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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.670 OF 2017
1. Manojsingh s/o. Chunnilal Thakur,
Aged about 31 years, Occ. Business,
r/o. Ward No.2, Shivaji Nagar,
Mahadulla, Nagpur. (Mob.
9850743195).
2. Megharaj s/o. Hiraman Belekar,
Aged about 42 years, Occ. Business,
r/o. Ward No.2, Near Z.P. School,
New Koradi, Koradi, Nagpur.
3. Pankaj s/o. Bhaiyyalal Belekar,
Aged about 37 years, Occ. Business,
r/o. Ward No.2, House No.69,
Near Z.P. School, New Koradi,
Koradi, Nagpur.
4. Ravindra s/o. Gulabrao Chaudhari,
Aged about 30 years, Occ.Business,
r/o. New Nanda, Koradi, Nagpur.
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5. Ganesh s/o. Ashok Barde,
Aged about 37 years, Occ.Business,
r/o. Ward No.2, House No.69, Near
Z.P. School, New Koradi, Koradi,
Nagpur.
6. Biharisingh s/o. Bhagatsingh Chauhan,
Aged about 45 years, Occ. Business,
r/o. Bhokara, Koradi, Nagpur.
7. Rupesh s/o. Mohapat Patil,
Aged about 25 years, Occ. Business,
r/o. Bhokara, Koradi, Nagpur.
8. Prashant s/o.Khushal Behune,
Aged about 25 years, Occ. Business,
r/o. New Bina, Khaparkheda,
Nagpur. .......... APPLICANTS
// VERSUS //
The State of Maharashtra,
Through P.S.O., P.S.,Khaparkheda,
Distt. Nagpur. .......... RESPONDENT
____________________________________________________________
Mr.A.S.Band, Advocate for the Applicants.
Mr.N.S.Rao, A.P.P. for the Respondent/State.
____________________________________________________________
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATED : 13th December, 2017.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. The Criminal Application is admitted and heard finally with the consent of the learned Counsel for the respective parties.
2. The applicants have prayed to quash and set aside the First Information Report dt.9.9.2017 registered by Police Station, Khaparkheda, District Nagpur for the offence punishable under Sections 4 and 5 of the Maharashtra Prevention of Gambling Act, 1887 in Crime No.0505/2017. It is submitted by the applicants that they are falsely implicated in the said crime.by Police Station, Khaparkheda.
3. It is alleged by respondent/State that, at the time of effecting raid at New Nanda at White Apartment, Police Officer found 22-26 persons playing/gambling with 52 cards. It is further ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:52:30 ::: 4 apl670.17.odt alleged that the applicants/gamblers were having a sum of Rs.1,02,000/- and 21 mobiles. Those were seized by the Police Officer.
4. It is submitted that there is no mention in the F.I.R. about what type of games were played by the applicants. The applicants were not playing any game of chance. Hence, prima facie offence punishable under Sections 4 and 5 of the Maharashtra Prevention of Gambling Act, 1887 is not established. Report also does not disclose about the game played by the applicants. Therefore, prayed to quash and set aside the F.I.R. registered against the applicants.
5. Heard Mr.A.S.Band, learned Counsel for the applicants. He has pointed out decision in Criminal Writ Petition No.500 of 2017, Ganesh Jaykisan Fafat vs. State of Maharashtra and submitted that the F.I.R. registered against the applicants nowhere shows that the applicants were playing the game of chance. At last, prayed to quash and set aside the impugned order.
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6. Heard Mr.N.S.Rao, learned A.P.P. for the Respondent/State. He has supported the impugned order.
8. Perused the F.I.R. From the perusal of the F.I.R., it is clear that the applicants were arrested alleging that they were playing/gambling with 52 cards. But the F.I.R. nowhere states what type of games were played by the applicants. Unless and until it is disclosed what type of game was played, it cannot be said that the applicants were playing/gambling.
9. There are various games which can be played with playing cards. One of the game is 'Rummy', which is a game of skill. It cannot be said that the persons who are playing/gambling are playing/gambling. Prosecution has to show that the applicants were playing the game of chance. This Court in the case of Ganesh Jaykisan Fafat (supra) has observed that unless and until it is shown that the accused/applicants were playing game of chance, it cannot be said that offence punishable under Sections 4 and 5 of the Maharashtra Prevention of Gambling Act is attracted. In the case of Gajendra s/o. Shivprasad Kedia .vs. State of Maharashtra and another, Criminal Writ Petition No.544 of 2016, this Court has ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:52:30 ::: 6 apl670.17.odt observed that, without mentioning in the F.I.R. about playing of a particular game, it cannot be said that offence under the Maharashtra Prevention of Gambling Act is established. In the case of State of Andhra Pradesh .vs. K. Satyanarayana, AIR 1968 SC 825, the Hon'ble Supreme Court has observed that the F.I.R. should disclose a particular game, which is a game of chance.
10. From the face value of F.I.R., it does not disclose that a particular game was played by the applicants, which was a game of chance and therefore, offence punishable under Sections 4 and 5 of the Maharashtra Prevention of Gambling Act is not attracted. Hence, in view of the Judgment of Hon'ble Supreme Court reported in 1992 Supp (1) SCC 335 , State of Haryana .vs. Bhajan Lal, the F.I.R. registered against the applicants is liable to be quashed and set aside. Hence, we allow the application in terms of prayer clause (A) of the application, which reads as under :.
"quash and set aside the FIR dated 09.09.2017 registered by Police Station P.S. Khaparkheda, Dist. Nagpur, for offence u/s.4 and 5 of Maharashtra Prevention of Gambling Act, 1887 in Crime No.0505/2017."::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:52:30 :::
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No order as to costs.
JUDGE JUDGE
[jaiswal]
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