Allahabad High Court
Sudeep Agarwal vs State Of U.P. And Another on 5 December, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 18.11.2022 Delivered on 05.12.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 21007 of 2022 Applicant :- Sudeep Agarwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shambhawi Shukla,Rajrshi Gupta,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant before this Court is the owner of a Hotel, namely, Silver Pearl at Meerut. On a secret information that in the Hotel illegal gambling activities were going on with regard to Satta on an IPL match between two teams, with permission of higher officials, a raid was conducted by police personnels where in Room No. 106, four persons were apprehended with electronic instruments, such as laptops, mobile phones with specific software and money while they were found into gambling (online Satta). One of the person apprehended was Manager of said Hotel. FIR was lodged and rurther investigation was conducted wherein an employee, Clerk of Hotel, a co-accused, informed police that room was opened for purpose of gambling on specific instruction of applicant, owner of said Hotel. In guest register no details of guests were mentioned. After completion of investigation a charge sheet No. 276 of 2021 dated 17.09.2021 was filed in Case No. 19483 of 2021 (State vs. Ashish and others), arising out of Case Crime No. 673 of 2020, Police Station Civil Lines, District Meerut for the offences under Sections 3/4 of Public Gambling Act, 1867 and Section 66 of Information Technology (Amendment) Act, 2008.
2. Sri Rajrshi Gupta, learned counsel for applicant, in support of his prayer to quash the charge sheet, cognizance order, summoning order and further proceedings against applicant, vehemently argued that applicant, owner of Hotel, was not arrested from Hotel. Only evidence against him is a statement given to Police by a Clerk of Hotel (co-accused) that he was instructed by applicant to allow accused persons to conduct illegal gambling in the room of Hotel. Said evidence is absolutely inadmissible in the eyes of law. Only being owner of Hotel vicarious liability cannot be imposed on applicant without any other evidence directly or indirectly connecting him with alleged crime.
3. Learned counsel for applicant put up much stress on contents of Sections 3 and 4 of Public Gambling Act, 1867 that owner can be liable only when he knowingly or wilfully permits to open, occupy or use a place as a common gaming house, whereas in present case neither there was an allegation of a hotel room being used as a gaming house nor any allegation of permission granted by applicant to use Hotel or room as a gaming house. He also placed reliance on Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
4. Learned counsel further argued that ingredients of Section 66 of Information Technology (Amendment) Act, 2008 are also not satisfied as it is with regard to computer related offences and there is no allegation that applicant dishonestly or fraudulently does any act referred to in Section 43 of Act which are related to penalty and compensation for damages to computer systems etc. as there is no allegation that applicant himself, without any permission of owner, excess to any computer or computer system.
5. Per contra, Sri Munne Lal, learned AGA appearing for State, has argued at length that there are very serious allegations against applicant. He, being owner of Hotel, has permitted accused persons including staff of Hotel to conduct illegal gambling, i.e., Satta on an IPL match. The computer systems and other instruments used for the purpose of illegal gambling as well as phone and computers with particular software for online Satta and a register with details of Satta were recovered from room of the Hotel. Co-accused persons were arrested from room. These evidences and that applicants is an owner of Hotel and his involvement in crime is appears to be more than prima facie. Alleged act squarely falls under the offences mentioned under Sections 3/4 of Public Gambling Act, 1867 as well as he has authorised or permitted co-accused to commit offences relating to computers as well as illegal gambling in a room of Hotel owned by him.
6. The Court proceed to consider rival submissions on basis of facts, which are not serious disputed at this stage, that applicant is an owner of a Hotel where during police raid accused persons including Manager of Hotel were arrested when they were involved in online Satta on an IPL match.
7. During investigation statements of police personnels, in whose presence raid was conducted, were recorded. They disclosed that four accused persons were arrested from room of Hotel wherein mobile phones, calculator, laptops, register having description of money etc. involved in Satta were also recovered. Customer entry register was also taken from Hotel, however, there was no entry of any guest on the relevant day and on basis of electronic and others evidence the Investigating Officer came to conclusion that applicant and other co-accused have committed offences referred above. One of the accused person has also disclosed that on instruction of applicant Hotel room was opened and co-accused were allowed to stay in Hotel for the purpose of illegal gambling.
8. The provisions of Public Gambling Act, 1967 described "common gaming house", which means, "any house, walled enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, enclosure, room or place, whether by way of charge for the use of the instruments of gaming, or of the house, enclosure, room or place, or otherwise howsoever".
9. Therefore, word "Hotel" would come under "walled enclosure" and "room" where illegal gambling was conducted will also fall under "common gaming house" and the words "otherwise howsoever" include wide range of act which are used for the purpose of profit or gain of the person owning, occupying, using or keeping such gaming house. The words "other instruments of gaming" would also include electronic instruments which are used for the purpose of online gaming or Satta.
10. Further according to Section 3 of Public Gambling Act, 1867 the owner or occupier of any such common gaming house, if knowingly or wilfully permits the same to be opened, occupied, used or kept by any other person as a common gaming house, will face penalty under Section 4 of Public Gambling Act.
11. It is not in dispute that applicant is the owner of Hotel. Now the question which required consideration is, whether prima facie on basis of evidence on record applicant knowingly or wilfully permits the co-accused to occupy common gaming house for the purpose of any illegal gambling, however for this purpose this Court cannot conduct a mini trial. (See, Ramveer Upadhyay and another vs. State of U.P. and another, 2022 SCC OnLine SC 484)
12. In the present case there is an evidence against applicant that he directed a clerk (co-accused) of Hotel to permit co-accused to use room of Hotel for the purpose of online Satta. Manager of Hotel was also arrested from room and further in the guest entry register there was no entry of co-accused persons who were found using room of Hotel for the purpose of online gambling. Therefore, prima facie it was in the knowledge of Hotel owner, i.e., applicant that room of Hotel may be used as a common gaming house and during police raid co-accused persons were apprehended red handed while they were involved in online Satta, which is prima facie corroborated from electronic gadgets, call details, register having details of money transaction as well as software used for purpose of online Satta.
13. The arguments that applicant only being the owner of Hotel cannot held vicarious liable for any act committed in his Hotel, is not a substantial ground to quash the entire criminal proceedings as there are sufficient evidence against applicant for the purpose of making out a more than prima facie case, as referred above.
14. As held by Supreme Court in Daxaben vs. State of Gujarat and others, 2022 SCC OnLine SC 936, that the inherent power under Section 482 Cr.P.C. has to be exercised sparingly with caution and only when where the complaint is frivolous and no case is made out against accused persons, however, as discussed above there is no ground to quash criminal proceedings as there exist more than prima facie case against applicant. In these circumstances inherent power cannot be exercised.
15. The application is accordingly dismissed.
Order Date :-05.12.2022 AK