Rajasthan High Court - Jodhpur
Kamlesh & Anr vs State & Anr on 4 July, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 795 / 2014
1.Kamlesh solanki S/o Ummaid Raj, by caste Mali, aged 34 years,
R/o Sadar Bazar, Ab Road, District Sirohi.
2. Ajaz Khan S/o Iqbal Khan, aged about 21 years, by caste
Muslim, R/o Kishanganj, Abu Road, District Sirohi.
----Petitioner
Versus
1 State of Rajasthan.
2. Sita Ram Khoja, Sub Inspector of Police, SHO Police Station
Abu Road City, District Sirohi.
----Respondent
____________________________________________________
For Petitioner(s) :Mr. Surendra Surana
For Respondent(s) :Mr. VS Rajpurohit, PP
____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 04/07/2017
1. Petitioners have preferred this misc. petition under Section 482 of Cr.P.C. 482 of Cr.P.C. in FIR No.66/2014 Police Station Abu Road City, District Sirohi pertaining to offence under Section 13 Rajasthan Public Gambling Ordinance, 1949.
2. The brief facts of the complaint were that SHO Police Station Abu Road City on 20.03.2014 registered a case bearing CR No.66/2014 against the petitioners and five other persons, the team of police reached the shop of one Robert @ Fakruddin at 12.30 A.M. in night and searched his residential room situated above the shop after opening its door and found that 8 persons were playing gambling game by plastic pieces and one person escaped with the currency notes.
3. Counsel for the petitioner made a limited argument that as per Section 13 of Rajasthan Public Gambling Ordinance 1949, the offence is made out only if it is a public place.
4. Learned Public Prosecutor drew attention of this Court to his written submission particularly para No.2 which reads as under :-
" Brief Facts of the case that on 21.03.2014 at 12.30 a.m. the SHO along with police force on the basis of Mukhbir information and obtaining search warrant reached the shop of Robart @ Fakrudeen Batterwale situated near the Vishnu Takij then the door of the room constructed over the said shop was partly opened and found that inside the room eight persons were playing gambling game by plastic pieces. On seen the police party tried to run away, out of which one person namely Ishwar Singh posted at police Station Abu Road Sadar took the amount and having advantage of darkness he run away, after following the due process of law remaining persons were arrested and on asking their name they disclosed their names as Abdul Razzak, Shri Jai Kumar, Ghudhu @ Firodsh Khan, Shri Robart @ Fakrudeen, Shri Azaz Khan, Shri Kamlaish and Shri Matlub Khan. During the search recovered Rs. 13,800/- from the possession of accused persons, it is submitted that the accused persons described the process of said gambling in which one person lost the money and another won the said money, therefore, this process/act punishable under Section 13 of R.P.G.O.. "
5. After hearing counsel for the parties and Section 13 of the Rajasthan Public gambling Ordinance 1949 as well as going through the complete submissions, it is apparent that the Act in question was in a private room belonging to the accused persons over the shop in which they were gambling with certain plastic pieces. Section 13 of the Rajasthan Public Gambling Ordinance 1949 which reads as follows :-
"13. Gaming and setting birds and animals to fight in public streets ; Destruction of instrument of gaming found in public streets.- A police officer may apprehend without warrant any person found gaming in any public street, place, or thoroughfare; or Any person setting any birds or animals to fight in any public street, place or thoroughfare;
or Any Person there present aiding and abetting such public fighting of birds and animals;
Such person, when apprehended shall be brought without delay, before a magistrate, and shall be liable to a fine not exceeding [one hundred rupees.] or to imprisonment either simple or rigorous for any term not exceeding [one month].
Any such police officer may seize all instruments of gaming found in such public place or on the person of those whom he shall so arrest and the magistrate may on conviction of the offender order such instruments to be forthwith destroyed. 29 3 Explanation.-For the purposes of this section, the term "public place "shall also include a place to which the members of public or any section thereof have open access, whether as of right or otherwise."
6. It becomes clear that the legislative intention of Section 13 was prima facie to restrict the gambling at a public place and the ordinance itself is titled Rajasthan Public Gambling Ordinance which means that the legislative intention was to restrict the gambling at public places. By no piece of factual averment, evidence, document, allegation, version of the police and any other documents the respondents could prove that the alleged incident happened in public place once it is not disputed by the investigating authority and the respondents that the incident in question was in a private personal residential room over the shop of one of the accused persons then the basic ingredients of the offence to have been constituted under Section 13 of Rajasthan Public Gambling Ordinance Act is not made out. Since, the incident is not made out under Section 13 and clearly the prosecution story would not bring it into the ambit of the offence on the face of it itself and on bare reading of the allegation itself, the offence is not made out under Section 13 of the Rajasthan Public Gambling Ordinance, therefore, this Court deems it appropriate to allow the present misc. petition and quash the entire proceedings arising out of FIR No.66/2014 Police Station Abu Road City, District Sirohi.
7. With the aforesaid discussion, the misc. petition is allowed.
(DR. PUSHPENDRA SINGH BHATI)J. sudheer