Telangana High Court
Madikonda Anjaiah Ajay vs The State Of Telangana And Another on 26 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.4151 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner-accused No.2 to quash C.C.No.170 of 2018 on the file of learned XVII Additional Chief Metropolitan Magistrate at Hyderabad, the cognizance of which was taken on file for the offence under Sections 3 and 4 of the Andhra Pradesh Gaming Act, 1974.
2. The facts in brief as can be seen from the record available before the Court are as under:
a) On 19.01.2018 at 11.55 PM respondent No.2 Sub Inspector of Police, Jubilee Hills Police Station has lodged a complaint alleging that on 19.01.2018 at 9.30 PM on receipt of credible information that some persons are playing three cards game in second floor of H.No.8-3.-231/B/18, Sri Krishna Nagar, Yousufguda, Hyderabad and using the premises as common gaming house, he appraised the said information to his superiors and obtained authorization memo from ACP, Banjara Hills Division, Hyderabad. Accordingly, he summoned two mediators and proceeded to the above mentioned place along 2 with his staff at 10.20 PM, wherein he found six persons playing three cards game, which is a chance of betting with money and using the said premises as common gaming house.
b) The de-facto complainant has served search proceedings under Section 165 of the Code of Criminal Procedure on the said persons, who were holding three playing cards each and some cards and cash in the centre was available and on seeing the Police, they thrown away the cards in the middle and tried to flee away from the spot but they were apprehended. The de-facto complainant has recorded the confession cum seizure panchanama of Accused No.1 i.e., Naga Praveen Kumar Vusa, who confessed that he has been organizing gaming house by charging Rs.200/- for each game from each player and that a specially designed phone with software which predicts the person, who will win the game and with such phone he used to cheat his own friends. He also confessed that he purchased the said phone and two sets of playing cards from New Delhi.
Accused No.1 confessed that he along with his friends gathered in the house of his friend i.e., accused No.2 and were playing three cards game. The de-facto complainant has seized cash of Rs.22,000/- and black colour mobile phone equipped with card scanner from the possession of accused No.1 and pasted the 3 signed panch chits on them. The de-facto complainant has seized cash of Rs.2,000/- and I Phone - 5 mobile phone from accused No.2, cash of Rs.6,000/- and one I Phone - 6 from accused No.3, Rs.8,000/- and one Samsung mobile phone without back panel from accused No.4, Rs.10,000/- and one Samsung duos mobile phone from accused No.5, Rs.9,000/- from accused No.6 and Rs.6,000/- and 106 playing cards from the centre, which were seized from the room in the presence of mediators. The total items seized from the accused are cash of Rs.63,000/-, five mobile phones and 106 playing cards from their possession. The accused along with seized material were produced before the Station House Officer, Jubilee Hills.
c) Based on the said complaint, a case in Crime No.40 of 2018 was registered for the offence under Section 420 of the Indian Penal Code and Sections 3 and 4 of the A.P. Gaming Act. After completion of investigation, the investigating agency has filed charge sheet, which was numbered as C.C.No.170 of 2018 on the file of learned XVII Additional Chief Metropolitan Magistrate at Hyderabad. Aggrieved by the same, the present petition is filed by petitioner-accused No.2 seeking quashment of C.C.No.170 of 2018 on the following grounds: 4
i) The investigating officer LW8 being the de-facto complainant cannot investigate and file charge sheet.
ii) The petitioner-accused No.2 is a student and preparing for competitive examination and nothing to do with the scene of offence house, which is a residential house and cannot be called as a common gaming house.
iii) The using of 106 playing cards will be used only for rummy game, a skilled game and not for a game of chance.
iv) The facts of the case does not disclose any offence or ingredients of Sections 3 and 4 of the A.P. Gaming Act, which cannot be made applicable to the State of Telangana.
4. Heard Sri S.Madan Mohan Rao, learned counsel mfor the Petitioner-accused No.2 and Sri S.Ganesh, learned Assistant Public Prosecutor and perused the record.
5. Now the point for determination is:
"Whether the proceedings against the petitioner-accused No.2 in C.C.No.170 of 2018 on the file of learned XVII Additional Chief Metropolitan Magistrate at Hyderabad, can be quashed under Section 482 of the Code of Criminal Procedure?
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6. In order fasten the criminal liability under Sections 3 and 4 of the A.P. Gaming Act, the de-facto complainant has to establish that whoever is found gaming or present for the purpose of gaming in a common gaming house shall be punished. Section 3 of the A.P. Gaming Act runs 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 -
(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).] 6 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 that any person found therein was gaming for money, wager, bet or stake."
7. 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."
8. As per the charge sheet, the petitioner-accused No.2 is charged for the offence under Sections 3 and 4 of the A.P. Gaming Act. As per Section 2 (1) of the Act, the definition of common gaming house is as under:
"(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 7
(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 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."
9. 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. Admittedly, the place, where the offence was committed is a residential house of accused No.2. In order to fasten the liability under Section 2(1)(ii) of the A.P. Gaming Act, in order to 8 consider the house of accused No.2 as common gaming house, it is to be proved that the person in-charge shall charge for using the said premises for gaming. The petitioner-accused No.2 being owner of the property has to charge from other accused for using the said premises as gaming house. The petitioner-accused No.2 was organizing gaming house allegedly by collecting Rs.200/- for each game from each player. Therefore, the contention of learned counsel for the petitioner- accused No.2 that scene of offence is a residential house and cannot be called as a common gaming house, cannot sustain.
10. Learned counsel for the petitioner-accused No. 2 has submitted that the investigating officer LW8 being the de-facto complainant cannot investigate and file charge sheet. In Mohan Lal v. State of Punjab1, the Hon'ble Supreme Court held as follows:
"It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also.
Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof."
1 2018 Law Suit (SC) 768 9
11. In Bahgawan Singh v. The State of Rajasthan2, the Hon'ble Supreme Court held as follows:
"In fact, Head Constable Ram Sing., being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorised to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the first information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case."
12. In Xavier v. State of Kerala3, the High Court of Kerala held as follows:
"Now, the only point that arises for consideration before me is whether PW1, being the complainant can be an investigating officer throughout and whether he can file the final report. In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher officials. A Complainant being police officer cannot be an investigating officer. For, in 2 AIR 1976 Supreme Court 985 3 1998 CRI.L.J. 3182 10 such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating the previous information recorded U/S. 154 and 155 Cr.P.C. and previous statements of witnesses, being a police officer, complaint recorded, under S.161 Cr.P.C., enjoined in Ss.145 and 157 of the Indian Evidence Act and proviso of S.162, Cr.P.C. In the instant case, before me, PW1 is an Assistant Sub Inspector of Police and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other Police officer above the rank of PW1. In the instant case, thus, an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner."
13. In view of the principle laid down in the above said authority, it is evident that the de-facto complainant being a Police Officer cannot be the complainant, investigate and file charge sheet. Similarly, in the case on hand also the de-facto complainant is none other than the Sub Inspector of Police, Jubilee Hills Police Station, who has raided the scene of offence 11 house and subsequently conducted investigation, seized the material objects under confession cum seizure panchanama and finally filed final charge sheet. So, the above said authorities are squarely applicable to the facts of the case on hand. Thus, on this ground alone, continuation of proceedings against the petitioner-accused No.2 amounts to abuse of process of law.
14. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner-accused No.2 in C.C.No.170 of 2018 on the file of learned XVII Additional Chief Metropolitan Magistrate at Hyderabad are hereby quashed.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 26.09.2022 AS