Karnataka High Court
M/S. Bambino Associates vs The State Of Karnataka on 4 February, 2016
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
WRIT PETITION NO.20659/2015 (GM-RES)
C/W
WRIT PETITION NOS.16633-16635/2015 (GM-RES)
W.P. NO.20659/2015 (GM-RES)
BETWEEN:
M/S BAMBINO ASSOCIATES
FANTASTIAC - 3, SHOP NOS.10 & 11,
GROUND FLOOR, 5TH AVENUE,
BRIGADE ROAD,
BENGALURU - 560 003
REPRESENTED BY ITS MEMBER
JEETHA,
S/O POOJARI
AGED ABOUT 21 YEARS, MEMBER,
M/S BAMBINO ASSOCIATES (F-3)
R/O VAMANJUR VILLAGE
MANGALURU CITY - 01. ...PETITIONER
(BY SRI V.LAXMINARAYANA, SR. ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE COMMISSIONER OF POLICE
INFANTRY ROAD
BENGALURU - 560 001.
2
3. THE DEPUTY COMMISSIONER OF POLICE
CRIME BRANCH
BENGALURU CITY - 560 018.
4. THE POLICE INSPECTOR
CCB, S & E,
NEW THARAGUPET,
BENGALURU - 560 002.
5. THE POLICE INSPECTOR
CUBBON PARK POLICE STATION
BENGALURU CITY - 01. ...RESPONDENTS
(BY SRI CHETAN DESAI, HCGP.)
W.P. NOS.16633-635/2015 (GM-RES)
BETWEEN:
1. THE MEMBERS RECREATION LOUNGE,
RECREATION CLUB
SHOP NO.5-A, ROOPA COMPLEX,
NO.54, 2ND CROSS,
MANUVANA METRO STATION,
VIJAYA NAGARA,
BENGALURU - 560 003.
REPRESENTED BY ITS PRESIDENT
S.SUNIL,
S/O SEENAPPA,
AGED ABOUT 32 YEARS
2. HARIRAJ SHETTY
S/O VASANTHRAM SHETTY
AGED ABOUT 51 YEARS, MEMBER
THE MEMBERS RECREATION LOUNGE
SHOP NO.5-A, ROOPA COMPLEX,
NO.54, 2ND CROSS,
MANUVANA METRO STATION,
VIJAYA NAGARA,
BENGALURU - 560 003.
3. K.GANESHAN S/O KRISHNA MURTHY
AGED 30 YEAR, MEMBER
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THE MEMBERS RECREATION LOUNGE
R/A NO.43, 9TH MAIN,
MARIYAPPANA PALYA
BENGALURU - 560 023. ...PETITIONERS
(BY SRI V.LAXMINARAYANA, SR.ADV. FOR
SRI N.RAVINDRANATH KAMATH, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE COMMISSIONER OF POLICE
INFANTRY ROAD
BENGALURU - 560 001.
3. THE ADDITIONAL COMMISSIONER OF POLICE
(WEST DIVISION) CRIME
INFANTRY ROAD
BENGALURU - 560 001.
4. THE JOINT COMMISSIONER OF POLICE
DRIME,
BENGALURU CITY - 560 001.
5. THE DEPUTY COMMISSIONER OF POLICE
(WEST DIVISION) CRIME
UPPARPETE,
BENGALURU CITY - 560 001.
4. THE SUB-INSPECTOR OF POLICE
VIJAYANAGAR POLICE STATION,
BENGALURU - 560 040.
5. THE POLICE INSPECTOR
CCB (F & M SQUAD)
NEW THARAGUPET,
BENGALURU - 560 002. ...RESPONDENTS
(BY SRI CHETAN DESAI, HCGP.)
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WRIT PETITION NO.20659/2015 IS FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ
WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO DECLARE THAT THE REGISTRATION OF FIR VIDE
ANN-B IN CRIME NO.143/2015 VIDE ORDER DATED 4.4.2015 OF
CUBBON PARK POLICE STATION ON THE WRONG ASSUMPTION
THAT FANTASTIC-3 IS GAME OF CHANCE, EVEN THOUGH IT IS
DECLARED AS A 'GAME OF SKILL' AND LICENSE IS NOT
REQUIRED, IS CONTRARY TO THE LAW LAID DOWN BY THIS
HON'BLE COURT AND WITHOUT THE AUTHORITY OF LAW AND
QUASH THE FIR IN CRIME NO.143/2015 OF CUBBON PARK
POLICE STATION REGISTERED FOR OFFENCES UNDER SECTION
188 IPC READ WITH SECTIONS 78-A(VI), 79 AND 80 OF
KARNATAKA POLICE ACT ON THE BASIS OF GOVERNMENT
ORDER DATED 12.09.2013 WHICH HAS BEEN WITHDRAWN BY
THE GOVERNMENT, AS BEING WITHOUT THE AUTHORITY OF
LAW, CONTRARY TO THE DIRECTIONS OF THIS HON'BLE COURT
AND ETC.
WRIT PETITION NOS.16633-16635/2015 ARE FILED
UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH ANNX-C THE FIR IN CRIME NO.0198/2015
DT.5.4.2015 OF VIJAYANAGAR POLICE STATION REGISTERED
FOR OFFENCES U/S 188 IPC R/W SEC.78-A(VI), 79 & 80 OF
KARNATAKA POLICE ACT AS BEING WITHOUT THE AUTHORITY
OF LAW AND REGISTRATION OF FIR IS CONTRARY TO THE
DIRECTIONS OF THIS HON'BLE COURT AND THE POLICE
COMMISSIONER AND BASED ON NON-EXISTENCE OF
GOVERNMENT ORDER DT.12.09.2013 AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25/01/2016 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
The petitioners in both cases are Recreation Clubs registered under the Karnataka Societies Registration Act, 1960, conducting various games for recreation of 5 their members including Fantastic-3 claiming it to be a game of skill, but for the Police it is a game of luck.
2. The petitioners are aggrieved by the raid, seizure of mobiles of their members and money found in the premises at the time of the raid, unnecessary detention of management crew and members of the Club in the police station. Both cases are registered in respect of offences punishable under Section 188 of IPC read with Sections 78(A)(vi), 79 and 80 of the Karnataka Police Act(for brevity, Act). Raid is conducted by the City Crime Branch police (for short, CCB) and report is filed before the SHO of jurisdictional police.
3. Section 188 of IPC pertains to the offence of disobedience of the order duly promulgated by the public servant. Section 188 is invoked for violation of the Government Order No. HD 258 SST 2013, dated 12.09.2013 which is withdrawn long back. 6
4. Sri. V.Laxminarayana, learned Senior Counsel appearing for the petitioners submits that the offences alleged since non-cognizable in nature, registration of the case and investigation of crime by the respondent police is in violation of the mandatory provision of Section 155(1) & (2) of Cr.P.C. The police had no authority to arrest the inmates of the Club without warrant of arrest. Seizure of their private money and mobile phones unconnected to the alleged offence was illegal.
In view of the law laid down by the Apex Court in the case of Arnesh Kumar -vs- State of Bihar and Another reported in (2014) 8 SCC 273, they cannot arrest a person without order of the jurisdictional Magistrate. Fantastic-3 is a game of skill. By violating the provisions of Section 41(1)(a) to (e) of Cr.P.C. and without complying the mandatory of provisions contemplated under Section 41A of the Code, arrest was made thereby denying the opportunity to the petitioners to prove their innocence. Hence, FIR registered by the 7 respondent/police on the report of the CCB police is liable to be quashed and further direction may be issued to the police to implement the direction issued by the Hon'ble Supreme Court of India, further not to interfere with the right of the members of the Club to play Fantastic-3 game by treating the same as game of skill.
5. Learned HCGP does not dispute the fact that the Government Notification dated 12.09.2013(supra) is withdrawn and as of now there is no substitute to Notification(supra). Learned HCGP submits that jurisdiction of the CCB to conduct the raid on the suspicion of any illegal activities being carried in any where within the limits of city of Bengaluru is spread over entire city of Bengaluru. Having raided the spot, arrested the inmates of the building and seized the incriminating material, have filed their report to the jurisdictional police. No encroachment of territorial jurisdiction can be attributed against CCB Police. 8
6. In the light of the above submissions, reverting back to case file, the offence alleged under Section 188 of IPC falls under the classification of non- cognizable offence as per the Schedule to Cr.P.C. The offence alleged under Sections 78(A)(VI), 79 and 80 of the Act, since not punishable with imprisonment for more than three years by virtue of Part II of Schedule to the Code of Criminal Procedure is made non-cognizable in nature.
The procedure for registration and investigation of non-cognizable offences is regulated by Section 155(1) and (2) of Cr.P.C. which reads thus:
"155. Information as to non-cognizable cases and investigation of such cases.- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-
cognizable case without the order of a Magistrate 9 having power to try such case or commit the case for trial".
7. It is not the case of the complainant/CCB police that abruptly they came across the alleged offence and without further delay, they had to raid the Club so that the evidence may not disappear. The Clubs being registered bodies, having a registered office and permanent address and engaged as per their Articles of Association in arranging the recreational activities to their members, disappearance of the evidence before the IO could obtain permission from the jurisdictional Magistrate to investigate the case was too remote. The local police could not have registered the case when the CCB police filed report along with seized articles and produced the inmates of the premise before them. As per procedure contemplated under Section 155(1) of Cr.P.C., they should have referred the complainant to the jurisdictional Magistrate after recording substance of 10 information in the book maintained in the Station for the purpose.
8. The question, as to whether Fantastic-3 is a game of skill or game of luck was considered by the co- ordinate Bench of this Court in Crl.P. No.3317/2014 C/W Crl.P. No.4129/2014. After watching the recorded version of the game on the screen, the petition filed by the Recreation Club was dismissed.
Now, the petition filed against said order is stayed and the matter is before the Apex Court. In that view of the matter, a verdict in these petitions as to whether Fantastic-3 game is a game of skill or game of chance is not warranted.
9. Further as regards procedure of arrest & detention, guidelines have been issued by the Apex Court in the case of Arnesh Kumar (supra), thus:
"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically.11
In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C.
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;12
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years;
whether with or without fine.
13. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance".
10. Detention for unreasonable time that too in respect of non-cognizable offences for no valid reason is mere harassment and it amounts to violation of the fundamental rights of life and liberty guaranteed to the citizens by the Constitution. The Apex Court historically 13 remarked in Joginder Kumar Vs. State, reported in 1994 (4) SCC, 260, thus:
"No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification of it is quite another.... No arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying person his liberty is a serious matter."
Though Arnesh Kumar(supra) was a matter pertaining to the offence punishable under Section 498A of IPC, guidelines issued in all the cases where offences are punishable for less than seven years.
In that view of the mater, Respondent No.1/Home Department is directed to ensure that the judgment of the Apex Court (supra) is strictly 14 abided by the Police Department, at the least from now onwards.
With the above observations, WP No.20659/2015, WP No.16633-16635/2015 are allowed. The FIR in Crime No.143/2015 of Cubbon Park Police Station and the FIR in Crime No.198/2015, registered by the Vijayanagar Police Station, are quashed.
Sd/-
JUDGE JTR