Telangana High Court
Rudra Srinivas, Karimnagar Dt 4 Otrs., vs The State Of Telangana, Rep Pp Anr., on 21 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.12743 of 2016
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners-accused Nos.1 to 5 to quash C.C.No.154 of 2016 on the file of learned Judicial Magistrate of First Class at Korutla, Karimnagar District, the cognizance of which was taken on file for the offence under Sections 3 and 4 of the Andhra Pradesh Gaming Act, 1974.
02. The facts in brief as can be seen from the record available before the Court are as under:
a) On 01.04.2016 at 5.30 PM the Sub-Inspector of Police, Korutla Police Station has lodged a complaint alleging that on 01.04.2016 at 5.00 PM on receipt of credible information he has surprised the house of accused No.1 bearing No.4-1-483, Bilalpura, Korutla and found all the petitioners playing three cards game and betting money. The Police have seized betting money of Rs.27,330/- and five mobile phones and one motorcycle and 52 playing cards from their possession under the cover of panchanama in the presence of mediators. All the accused stated to have voluntarily confessed that they have 2 committed the offence and seized Rs.3,000/- and micromax dues cell phone from accused No.1, Rs.10,500/- and Lenova Duos cell phone from accused No.2, Rs.3,000/- and MI cell phone from accused No.3, Rs.4,000/- and Nokia cell phone and Suzuki Axis moped bearing No.AP 15 BN 3540 and Rs.6,830/-
and Nokia cell phone total betting amount of Rs.27,330/- and 52 playing cards from their possession under a cover of panchanama.
b) On the report of LW12, a case in Crime No.88 of 2016 was registered under Sections 3 and 4 of the A.P. Gaming Act. Statements of LWs 3 to 10 were recorded by the Police. After completion of investigation, the investigating agency has filed charge sheet alleging that accused Nos.2 to 5 are the friends and they used to play cards at various places and on the date of the incident, all of them were playing three cards game at rice mill along with accused No.1 and betting money and therefore, prayed the Court to take cognizance against accused No.1 for the offence under Sections 3 and 4 of the A.P. Gaming Act and against accused Nos.2 to 5 for the offence under Section 4 of the A.P. Gaming Act. The said charge sheet was numbered as C.C.No.154 of 2016 learned Judicial Magistrate of First Class at Korutla, Karimnagar District. Aggrieved by the same, the 3 present petition is filed by petitioners-accused Nos.1 to 5 seeking quashment of C.C.No.154 of 2016 on the following grounds:
i) The complainant and investigating officer are one and the same persons and thereby the case against the petitioners cannot be proceeded with.
ii) The place, where the accused were playing the cards is not a common gaming house as defined under Section 2 (i) of the A.P.Gaming Act.
03. Heard Sri K.Venu Madhav, learned counsel for the Petitioners-accused Nos.1 to 5 and Sri S.Ganesh, learned Assistant Public Prosecutor and perused the record.
04. Now the point for determination is:
"Whether the proceedings against the petitioners- accused Nos.1 to 5 in C.C.No.154 of 2016 on the file of learned Judicial Magistrate of First Class at Korutla, Karimnagar can be quashed under Section 482 of the Code of Criminal Procedure ?
P O I N T:
05. As per the charge sheet filed against the petitioners, on 01.04.2016 LW12 along with his staff members have surprised the house of accused No.1 bearing House No.4-1-483, 4 Bilalpura, Korutla, apprehended the accused, seized the cell phones, money, bike under the cover of panchanama and after completion of investigation LW12 filed charge sheet, which means that in the case on hand the de-facto complainant and the investigating officer are one and the same. Learned counsel for the petitioner has submitted an authority in Mohan Lal v. State of Punjab1, wherein the Honourable 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."
06. 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 1 2018 Law Suit (SC) 768 2 AIR 1976 Supreme Court 985 5 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."
07. 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 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 3 1998 CRI.L.J. 3182 6 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."
08. In view of the principle laid down in the above said authorities, it is evident that the de-facto complainant being a Police Officer cannot 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, Korutla Hills Police Station, who has raided the house where the cards were being played and subsequently conducted investigation, seized the material objects under confession cum seizure panchanama and finally filed charge sheet. So, the rationale of 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 petitioners-accused Nos.1 to 5 in C.C.No.154 of 2016 on the file of learned Judicial Magistrate of First Class at 7 Korutla, Karimnagar District amounts to abuse of process of law.
09. The other ground on which the petitioners have been agitating charge sheet is that the place, where the accused were arrested is not a common gaming house. As per the charge sheet, the accused No.1 is charged for the offence under Sections 3 and 4 of the A.P.Gaming Act. It is to be noted that in order to fasten the criminal liability under Section 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 8 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).] 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."
10. 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."
11. As per Section 2 (1) of the Act, the definition of common gaming house is as under:
9
"(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 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."
12. Therefore, in order to fasten the liability under Section 3 of the A.P.Gaming Act, the prosecution is expected to 10 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.1. In order to fasten the liability under Section 2(1)(ii) of the A.P. Gaming Act, in order to term the house of accused No.1 as common gaming house, it is to be proved that the person must use the said premises of his house by charging for the house of said premises. In the case on hand, the petitioner-accused No.1 being owner of the property/house should have charged or collected money from other accused for using the said premises for playing. It is not the case of the prosecution that the first petitioner had permitted other accused to use the premises by collecting money, interest rent or any other kind by using the said premises as gaming centre. Therefore, when there is no allegation and material that accused No.1 has permitted other accused to use the house on payment of money, it cannot be stated that the place of residence of accused No.1 is a common gaming house. On going through Section 3 of the A.P. Gaming Act, it is clear that whoever, opens, operates or uses any common gaming house can be punished for a period of two years. Therefore, in order to fasten the criminal liability, the prosecution is expected to prove that the accused has used 11 common gaming house by playing cards. As long as there is no evidence to show that the house of accused No.1 is being used on payment of money, the said house cannot be termed common gaming house.
13. In Bhimrao Trimbakrao Ingle v. State of Maharashtra4 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 4 1986 (4) SCC 91 12 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 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."
14. In view of the principle laid down in the above citation, it cannot be said that the accused No.1 has committed the offence under Section 3 of the A.P.Gaming Act, more 13 particularly when there is no material to show that accused No.1 was collecting money towards usage charges. Therefore, Section 3 of the A.P.Gaming Act cannot be fastened on accused No.1 as the house, wherein they are alleged to have been playing cards is not a gaming house.
15. Accused No.1 is charged for the offence under Section 4 as well as Section 3 of the A.P. Gaming Act. In respect of Section 4 of the A.P.Gaming Act, apart from accused No.1, rest of the accused are charged with the said section. 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. 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 discussion made above, the place of arrest of the accused is the house of accused No.1, cannot be termed as a common gaming house. Thereby, Section 3 of the Act is not applicable to accused No.1. Similarly, in respect of other accused also, the place where they were alleged to have 14 been playing cards is not a common gaming house, hence Section 4 of the A.P. Gaming Act is not applicable to them.
17. In the charge sheet, there is no clarity as to the place of offence. In the concluding part of the charge sheet, it is mentioned that the house bearing No. 4-1-483, Bilalpura, Korutla belongs to accused No.1. It is also stated in the charge sheet that the place, where the offence was committed is a rice mill belonging to accused No.1. However, in the panchanama, there is no clarity as to where the offence was committed.
18. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioners-accused Nos.1 to 5 in C.C.No.154 of 2016 on the file of learned Judicial Magistrate of First Class at Korutla, Karimnagar District, are hereby quashed.
As a sequel, the miscellaneous petitions in this matter, pending if any, shall stand closed.
_______________________ DR. D.NAGARJUN, J Date: 21.09.2022 AS