Gajendra S/O Shivprasad Kedia vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 3078 Bom

                                                    1                                    jg.cri.w.p.544.16.odt


                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                        : NAGPUR BENCH : NAGPUR.

                    CRIMINAL WRIT PETITION NO. 544 OF 2016

Gajendra s/o Shivprasad Kedia,
aged about 53 years, 
Occupation : Business, 
R/o Shivleela, Near ICICI Bank, 
Maltekdi Road, Amravati.                                                                      ... Petitioner

             VERSUS

(1) The State of Maharashtra, 
      through P.S. Rajapeth,
      District Amravati. 

(2) Shri S. M. Mankar,
      Police Inspector, 
      Police Station, Rajapeth, 
      District Amravati.                                                                   ... Respondents
-------------------------------------------------------------------------------------------------
Shri J. B. Kasat, Advocate for the petitioner
Shri S. A. Ashirgade, APP for the State/respondent no. 1 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  PRASANNA  B. VARALE and
                                                                 M. G. GIRATKAR, JJ.

DATE : 13/06/2017.

Judgment (Per : M.G. Giratkar, J)

Heard Shri Kasat, learned counsel for the petitioner and

Shri Ashirgade, learned Additional Public Prosecutor for the

State/respondent no. 1.

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2. Rule. Rule made returnable forthwith.

3. By this petition which is filed under Articles 226 and 227 of

the Constitution of India read with Section 482 of the Criminal

Procedure Code, the petitioner is seeking appropriate writ, order and

direction for quashing the FIR which is registered by Police Station,

Rajapeth vide Crime No. 377/2016. During the pendency of the

petition, charge-sheet came to be filed against the petitioner, therefore,

petition is amended and prayer is made for quashing and setting aside

the charge-sheet dated 14-6-2016.

4. Brief facts giving rise to the present petition are as under.

(i) The petitioner is a well reputed person doing a business of Ice

Factory and manufacturing of cold drinks and having deep roots in the

society.

(ii) Shivleela Sporting and Social Club, Saturna, Amravati

(hereinafter referred to as 'the club') having its Registration No.

Mah/1050/90 under the Societies Registration Act, 1960 and

Registration No. F-18240 (M) under the Bombay Public Trust Act, 1950

was registered to promote social and recreational activities including

sporting games such as Carrom, Chess, Hockey, Football, Cricket, Card

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Games Rummy etc. and the said club in December, 2015 has taken on

rent the premises i.e. spot of incidence in question belonging to the

petitioner for holding the recreational activities as aforesaid. The club is

a renowned club having near about 70 members including the petitioner

and the club charged a nominal membership fees of Rs. 101 from its

members as an annual membership fees. Most of the members are of

the age of 45 years and above who usually gathered in the club

premises for recreational purposes in the evening time. The club is

opened between 3.00 p.m. to 10.00 p.m. The club has installed 6 CCTV

cameras which records all the activities inside the club premises for a

period of three months on its hard disk.

(iii) The club had sought permission from the Commissioner of Police,

Amravati for running indoor entertaining games of Caromboard, Chess,

Cardroom, Table-tennis etc. at its premises w.e.f. 15-1-2016 and the

club started indoor recreational activities like Chess, Carom and

Cardroom for playing Rummy etc.

(iv) On 23-5-2016, while the members of the club were engaged in

recreational activity in the cardroom, playing game of skill namely,

Rummy with false table counters, at about 5.30 p.m., police officials of

the respondent Police Station entered the premises of club at Saturna

4 jg.cri.w.p.544.16.odt

without any authority of law and without making any enquiry and

without verifying as to whether the members were engaged in card

game of skill i.e. Rummy, police authorities i.e. respondents registered

false crime under Section 4 and 5 of the Maharashtra Prevention of

Gambling Act, 1887 (hereinafter referred to as 'the Act') against the

petitioner and 27 other persons who were present in the club including

other members and employees of club and proceeded to seize all the

articles belonging to the club. All the members were physically

searched and all the money which was in their pockets was seized from

them.

(v) Police have seized entire possession of the club at the time inside

the club premises including the chess boards, carrom boards,

membership cards, false table counters, tables, chairs etc. but have not

seized the CCTV camera footage even though the same is still intact and

available with the club and can be made available as and when

required. Even all belongings of the club have been seized, the same is

not reflected in the seizure panchanama.

(vi) From the FIR, it does not disclose any commission of offences

under Sections 4 and 5 of the Act. It is silent about the requirement of

gaming i.e. game of chance by the petitioner for stake or wager which is

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to become the property of the winner.

(vii) There is no prima facie case, even in the charge-sheet filed

against the petitioner and no prima facie material to proceed further

hence, it is thus prayed to quash the charge-sheet filed against the

petitioner.

5. The petition is opposed by the respondents. It is contended

by the Police Officer that the petitioner along with others were doing

gambling and money were used while playing cards. Charge-sheet is

filed against them.

6. Learned counsel, Shri Kasat for the petitioner has pointed

out Sections 4 and 5 of the Act and submitted that the petitioner being

member of the club along with others were playing game of skill i.e.

Rummy. Panchanama prepared by the Investigating Officer itself shows

that money was seized from the person of the petitioner and other

members. Panchanama does not show that the petitioner and other

members were playing any game of chance/gambling. Therefore, act of

the respondents arresting the petitioner is illegal. At last, Shri Kasat,

learned counsel has submitted that during the pendency of this petition,

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charge-sheet is filed. Learned counsel has pointed out copy of charge-

sheet and submitted that no prima facie case is made out for the

offences punishable under Sections 4 and 5 of the Act.

7. In support of his submissions, Shri Kasat, learned counsel

pointed out judgment of Division Bench of this Court reported in 2012

SCC Online Bom 832. Shri Kasat, learned counsel submitted that facts

in the present case and the facts in cited judgment are near about the

same and, therefore, the charge-sheet against the petitioner is liable to

be quashed and set aside.

8. On the other hand Shri Ashirgade, learned Additional

Public Prosecutor has submitted that there is sufficient material against

the applicant, therefore, charge-sheet is filed. He further submitted that

the petitioner may file discharge application before the trial Court,

hence, petition is liable to be dismissed.

9. Perused the record. From perusal of the record, it is clear

that the petitioner is a Member of the club, Saturna, Amravati which is a

registered club. Copy of registration certificate is filed on record. It was

issued by the Assistant Charity Commissioner, Amravati. The said club

obtained the spot of incident/hall on rent from the petitioner for the

7 jg.cri.w.p.544.16.odt

purpose of recreational activities. Spot panchanama dated 23-5-2016

shows that P.S.I. Mankar of Police Station, Rajapeth received

information that gambling was going on on the spot of incident i.e.

recreation club, thereby they effected raid.

10. Panchanama itself shows that no specific game is

mentioned or played by the petitioner and other persons. Panchanama

simply says that the petitioner and other persons were playing cards

with money and those were seized. It appears that the respondent -

police officer filed FIR on assumptions and presumptions stating that the

petitioner was running common gaming house. There is nothing to

show that the petitioner is/was running any common gaming house.

11. The Division Bench of this Court in the case of Jaywant

Balkrishna Sail Vs. State of Maharashtra reported in 2012 SCC

Online Bom 832 held that the prosecution has to prove that the accused

were playing gambling i.e. the game of chance. In the cited judgment,

accused were playing Rummy, they were arrested on the presumption

that they were playing gambling. All they were playing Rummy in club.

All they were reputed persons. The Division Bench in the cited

judgment reproduced following judgments.

(1) State of Andhra Pradesh v. K. Satyanarayan

8 jg.cri.w.p.544.16.odt

(2) Robert Elangoj v. Inspector of Police

(3) Galib Hussain Khan v. State of Maharashtra

(4) State of West Bengal v. Swapan Kumar Guha

(5) Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojtrao Angre

12. Section 4 and 5 of the Act reads as under :

4. [(1)] Whoever -

(a) [opens, keeps or uses any house, room or place] for the purpose of a common gaming house,

(b) being the owner or occupier of any such house, room or place knowingly or wilfully permits the same to be opened, occupied, kept or used by any other person for the purpose aforesaid,

(c) has the care or management of, or in any manner assists in conducting the business of, any such house, room or place opened, occupied, kept or used for the purpose aforesaid,

(d) advances or furnishes money for the purposes of gaming with persons frequenting any such house, room or place, [ [shall, on conviction, be punished] with imprisonment [which may extend to two years] [and may also be punished with fine] :

Provided that -

(a) for a first offence such imprisonment shall not be less than [three months and fine shall not be less than five hundred rupees;]

(b) for a second offence such imprisonment shall not be less than [six months and fine shall not be less than one thousand rupees ; and ]

(c) for a third or subsequent offence such imprisonment shall not be less than [one year and fine shall not be less than two thousand rupees.]

9 jg.cri.w.p.544.16.odt

[(2) Nothing contained in the provisions of the Probation of Offenders Act, 1958 or in sub-sections (1),(4),(5) and (6) of section 360 of the Code of Criminal Procedure, 1973, shall apply to any person convicted under this section.]

5. [Whoever is found in any common gaming-house gaming or present for the purpose of gaming, [ [shall on conviction be punished] with imprisonment which may extend to six months [and may also be punished with fine] ] :

Provided that -

(a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees ;

(b) for a second offence such imprisonment shall not be less than three months and fine shall not be less than two hundred rupees ; and

(c) for a third or subsequent offence such imprisonment shall not be less than six months and fine shall not be less than two hundred rupees.] Any person found in any common gaming-house during any gaming therein shall be presumed, until the contrary [is proved], to have been there for the purpose of gaming.

13. In view of the provisions of Sections 4 and 5 and the cited

judgment in the case of Jaywant Balkrishna Sail Vs. State of

Maharashtra (supra), it is clear that the respondents failed to show any

prima facie case against the petitioner that the petitioner along with

other persons were found playing gambling at the time of effecting raid.

There is no any averment in the FIR or charge-sheet that the petitioner

along with other persons were found playing gambling, a particular

10 jg.cri.w.p.544.16.odt

game. Documents filed on record shows that the petitioner is one of the

members of the club. It is the case of the petitioner that they were

playing Rummy. Game of Rummy is not a gambling as held in above

cited decision. Therefore, the charge-sheet filed by the respondents in

the Court of Judicial Magistrate First Class, Court No. 2, Amravati is

liable to be quashed and set aside in respect of the petitioner. Writ

petition is allowed in terms of prayer clause (AA).

                        JUDGE                                      JUDGE



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