Telangana High Court
Tholem Narsimha Rao, Kothagudem Ano vs P.P., Hyd Ano on 26 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE Dr. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.9687 of 2016
ORDER :
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, by the petitioners - accused Nos.6 and 7 to quash the proceedings in C.C.No.199 of 2016 pending on the file of the learned III Additional Judicial First Class Magistrate, Kothagudem, against them and the cognizance of which was taken for the offences under Sections 3 and 4 of Andhra Pradesh Gaming Act, 1974 (Telangana Gaming Act, 1974) (for short 'the Gaming Act').
2. The facts in brief as can be gathered from the record available before this Court are as under:
a) On 30.05.2016 at 11.00 PM, Sub-Inspector of Police, III Town Police Station, Kothagudem, received credible information that some persons have been playing cards in an abandoned Railway Quarter bearing No.18/3, Kothagudem. On that, he rushed to the scene of offence along with mediators after obtaining necessary permission from his superiors. On entering into the said premises, they found that gambling was Dr.DNR, J Crl.P.No.9687 of 2016 2 going on and all eight persons were playing cards by staking amount.
(b) On interrogation, all the accused have confessed that they committed offences. Confession Statement has been recorded in the presence of mediators. All of them have confessed that one Jara Sreenivasu-Accused No.1 has called his friends (A-2 to A-8) to come to the condemned Railway Quarter for playing cards by betting money. They found Rs.2,200/-. He has taken all the accused to Police Station along with confession statement and basing on the said confession statement, a case has been registered in Crime No.149 of 2016 and investigation is taken up by the Inspector of Police. Statements of witnesses were recorded and on completion of investigation, charge-sheet is filed under Sections 3 and 4 of A.P.Gaming Act. The total amount seized from accused Nos.1 to 7 was Rs.13,930/-, 52 playing cards and four mobile phones are also seized under the cover of panchanama.
3. Aggrieved by taking the cognizance against petitioners-
accused Nos.6 and 7, this petition is filed on the ground that no offence is made out against them as there is no mention of the opening of a common gaming house and none of the accused Dr.DNR, J Crl.P.No.9687 of 2016 3 persons was the owner of the condemned railway quarter and thus, sought quashment of proceedings in C.C.No.199 of 2016 against them.
4. Heard learned counsel for the petitioners as well as learned Assistant Public Prosecutor, who represents respondent No.1- State. Perused the record.
5. Now the point for determination is:
"Whether the proceedings against petitioner- accused Nos.6 and 7 in C.C.No.199 of 2016 pending on the file of the learned III Additional Judicial First Class Magistrate, Kothagudem, can be quashed under Section 482 of the Code of Criminal Procedure?"
6. On the allegation that the petitioners-accused Nos.6 and 7 along with other accused have found playing Cards at the condemned Railway Quarters bearing No18/3, Kothagudem, they were charged for the offences under Sections 3 and 4 of the Gaming Act. In order to fasten the criminal liability under Section 4 of the Gaming Act, the prosecution is expected to allege and place material that they were found playing Cards in gaming house as defined under Section 3 of the Gaming Act.
Dr.DNR, J Crl.P.No.9687 of 2016 4
7. Section 3 of the Gaming Act, reads as under:
3. Penalty for opening, etc., a common gaming house - 1[(1) Any person who opens, keeps, operates, uses or permits to be used any common gaming house or online gaming or conducts or assists in conducting the business of any common gaming house or advances or furnishes money for gaming therein, shall be punishable
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(i) For the first offence, with imprisonment for a term which may extend to one (1) year and with fine which may extend to Rs.5,000/- (Rupees Five Thousand only); but in the absence of special reasons to be recorded in writing, the punishment awarded under this clause shall be imprisonment for not less than three (3) months and fine of not less than Rs. 3,000/- (Rupees Three Thousand only);
(ii) For every subsequent offence, with imprisonment for a term which may extend to two (2) years and with fine which may extend to Rs.10,000/-
(Rupees Ten Thousand only), but in absence of special reasons to be recorded in writing the punishment awarded under this clause shall be -
(a) For a second offence, imprisonment for not less than six (6) months and fine of not less than Rs.5,000/- (Rupees Five Thousand only);
(b) For a third or subsequent offence, imprisonment for not less than one (1) year and fine of not less than Rs.10,000/- (Rupees Ten Thousand only).] Dr.DNR, J Crl.P.No.9687 of 2016 5 Explanation: - For the purpose of this section, the expression "person" includes the owner, or as the case may be, the occupier of the place used as a common gaming house and where such place belongs to or is occupied by a club, society or other association of persons, the person having the care or management of such place.
(2) It shall not be necessary, in order to convict any person for opening, keeping or using or permitting the use of common gaming house or of being concerned with the care or management of a common gaming house, to prove to prove that any person found therein was gaming for money, wager, bet or stake.
8. Similarly, Section 4 of the A.P.Gaming Act, runs as under:
"4. 3[Penalty for being found gaming in a common gaming house - Whoever is found gaming or present for the purpose of gaming in a common gaming house shall, on conviction, be punishable with imprisonment for a term which may extend to six (6) months or with fine which may extend to Rs. 3,000/- (Rupees Three Thousand only) or with both.] 1. Substituted by the Act No. 43 of 2020, S.3. 2. Inserted by the Act No. 43 of 2020, S.4. 3. Substituted by the Act No. 43 of 2020, S.5. Explanation:- For the purpose of this section, any person found in any common gaming house during gaming therein shall be presumed to have been present there for the purpose of gaming."
9. As per Section 2 (1) of the Act, the definition of common gaming house is as under:
Dr.DNR, J Crl.P.No.9687 of 2016 6 "(1) 'common gaming house', means -
(i) in the case of gaming -
(a) on a horse-race except in the manner provided in clause (2); or (b) on the market price of cotton, bullion other commodity or on the digits of the number used for stating such price; or
(c) on the ground of variation in the market price of any commodity specified in item (b) or on the digits of the number used for stating the amount of such variation; or
(d) on the market price of stock or share or on the digits of the number used for stating such price; or
(e) on the number of registration or on the digits of the number of registration of any motor vehicle using a public place; or
(f) on any transaction or scheme of wagering or betting in which the receipt or distribution of winnings of prizes, in money or otherwise, is made to depend on chance, any house, room, tent, enclosure, vehicle, vessel, 1[cyber space] or any place whatsoever in which the gaming takes place or in which the horses or other instruments of gaming, are kept or used for such gaming;
2["(ii) in the case of any other form of gaming, any house, room, tent, enclosure, vehicle, vessel, cyber space or any place whatsoever in which any instrument of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel, cyber space or any place whether by way of charge, for the Dr.DNR, J Crl.P.No.9687 of 2016 7 use of such house, room, tent, enclosure, vehicle, vessel, cyber space or any place or instruments of gaming or otherwise howsoever;
Explanation:- For the purpose of clause(ii), any premise or place or cyber space belonging to or occupied by a club, society, company or other associations of persons, whether incorporated or not, which is used or kept for the purpose of gaming shall be deemed to be a common gaming house notwithstanding that there is no profit or gain for the club, society, company or other associations of persons on account thereof."
10. Therefore, in order to fasten the liability under Section 3 of the A.P.Gaming Act, the prosecution is expected to prove that the place, where the raid was done is a common gaming house.
In order to consider a place as common gaming house as defined under Section 2(1) of Gaming Act, the prosecution is expected to prove that the premises where the gaming was being conducted, shall be a house, room, etc., which is used for profit or gain for occupying the same for playing Cards. That means, in order to prove the place, where the petitioners-accused Nos.6 and 7 were allegedly playing the Cards, the person, who is in-charge and was in possession of the subject premises was permitting the petitioners-accused Nos.6 and 7 to use the said premises on some payment/remuneration and that the person, who is in-
Dr.DNR, J Crl.P.No.9687 of 2016 8 charge of premises shall collect money for permitting to use the said premises for gaming purpose.
11. In Bhimrao Trimbakrao Ingle v. State of Maharashtra1 the Hon'ble Supreme Court held as follows:
"Even though on an appreciation of evidence adduced by the prosecution the Sessions Court came to the conclusion that the prosecution had failed to establish that Appellant No. 6 was deriving any profit or gain by way of charges for the use of the room in question and that accordingly it was not a 'common gaming house', the Court strangely enough held that it was a common gaming house within the meaning of Section 3(ii) of the Act by reason of the presumption under Section 7 of the Act. What was held to be 'not' a 'Common Gaming House', having regard to the fact that evidence adduced by the prosecution was considered unacceptable could not have been held to be a common gaming house by recourse to the presumption under section 7. The presumption is a rebuttable presumption which was not required to be rebutted by the defence inasmuch as the prosecution evidence was discredited and rejected and the presumption stood rebutted on that account. What is not a 'common gaming house' in fact in the light of evidence cannot become a common gaming house by reason of a presumption under section 7. The reason is neither far to seek nor obscure. What the prosecution is required to establish by recourse to the presumption is that the room is a 'common gaming house' as defined in the dictionary of Section 3(ii) that is to say that the occupier is 1 1986 (4) SCC 91 Dr.DNR, J Crl.P.No.9687 of 2016 9 collecting charges for the use of the room. When evidence in adduced and the prosecution fails to establish that such charges are in fact collected, how can the Court hold in the face of its own finding that such charges are collected, that even so it is a 'common gaming house' because of the presumption? The Sessions Court was in error in convicting the appellants for an offence under Section 5 which can be committed only provided the persons concerned were gaming or were present for the purpose of gaming in a 'common gaming house'. The High Court was in error in failing to appreciate the import of the said finding recorded by the Court on the basis of the appreciation of evidence that in fact it was not a 'common gaming house' as found by the Sessions Court, and confirmed by the High Court. None of the appellants could therefore be convicted for an offence under Section 5. The appeal is, therefore, allowed. The order of conviction and sentence is set aside."
12. In Jagat Singh Kishor Singh Darbar v. The State Of Gujarat2 the Hon'ble Supreme Court held as follows:
"We fully agree with the High Court that the expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted in its scope by the words immediately preceding it which lay down that the profit or gain may be by way of charge for the use of the premises. In this connection we may usefully quote from the judgment of Shah, Acting C.J., who delivered the judgment of the Division Bench in Emperor v. Dattatraya Shankar Paranjpe, (Supra).
2 1979 (4) SCC 307 Dr.DNR, J Crl.P.No.9687 of 2016 10 "It is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in the house, room or place for profit or gain of the person owning, occupying, using or keeping the house, room or place. It may be done by establishing that the person did so either by a charge for use of the instruments of gaming or of the house, room or place, or otherwise howsoever. The (1) 25 Bombay Law Reporter 1089 = A.I.R. 1924 Bombay 184.
(2) 47 Bombay Law Reporter 75 = A.I.R. 1945 Bombay 305.
expression "otherwise howsoever" appears to be very comprehensive, and does not suggest any limitation, such as is contended on behalf of the accused." ...... ....... .... ........ ....... ............ ...... ....... .... ........ ....... ............ "We have heard an interesting argument on the question as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned Judge of the Allahabad High Court; and after a careful consideration of the arguments urged on either side, and with great respect to the learned Judges, I have come to the - conclusion that the words of the definition which we have to construe here would not have their full meaning if we were to accept the narrow construction. I do not think that on a proper construction of the definition the prosecution can be restricted for the purpose of proving that a particular house, room or place is a common gaming house, to the two alternatives mentioned in the case of Lachchi Ram v. Emperor('). It is sufficient if the house is one in which instruments of gaming are kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knows that profit or gain 4 15 Will in all probability result from the use of the Dr.DNR, J Crl.P.No.9687 of 2016 11 instruments of gaming. The profit or gain may not actually result from such use. But if profit or gain is the probable and expected result of the game itself-and if that is the purpose of keeping or using the instruments, it would be sufficient, in my opinion, to bring the case within the scope of the definition. At the same time it is clear that the prosecution must establish that the purpose is profit or gain. This may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house, room or place, or in any other manner that may be possible under the circumstances of the case, having regard to the nature of the game carried on in that house." The opinion of Shah, Acting C.J., was noted with approval in Emperor v. Chimanlal Sankalchand (supra), the reasoning adopted in which may be reproduced with advantage:
"Lachchi Ram's case was considered by a Division Bench of this Court in Emperor v. Dattatraya (1923) 25 Bombay (1) A.l.R. 1922 All. 61.
Law Reporter (1089) and was dissented from. It was held that to constitute a common gaming house it was sufficient if it was one in which instruments of gaming were kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming. The profit or gain may not actually result from such use. But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments, it would be sufficient to bring the case within the scope of the definition. C "It is argued by Mr. Pochaji on behalf of the accused that even Dr.DNR, J Crl.P.No.9687 of 2016 12 in that case it was observed that 'the prosecution must establish that the purpose was profit or gain and that that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner.' The words 'or in any other manner,' (which were used there instead of the words appearing at the end of the definition' 'or otherwise howsoever') cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis with what pre cedes those words, and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house. It may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making a profit, although he may not necessarily make it every time. Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house."
We fully agree with the interpretation of the definition of the term "common gaming house" occurring in section 3 of the Bombay Act as propounded in, the two Bombay authorities cited above, as also in the impugned judgment, that interpretation being in conformity with the unambiguous language employed by the legislature. The opinion to the contrary expressed in Lachchi Ram's case (supra) and in other decisions is found to be incorrect.
6. The learned counsel for the appellants concedes that if the interpretation placed on clause (ii) of the definition by the impugned judgment be upheld, the conviction of the Dr.DNR, J Crl.P.No.9687 of 2016 13 appellants in the two appeals is well-founded. However, we may state that there is another good reason for upholding the conviction and that flows from the presumption which has to be raised under section 7 of the Bombay Act which states:
"When any instrument of gaming has been seized in any house, room of place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that the Police Officer who entered such house, room or place had reason able grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming- house and the persons found therein were then present for the purpose of gaming, although no' gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them:
Provided that the aforesaid presumption shall be made, notwithstanding any defect in the warrant or order in pursuance of which the house, room or place was entered under section 6. if the Court considers the defect not: to be a material one."
It is not disputed that instruments of gaming were seized from the premises in question in both the appeals. That circumstances, according to the section, "shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming-house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen .. " . The profit or gain mentioned in Dr.DNR, J Crl.P.No.9687 of 2016 14 clause (ii) of the definition and also the other requirements of that clause are a matter of peremptory presumption which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case here. Admittedly, there is no evidence in rebuttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the appellants.
7. In the result both the appeals fail and are dismissed."
13. In the case on hand, there are no allegations on the petitioners that they have been paying some amounts to a third person for using the said premises for gaming purpose.
According to the prosecution, the place where they are playing Cards is a dilapidated railway quarters. As it is a dilapidated railway quarters, without electricity or light, there was nobody to collect amount and indeed nobody was in possession of the property and the accused were playing cards in the candle lights.
14. In view of the principle laid down in the above said citations, it cannot be said that the petitioners-accused Nos.6 and 7 have committed the offence under Section 3 of the A.P.Gaming Act, more particularly when there is no person, who was in-charge and in possession for collecting money towards usage charges. Therefore, Section 3 of the A.P.Gaming Act Dr.DNR, J Crl.P.No.9687 of 2016 15 cannot be fastened on the petitioners-accused Nos.6 and 7 as the house, wherein they are alleged to have been playing Cards is not a gaming house.
15. The petitioners-accused Nos.6 and 7 were charged for the offence under Section 4 as well as Section 3 of the A.P. Gaming Act. Therefore, it is to be examined whether facts narrated by the prosecution would amount to committing of an offence under Section 4 of the Act. In the case on hand, according to the prosecution, the petitioners were present for the purpose of gaming in a common gaming house shall on conviction may suffer for simple imprisonment for six months, which may extend to three years. Unless the place of the offence is specified to be a common gaming house, Section 4 of the A.P.Gaming Act will not attract.
16. Considering the circumstances, the premises where the petitioners were playing Cards, cannot be termed as a gaming house as defined under Section 2 (1) of Gaming Act, since it is not a gaming house Section 3 of the Gaming Act is not applicable, thereby the petitioners cannot be punished for the offence punishable under Section 4 of A.P.Gaming Act.
Dr.DNR, J Crl.P.No.9687 of 2016 16
17. Accordingly, the Criminal Petition is allowed. The proceedings that are pending against the petitioners-accused Nos.6 and 7 in C.C.No.199 of 2016, on the file of the learned III Additional Judicial First Class Magistrate, Kothagudem, are hereby quashed.
Pending Miscellaneous Applications, if any, shall stand closed.
_____________________ Dr. D.NAGARJUN, J Date: 26.09.2022 svl