Karnataka High Court
Sri D Narahari vs The State Of Karnataka on 8 August, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF AUGUST, 2013
:BEFORE:
THE HON'BLE MR. JUSTICE B.V.PINTO
CRL.P.NO: 2636/2007
C/w.
CRL.P.NOs.2637/2007,2492/2007,
4855/2007 & 5238/2007
IN CRL.P.NO.2636/2007
BETWEEN:
SRI D.NARAHARI,
SON OF DASAPPA,
AGED ABOUT 46 YEARS,
RESIDENT OF: NO.527,
5TH CROSS, HMT LAYOUT,
R.T.NAGAR,
BANGALORE. ... PETITIONER
(BY SRI TOMY SEBSTIAN, SR. ADV. FOR M/S.TOMY
SEBASTIAN ASSTS.)
AND:
THE STATE OF KARNATAKA,
BY BASAVANAGUDI POLICE STATION,
BANGALORE CITY. ... RESPONDENT
(BY SRI S. DORE RAJU, SPP)
2
THIS CRIMINAL PETITION IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.10395/06 ON THE FILE OF
THE II ACMM., B'LORE CITY, WHICH IS REGISTERED
PURSUANT TO THE ORDER DT.22.4.06 PASSED BY
THE II ACMM., B'LORE, ORDERING REGISTRATION OF
THE CASE AGAINST PETR. FOR OFFENCES U/SS.79
AND 80 OF THE KARNATAKA POLICE ACT AND U/S.420
OF IPC AND ORDER THE DISCHARGE OF THE PETR.
IN CRL.P.NO.2637/2007
BETWEEN:
1. SRI R.JAGANNATH,
SON OF B.H.RAJANNA,
AGED 48 YEARS,
RESIDENT OF: NO.22/9,
4TH MAIN, S.K.GARDEN,
BANGALORE-560 046.
2. SRI T.R.NARENDRA BABU,
SON OF T.R.RAME GOWDA,
AGED 43 YEARS
RESIDENT OF: NO.170,
9TH CROSS, 1ST STAGE,
INDIRANAGAR,
BANGALORE-560 038.
3. SRI JAYANTHI VASANJI FURIA,
SON OF VASANJI FURIA,
AGED 44 YEARS,
RESIDENT OF: NO.210/C,
SHANTHIVAN-11,
3
RAHEJA TOWNSHIP, MALAD EAST,
MUMBAI. ... PETITIONERS
(BY SRI TOMY SEBSTIAN, SR. ADV. FOR M/S. TOMY
SEBSTIAN ASSTS.
AND:
THE STATE OF KARNATAKA,
BY BASAVANAGUDI POLICE STATION,
BANGALORE CITY. ... RESPONDENT
(BY SRI S. DORE RAJU, SPP)
THIS CRIMINAL PETITION IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.10395/06 ON THE FILE OF
THE II ACMM., B'LORE CITY WHICH IS REGISTERED
PURSUANT TO THE ORDER DT.22.4.06 PASSED BY
THE II ACMM., B'LORE, ORDERING REGISTRATION OF
THE CASE AGAINST THE PETRS. FOR OFFENCES
P/U/SS.79 AND 80 OF THE KARNATAKA POLICE ACT
AND U/S.420 OF IPC AND ORDER THE DISCHARGE OF
THE PETRS.
IN CRL.P.NO.2492/2007
BETWEEN:
SRI D.NARAHARI @ BENAKA,
SON OF DASAPPA,
AGED ABOUT 42 YEARS,
RESIDENT OF: NO.527, 5TH CROSS,
HMT LAYOUT, R.T.NAGAR, BANGALORE. .. PETITIONER
(BY SRI TOMY SEBASTIAN, SR. ADV. FOR M/S.TOMY
SEBSTIAN ASSTS.)
4
AND:
THE STATE OF KARNATAKA,
BY HANUMANTHANAGAR POLICE STATION,
BANGALORE CITY. ... RESPONDENT
(BY SRI S. DORE RAJU, SPP)
THIS CRIMINAL PETITION IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.77/07
OF HANUMANTHANAGAR PS., B'LORE, AGAINST THE
PETR.
IN CRL.P.NO.4855/2007
BETWEEN:
SRI D.NARAHARI,
SON OF DASAPPA,
AGED 42 YEARS,
RESIDENT OF : NO.527, 5TH CROSS,
HMT LAYOUT,R.T.NAGAR,
BANGALORE. ... PETITIONER
(BY SRI TOMY SEBASTIAN, SR. ADV. FOR M/S. TOMY
SEBSTIAN ASSTS.)
AND:
THE STATE OF KARNATAKA,
BY VYALIKAVAL POLICE STATION,
BANGALAORE CITY. ... RESPONDENT
(BY SRI S. DORE RAJU, SPP)
5
THIS CRIMINAL PETITION IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.1112/07 ON THE FILE OF
THE MMTC-I, B'LORE CITY, DT.31.09.07, TAKING
CONGNIZANCE OF THE OFFENCES U/Ss.79 AND 80 OF
THE KARNATAKA POLICE ACT, AGAINST THE PETR.
AND ORDERING REGISTRATION OF THE CASE
AGAINST HIM FOR THE SAID OFFENCES AND ORDER
THE DISCHARGE OF THE PETR. IN THE SAID CASE.
IN CRL.P.NO.5238/2007
BETWEEN:
SRI D.NARAHARI,
SON OF DASAPPA,
AGED 42 YEARS
RESIDENT OF: NO.527, 5TH CROSS,
HMT LAYOUT, R.T.NAGAR,
BANGALORE. ... PETITIONER
(BY SRI TOMY SEBASTIAN, SR. ADV. FOR M/S.TOMY
SEBSTIAN ASSTS.)
AND:
THE STATE OF KARNATAKA,
BY KEMPEGOWDA NAGAR POLICE STATION,
BANGALORE CITY. ... RESPONDENT
(BY SRI S. DORE RAJU, SPP)
THIS CRIMINAL PETITION IS FILED U/S. 482
CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.323/2007 ON THE FILE OF
6
THE METROPOLITAN MAGISTRATE TRAFFIC COURT
NO.II, BANGALORE CITY, WHICH IS REGISTERED
PURSUANT TO THE ORDER DATED 24.10.2007,
PASSED BY THE METROPOLITAN MAGISTRATE
TRAFFIC COURT NO.II, BANGALORE CITY, TAKING
COGNIZANCE OF THE OFFENCES UNDER SEC. 79 AND
80 OF THE KARNATAKA POLICE ACT, AS AGAINST THE
PETITIONER AND ORDERING REGISTRATION OF THE
CASE AGAINST HIM AND OTHERS AND ORDER THE
DISCHARGE THE PETITIONER IN THE SAID CASE.
THESE CRIMINAL PETITIONS COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
These petitions are filed seeking to quash the proceedings before the trial Court which are registered for the offences under Section 79 and 80 of the Karnataka Police Act and Section 420 of IPC.
2. Criminal Petition No.2636/2007 is filed by accused No.11 in CC No.10395/2006 pending on the file of the II Additional Chief Metropolitan Magistrate, Bangalore, Criminal Petition No.2637/2007 is filed by accused Nos.10, 12 and 14 in the said case. Criminal 7 Petition No.2492/2007 is filed by accused No.12 in Crime No.77/2007 of Hanumanthanagar police Station now pending as C.C.No.891/2009 on the file of the I Additional Chief Metropolitan Magistrate, Bangalore, Criminal Petition No.4855/2007 is filed by accused No.4 in CC No.1112/2007 pending before the Metropolitan Magistrate Traffic Court-I, Bangalore and Criminal Petition No.5238/2007 is filed by accused No.8 in CC No.323/2007 pending before the Metropolitan Magistrate Traffic Court-II, Bangalore. Since the point involved in these cases are the same, all these matters are taken up together for the purpose of disposal.
3. In Criminal Petition No.2636/2007, Basavanagudi Police have filed the charge sheet in Crime No.338/2005 against the petitioner and thirteen other accused alleging that, on 10.11.2005 at about 2.15 p.m. in the premises of the Shop No.18, Pooja Fashions Readymade Garments situated at DVG Road, 8 Basavanagudi, the accused therein were playing the gambling in respect of the cricket match and on credible information when the police raided the premises it was found that accused Nos.1 to 8 were indulging themselves in the cricket betting. While accused Nos.2 to 6 were speaking with the customers, accused No.1 was running the game and accused Nos.7 and 8 had come to the premises, out of whom accused No.7 had come to claim the prize money, whereas accused No.8 has come to give the money lost by him in the cricket betting. The police have seized the articles used for the commission of the offence of betting in connection with the cricket match which was held on 06.11.2005 between India and Srilanka. Based on the information given by accused Nos.2 to 6, the petitioner is shown as accused No.11 who was arrested from his house and certain materials were seized from his possession. Thereafter after completion of investigation, charge sheet came to be filed. 9
4. Petitioners in Criminal Petition No.2637/2007 are shown as accused Nos.10, 12 and 14 in the very same charge sheet. Their involvement in the said case is also based on the information given by accused Nos.1 to 6 at the time of investigation. However, no property has been seized from the possession of accused Nos.10, 12 and 14. The police have filed the charge sheet. The same is numbered as CC No.10395/2006 before the II Additional Chief Metropolitan Magistrate, Bangalore.
5. In Criminal Petition No.2492/2007, the Hanumanthanagar police raided the premises in the night of 23/24.03.2007 between 7.00 p.m. and 2.30 a.m. at Udupi Corner Condiments situated on the 80 feet road in Hanumanthanagar and the from the said raid, they have arrested nine persons. It is alleged that the accused were gambling in connection with the cricket match between India and Srilanka and were investing lakhs of rupees and betting. Hence, the police registered the case 10 in Crime No.77/2007 for the offence under Section 78 CL (III) of Karnataka Police Act. Subsequently, on the basis of the information given by the said accused, the petitioner is shown as accused No.12 in the said case and it is submitted that the charge sheet has been filed by the police which is numbered as CC No.891/2009.
6. In Criminal Petition No.4855/2007, the Vyalikaval police conducted the raid in pursuance of the directions of the Superior police Officers in the night of 17.04.2007 in the second floor of building No.68 situated in the 4th cross, pipe line, Malleshwaram belonging to one Shivanna. It is alleged that three persons present in the house were betting for the world cup cricket match running in West Indies between England, South Africa and other Countries and that the people were investing money in the act of betting. The Vyalikaval police registered the case in Crime No.70/2007 for the offences under Section 79 and 80 of the Karnataka Police Act 11 against four persons including the petitioner who is arraigned as accused No.4. The petitioner herein was not present at the scene of occurrence and he was arrested on the basis of the information given by other accused. The police after completion of investigation filed the charge sheet and the said case is numbered as CC No.1112/2007 in the Court of Metropolitan Magistrate Traffic Court-I, Bangalore. The petitioner- Narahari was shown as absconding and his involvement was brought on record on the basis of the information given by accused Nos.1 to 3.
7. In Criminal Petition No.5238/2007, the Kempegowdanagar police conducted the raid in the premises of Sri.Annapoorneshwari Auto Consultants situated in No.18/1, 5th Main Road, Nanjamba Agrahara, Chamrajpete, within the jurisdiction of K.G.Nagar police station on 17.10.2006 and while so conducting the raid accused Nos. 1 to 6 therein were present in the premises 12 and were betting in connection with Srilanka and Pakistan International Test Match and on being satisfied that the accused were committing the offences under Section 79 of the Karnataka Police Act they arrested accused Nos.1 to 6 and registered the case in Crime No.164/2006 for the offences under Section 79 and 80 of the Karnataka Police Act and under Section 420 of IPC. During the raid, accused Nos.1 to 6 were arrested, whereas the petitioner herein is shown as accused No.9 in the FIR on the basis of the information gathered from accused Nos.1 to 6. Thereafter the Police have filed charge sheet showing the petitioner as accused No.8. The said case is numbered as CC No.323/2007 and the involvement of the petitioner in this case is also based on the information furnished by the arrested accused persons.
8. Heard Sri.Tomy Sebastian, learned Senior Counsel for the petitioners in all these cases and 13 Sri.S.Dore Raju, learned State Public Prosecutor and Sri.Rajasubramanya Bhat, learned HCGP for the State/respondent.
9. Learned Counsel for the petitioners submits that, in all these cases the petitioners were not present at the time when the alleged raid was conducted by the police and that their involvement was shown on the basis of the statement of other co-accused who are apprehended. Relying upon the ruling of the Hon'ble Supreme Court reported in AIR 1997 Supreme Court 496, (Bandlamuddi Atchutta Ramaiah and others v. State of Andrapradesh) he submits that, the Apex Court has observed that no person can be convicted on the basis of the statement of the co-accused.
10. Secondly, he has further invited the attention of the Court to the Section 2(7) of the Karnataka Police Act which reads as follows:
14
2(7) "Gaming' does not include a lottery but includes all forms of wagering or betting in connection with any game of chance, except wagering or betting on a horse race, (run on any race course within or outside the State) when such wagering or betting takes place:-
i) On the day on which such race is run; and
ii) in an enclosure set apart for the purpose in a race course by licensee of such race course under the terms of the license issued under Section 4 of the Karnataka Race Courses Licensing Act, 1952 (Karnataka Act VIII of 1952) and
iii) between any person being present in such enclosure, on one hand and such licensee or other person licensed by such licensee in terms of the aforesaid licence on the other in such manner and by such contrivance as may be permitted by such licence".15
Explanation- In this clause-
i) 'Wagering or betting"--
xxxxxxxxxxxxxxxxxxxx
ii) "Game of Chance" includes game of chance and skill combined and a pretended game of chance or of chance and skill combined, but does not include any athletic game or sport".
In view of the above explanation (ii) to the definition of the word 'game', in Sec.2(7) of Karnataka Police Act, he has submitted that the cricket being a game as such is excluded from the purview of Section 79 and 80 of the Karnataka Police Act.
11. Thirdly, he further submits that neither the game of sport nor the game of cricket requires the permission from the Government. Therefore, the question of cheating the Government to attract the offence under Section 420 of IPC does not attract in these cases at all. 16
12. It is his further submission that, on the factual aspect the petitioners were never present at the time when the raid was conducted and except the statement of co-accused no other materials are available in the charge sheet to show that the petitioners were involved in the game of betting. Under the circumstances, the charge sheets filed against the petitioners are an exercise in futility and sheer waste of valuable time of the Court. Hence, he submits that the petitions may be allowed.
13. Sri S.Dore Raju, learned SPP on the other hand submits that, the investigation has revealed that the accused including the petitioners were involved in the game of chance in betting for the cricket match. Therefore, it is submitted that the police have filed the charge sheet which shows prima-facie case against the petitioners. Hence, he submits that, the petitions may be 17 dismissed and the petitioners may be directed to face the trial.
14. I have carefully gone through the entire charge sheet materials filed by the prosecution before the Court below. It is seen that in Crl.P.Nos.2636/2007 and 2637/2007 the alleged cricket match had taken place on 06.11.2005 between India and Srilanka and that the investigation including the raid in this case is commenced subsequent to the date of the cricket match. Hence in respect of the game which is already concluded and result of which were known, the question of betting does not at all arise. However, the learned SPP submits that, it is only for the recovery of the prize money of the bets, that the accused were found indulged in. In all the other three petitions, the petitioner was shown as absconding at the FIR stage but was added as an accused while filing charge sheet. However, except the statement of the persons who were arrested and who are shown as 18 accused persons, there are no other witnesses who have stated about the involvement of the petitioners herein. Under the circumstances without entering into any discussion as to whether the cricket betting is covered under Section 2(7) of the Karnataka Police Act, these petitions can be disposed of insofar as these petitioners only are concerned.
15. The Hon'ble Supreme Court has categorically stated in the decision cited supra as follows:-
"The legal position, therefore, is this:
A statement contained in FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. Even as against the accused who made it, the statement cannot be used if it is inculpatory in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in the trial. The very limited use of it is as an admission under Section 21 of the Evidence Act against its 19 maker alone unless the admission does not amount to confession"
Hence the statement of the co-accused cannot be held as against other accused facing trial in the same case. Even otherwise unless the witness enters into the witness box and deposes against any of the accused, his statement before the police cannot be taken into account for the purpose of conviction. In this case, there are no other materials produced by the prosecution to show that the petitioners were found betting earlier to the date of the match and hence the offences under Section 79 and 80 of the Karnataka Police Act are not at all made out from the charge sheet as against these petitioners and hence there are no chances of conviction of these petitioners. Hence, I am of the considered opinion that the continuance of the proceedings against these petitioners are an exercise in futility and would only lead to waste of valuable judicial time and also the time of the petitioners. 20
16. Hence, all these petitions are allowed. The proceedings against these petitioners only in the respective charge sheets are quashed. However these orders shall not have any effect on the progress of the cases against the other accused persons and the said proceedings shall continue in accordance with law.
Sd/-
JUDGE KSR