Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sanat Kumar Jaiswal Alias Sant Kumar on 21 March, 2023
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 21 st OF MARCH, 2023
WRIT APPEAL No. 396 of 2023
BETWEEN:-
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION SARAI DISTRICT SINGRAULI (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI PRASHANT SINGH - ADVOCATE GENERAL WITH SHRI RITWIK
PARASHAR- GOVERNMENT ADVOCATE)
AND
SANAT KUMAR JAISWAL ALIAS SANT KUMAR S/O
CHHOTELAL JAISWAL, AGED ABOUT 26 YEARS,
OCCUPATION: LABOURER VILLAGE ITMA POLICE
STATION SARAI DISTRICT SINGRAULI (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI R.P. GUPTA - ADVOCATE )
This appeal coming on for orders this day, Hon'ble Shri Justice Ravi
Malimath, Chief Justice passed the following:
ORDER
Office objection on maintainability is overruled.
2. This appeal is filed seeking to set aside the orders dated 16.06.2022, 27.07.2022, 29.08.2022, 30.11.2022 and 13.03.2023 passed in M.Cr.C. No.24271 of 2022. These are the orders passed by the learned Single Judge by which the State is aggrieved. Therefore, we do not find it necessary to issue 2 notice to the respondent.
3.(a) M.Cr.C. No. 24271 of 2022 was filed by the respondent seeking for suspension of sentence and bail. During the course of hearing of the petition, an order was passed on 16.06.2022 granting bail to the respondent/applicant and further directions were given to the State. The matter for compliance was directed to be listed on 27.07.2022, 29.08.2022, 30.11.2022 and 13.03.2023. The sum and substance of all these orders is to the effect that a Committee of Senior Secretaries of the State be constituted in order to draft the law with regard to the online gambling and online gaming scheme. The direction was to the Principal Secretary/Additional Chief Secretary (Home) to file affidavit with regard to the said draft. By the order dated 16.06.2022 it was held as follows:-
"This order shall be effective till the end of the trial, however, in case of bail jump and breach of any of the pre-condition of bail, it shall become ineffective.
L et affidavit of the Secretary of Union Law and Legislative Department, Secretary Home, Union of India and Principal Secretary Law and Legislative Department, Government of M.P. be filed before the Registrar General within 30 days' from the date of communication of the order, after examining the scheme and suggesting remedial actions, so to save the youth from being diverted in such activities. Order be communicated by the Registrar General to the concerned authorities.
Let a copy of this order be sent to the Secretary of Union Law and Legislative Department, Secretary Home, Union of India and Principal Secretary Law and Legislative Department, Government of M.P. to examine legality of such online gambling schemes promoted by star players and whether they are just and correct and in accordance with the legal provisions obtaining in the country or there is need to check su ch schemes to save the youth of the country from being diverted to unlawful activities spoiling their career. List this case for compliance on 27.07.2022. These directions are being issued, taking into consideration 3 larger interest of the youth though, this Court is aware of the fact that Union of India is not a party before it. But since Gambling Act is a central act and the online gambling platforms are causing loss of livelihood and alluring youth to participate in illegal activities, therefore, aforesaid directions have been issued requesting the highest officials to file their affidavits after examining the legal position."
(b) By the order dated 29.08.2022 it was stated as follows:-
"Registry is directed to include a feature in the software where any document filed in the High Court will mention apart from filing number, the date and time of filing also so that accountability in the system may be enforced. Registrar General is requested to get this feature incorporated within three working days.
Shri Yadav submits that as per Entry 34 List II of Schedule VII to the Constitution of India, Gambling and betting is a State subject, therefore, State Government is required to file its version and take appropriate steps to prevent unethical practices.
S h r i G.P. Singh, has brought on record an application seeking extension of time on behalf of the State Government duly supported with an affidavit of the Principle Secretary, Government of Madhya Pradesh, Department of Law and Legislative Affairs.
I t is submitted that State is seeking six months extension as after passing of the order in the present case on 16.06.2022, Union of India had convened a meeting of all the Home Secretaries of different States, on 21.07.2022 and now the matter is at the level of Inter State Advisory Committee to decide as to what steps are to be taken in regard to online gaming etc. I t is mentioned in the affidavit that appropriate law/bill is expected at the level of the Central Government and has enclosed copy of communication dated 27.07.2022 as Annexure I(A)-1. This communication is made by the Secretary Home, State of Madhya Pradesh to the Principle Secretary, Law and Legislative Affairs Department, State of Madhya Pradesh, but this communication does not take into consideration submission made by learned Assistant Solicitor 4 General that the issue of gambling and betting is a State subject and covered under Schedule Seven, List II Entry 34 of the Constitution, therefore, information furnished by the Secretary Home that Government of India is soon going to circulate a bill/draft bill on the online gaming appears to be contrary to the submissions made by Shri Yadav, learned Assistant Solicitor General.
I n any case this issue having wider ramifications on the economic, physiological and physical health of youth of the country cannot wait for in inordinately long period, therefore, instead of six months time as prayed by the Principle Secretary, Government of Madhya Pradesh Department of Law and Legislative Affairs, three months time is granted to bring on record concrete/action taken report. Registry is directed to reflect the name of Assistant Solicitor General for the Union of India in the cause list. List for further hearing on 30.11.2022."
(c) By the order dated 30.11.2022, it was held as follows:-
"Learned counsel for the Union of India submits that Union of India has examined this matter and according to Union of India, this matter is a State subject under Schedule-7 of the Constitution of India and therefore the subject being covered under the State List, State is required to legislate. Shri Shiv Kumar Shrivastava, learned Government Advocate submits that this matter was taken into consideration by a Committee of Senior Secretaries of the State and they have sought 3 months' time to prepare appropriate legislation and get it clear from the legislative assembly. This request of Shri Shiv Kumar Shrivastava, Government Advocate is accepted.
List this case on 13.03.2023."
(d) Thereafter, by the order dated 13.03.2023, it was held as follows:-
"H ea rd on I.A. No. 3199/2023 presented on 4/02/2023 seeking recall of the order dated 30/11/2022 whereby this court had given three months time on request of Shri Shiv Kumar Shrivastava, learned Government Advocate to prepare appropriate legislation and get it clear from the Legislative 5 Assembly.
This time was granted on the request of learned Government Advocate who had committed that a committee of Senior Secretaries of the State was constituted to do the needful. The State has neither filed copy of the draft prepared by the committee of Senior Secretaries of the State nor any material to show as to when that draft was presented to the Legislative Assembly for discussion and they have also not produced any copy of agenda note of the Assembly to show that bill is to be taken up for consideration of the house on a particular date. L et an affidavit of the Principal Secretary/ Additional Chief Secretary (Home) be filed in this regard enclosing a copy of the draft prepared by the so called committee of the Senior Secretaries of the State and whether any comments were sought on that proposed draft and when it is proposed to be placed before the State Assembly for discussion and voting. Let this affidavit be filed by the Secretary/Additional Chief Secretary (Home) within seven days from today. List this case on 21st March, 2023 failing which this court may be constrained to order for personal presence of the Principal Secretary/Additional Chief Secretary (Home). The application I.A. No. 3199/2023 is rejected as it is devoid of necessary details."
(e ) Therefore, it is pleaded that the learned Single Judge exceeded his jurisdiction in passing such orders.
4. That firstly, the matter was pertaining to grant of bail. Therefore, the learned Single Judge should have restricted himself only to the same. However, he has issued directions with regard to framing of a statute directing the Secretaries to form a Committee, directing them to get the approval from the State Government and to enact the law. This we find is an exercise by the learned Single Judge which is beyond his jurisdiction. We are of the view that when the matter pertains to grant of bail or otherwise that is the only jurisdiction that the Court can exercise namely as provided under Section 439 of the 6 Cr.P.C. The learned Single Judge obviously went beyond his jurisdiction in issuing such directions. We have no hesitation to hold that such directions are beyond the scope of law. The learned Single Judge could not have issued these directions. That since the directions are without any authority of law and beyond jurisdiction of the learned Single Judge, the same are set aside. The portion of the order dated 16.06.2022 passed in M.Cr.C. No. 24271 of 2022 to the extent extracted hereinabove is set aside. The orders dated 27.07.2022, 29.08.2022, 30.11.2022 and 13.03.2023 passed in M.Cr.C. No.24271 of 2022 are also set aside. The writ appeal is accordingly allowed.
5. As a consequence of setting aside the aforesaid orders, M.Cr.C. No. 24271 of 2022 is disposed off. No further orders are called for in the aforesaid M.Cr.C. (RAVI MALIMATH) (VISHAL MISHRA) CHIEF JUSTICE JUDGE MSP Digitally signed by MANVENDRA SINGH PARIHAR Date: 2023.03.27 17:23:06 +05'30'