3 "Whoever is found gaming". Looking to the wordings under Section 78(1)(2) of K.P.Act even the said provisions are also not attracted in the said case, as it is submitted by the petitioners herein, that they are neither the owners nor the occupiers of the said place, wherein alleged offences said to have been taken place. Therefore even on that ground, the alleged offence under Section 78(1)(a)(ii) or (vi) of the said Act will not be attracted.
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8. Looking to the facts and circumstances of the case on hand, even if case of the prosecution that at that time of registration of the FIR, there was some material for registering the crime even for the alleged offence under Section 420 of IPC is concerned and for the purpose of appreciation, it is taken to be correct, even in that case also they have to comply with the mandatory requirements of Section 154(1) of Cr.P.C as per the decision of the Hon'ble Apex Court reported in (2014) 2 SCC 1 in the case of Lalita Kumari vs. Government of Uttar Pradesh and others; wherein their lordships have observed clearly that if such offence is committed, immediately after receipt of the information the police have to enter the same in the concerned register maintained in the Police Station. But in the case on hand no such material regarding entry of the information placed by the prosecution before this Court. In such circumstances, the contention of the prosecution that at the initial stage while registering FIR :9: there was some material even for the offence under Section 420 of IPC also cannot be accepted. There is no complaint lodged by any body that, they have been cheated by the petitioners/accused of the alleged betting. In such circumstances, I am of the opinion that, initiation of the criminal proceedings sofar as the petitioners/accused Nos.2 and 3 are concerned, it is totally groundless and there is no prim-facie material and it is clearly an abuse of process of the Court.
9. Accordingly, petition is allowed, proceedings are quashed.
Sd/-
JUDGE Ckk