Bombay High Court
Satish Hari Kulkarni vs The State Of Maharashtra And Ors on 18 February, 2021
Bench: S.S. Shinde, Manish Pitale
1/9 Judgment WP-3843-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3843 OF 2018
WITH
CRIMINAL APPLICATION NO.553 OF 2018
Satish Hari Kulkarni ]
R/o 14, Madhusanch Society, ]
Karve Nagar, Pune ]
] .. Petitioner
VERSUS
1. State of Maharashtra, ]
Through the Director General of Police, ]
Maharashtra State. ]
]
2. The Commissioner of Police, ]
Swargate Division, Pune ]
]
3. Assistant Commissioner of Police, ]
Swargate Division, Pune ]
]
4. Dr.Shivaji Pawar, ]
Assistant Commissioner of Police, ]
Swargate Division, having office at ]
Office of Assistant Commissioner of ]
Police, Swargate Division at Swargate, ]
near Swargate Police Station ]
]
5. Dnyaneshwar Bhaginath Palwe, ]
Police Naik having buckle No.628, ]
having office at the Deputy ]
Commissioner of Police, Zone-1, Pune ] .. Respondents
M.M.Salgaonkar
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Mr.Satyavrat Joshi i/b Mr.Nitesh J. Mohite for the Petitioner.
Mr.K.V.Saste, APP for the Respondent/State.
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 09th FEBRUARY, 2021
PRONOUNCED ON : 18th FEBRUARY, 2021
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
2. The petitioner has approached this Court invoking jurisdiction
under Article 226 of the Constitution of India as also Section 482 of
the Criminal Procedure Code for quashing of FIR and charge-sheet
pertaining to an incident in respect of which, he has been arraigned
as an accused alongwith other persons. As per the FIR, it is alleged
that the petitioner alongwith other accused persons had committed
offences under the provisions of the Maharashtra Prevention of
Gambling Act, 1887 (here-in-after referred to as "the Act of
1887")on 8th December, 2017. The petitioner was arrested in
connection with the said case but, later on, he was enlarged on bail.
Pursuant to completion of investigation, charge-sheet was filed
against the accused persons, including the petitioner for the offences
under Sections 4 and 5 of the Act of 1887 as also certain provisions
of the Maharashtra Prohibition Act, 1949 and the Cigarettes and
Other Tobacco Products Act, 2003.
3. The petitioner has approached this Court claiming that there
is no material brought on record in pursuance of the investigation,
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demonstrating that any of the ingredients of the aforesaid offences
could be made out against him. As per the petitioner, the material
on record in no manner connects him with the offences of gambling
or gaming or being connected with a common gaming house as
defined under the provisions of the Act of 1887. According to the
petitioner, entire allegations levelled against him in the present case
are concocted and that therefore, the FIR as well as the charge-sheet
deserved to be quashed in his context.
4. A perusal of the material on record shows that the police
allegedly received secret information on 8 th December, 2017 about
gaming activities being conducted at the premises, namely, Kapila
Matrix, Mundhva Road, Goregaon Park, Pune. A raid was
conducted, in pursuance of which, offences were registered wherein
the name of the petitioner also figured alongwith other accused
persons. Investigation was completed and charge-sheet was filed
wherein material was sought to be brought on record to show the
involvement of the accused persons, including that of the petitioner.
5. Aggrieved by the aforesaid action of the respondents, the
petitioner is before this Court by filing the present writ petition. On
28th January, 2020, this Court issued notice and granted stay of
further proceedings in the trial court only in relation to the
petitioner.
6. Mr.Joshi, learned counsel appearing for the petitioner,
submitted that a perusal of the provisions of the Act of 1887 would
show that the offences that were alleged against the petitioner under
Sections 4 and 5 were not made out, even if the material brought on
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record with the charge-sheet was to be taken into consideration. It
was submitted that neither was the petitioner found in the premises
alleged to be the gaming house nor was he connected with the
gaming house, in any manner. Since the presence of the petitioner
was not established at the premises, there was no question of the
petitioner having indulged in any activity that could be said to be an
offence under the Act of 1887. On this basis, it was submitted that
the impugned FIR and charge-sheet deserved to be quashed.
7. On the other hand, Mr.Saste, learned APP submitted that
voluminous documents filed alongwith the charge-sheet indicated
the involvement of the petitioner and that at this stage, no relief
could be granted as claimed by the petitioner.
8. We have perused the material on record and heard learned
counsel for rival parties. In order to consider the contentions raised
on behalf of the petitioner, it would be appropriate to refer to
relevant provisions of the Act of 1887. Section 4 stipulates that a
person, who opens, keeps or uses any house, room or place for the
purpose of a common gaming house or being owner of such
premises wilfully allows it to be used for the said purpose or such a
person is in the care or management of such a premises or advances
money for the purposes of gaming in such house, he shall be
punished with imprisonment extending to a period of two years and
he may also be punished with fine. Section 5 stipulates that if a
person is found in a common gaming-house gaming or present for
the purposes of gaming, he shall be punished with imprisonment
extending to six months and he is also liable to pay fine.
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9. Since it is alleged that the petitioner had committed the said
offences, it would be necessary to peruse the charge-sheet and the
accompanying documents to examine as to whether ingredients of
the aforesaid two offences can be said to be even prima facie made
out against the petitioner. A perusal of the charge-sheet and the
documents filed therewith shows that it is nowhere indicated as to
how the petitioner can be said to be connected with the premises
that, according to the respondents, could be said to be a common
gaming house. There is nothing to show any connection of the
petitioner to the said premises. He is not shown to be either an
owner or occupier of the said premises. Infact, the leave and licence
agreement pertaining to the said premises annexed to the charge-
sheet, does not show that the petitioner was either a partner or that
he was in any manner entrusted with occupation of the said
premises. Thus, it becomes clear that the petitioner is not covered
under the four categories specifically enumerated in Section 4 of the
Act of 1887 to even, prima facie, show that he could be charged in
connection with the common gaming house under Section 4 of the
Act of 1887.
10. Infact, it is somewhere alleged that the petitioner is a partner
of 'New World of Sports Club' and that therefore, he could be
connected with the said premises, being used as a common gaming
house. But, a perusal of the charge-sheet would show that a list of
members of the said Club, annexed to the charge-sheet, does not
show the petitioner as a member of gaming house. Therefore, the
material on record is completely bereft of any connection of the
petitioner with the said premises alleged to have been used as
common gaming house. Hence, there is substance in the contention
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raised on behalf of the petitioner that no offence under Section 4 of
the Act of 1887 could be said to have been committed even, prima
facie, by the petitioner on the basis of the material brought on
record alongwith the charge-sheet.
11. As regards Section 5 of the Act of 1887, the petitioner could
be said to be prima facie connected with such offence only if it could
be said that he was gaming in the said common gaming house or he
was present for the purpose of gaming. But, a perusal of the
material on record does not show anywhere that when the raid was
conducted by the police, on the basis of secret information regarding
the premises in question, the petitioner was actually found in the
said premises. When the petitioner was not found at the time of
raid, how could it be said that either he was gaming in the common
gaming house or that he was present for the purpose of gaming. A
perusal of the facts stated in the final report/charge-sheet shows that
there is only reference to the petitioner as having committed
offences under the provisions of the Act of 1887, without any further
material to establish his presence when the raid was conducted.
Therefore, the material on record, even if accepted, does not make
out even a prima facie case against the petitioner.
12. When the presence of the petitioner itself is not established on
the basis of the material brought on record, it cannot be accepted
that he can be hauled up for offences under the provisions of the
Maharashtra Prohibition Act, 1949 and the Cigarettes and Other
Tobacco Products Act, 2003. Therefore, ingredients of none of the
offences alleged against the petitioner are made out on the basis of
the material on record. In case of State of Haryana & Ors. Vs.
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Bhajan Lal & Ors.1, the Hon'ble Supreme Court has held in
paragraph 102 as under :-
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a congnizable offence justifying an investigation by
police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155
(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155 (2) of the Code.
1 1992 Supp (1) SCC 335
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(5) Where the allegation made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted ) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to
private and personal grudge."
13. A perusal of the above quoted categories identified in the
aforesaid judgment of the Hon'ble Supreme Court would show that
the case of the petitioner is covered by categories 1 to 3. Hence, we
find that there is substance in the contentions raised on behalf of the
petitioner that the petitioner is not liable to face trial on the basis of
such a charge-sheet and accompanying material. Learned APP could
not show anything from the charge-sheet and the material on record
as to how the ingredients of the offences alleged against the
petitioner were made out.
14. In view of the above, we are of the opinion that the present
writ petition deserves to be allowed. Accordingly, it is allowed in
terms of prayer clause (a), which reads as follows :
"That this Hon'ble Court be pleased to exercise its power
under Article 226 of the Constitution of India read with
Section 482 of Cr.P.C. and may be pleased to quash and set
aside the chargesheet bearing SCC No.1420 of 2018 which is
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pending on the file of learned Judicial Magistrate First Class,
Cantonment Court, Pune arising out of CR No.329 of 2017
which is registered with Mundhawa Police Station, Pune qua
the petitioner."
15. It is made clear that the FIR and the charge-sheet have been
quashed only in respect of the petitioner.
16. Rule is made absolute in above terms.
17. In view of the disposal of the writ petition, pending
application stands disposed of.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
