Sri Abrar Kazi vs State Of Karnataka
2022 Latest Caselaw 308 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10 T H DAY OF JANUARY, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

    CRIMINAL PETITION NO.2929/2020 C/W
 CRIMINAL PETITIONS NO.513/2021, 1769/2021
                    AND
    WRIT PETITION NO.13756/2020(GM-RES)


In Crl.P.No.2929/2020

BETWEEN:

Sri Abrar Kazi,
S/o Abdul Jabbar Kazi,
Aged about 29 years,
R/at Flat No.401,
Samakyas Pride, Ashoka Lane,
Green Glance Layout,
Belland uru, Bengaluru-560103.
                                         ...Petitioner
(By Sri Amar Correa, Advocate)

AND:

1.   State of Karnataka
     Through CCB Police,
     Beng aluru-560002.
     Represented by
     State Pub lic Prosecutor,
     Hig h Court of Karnataka,
     Beng aluru-560001.

2.   Sri K.Prakash,
     Police Inspector,
     CCB Sp ecial Enquiry,
     N.T.Pete, Beng aluru-560002.
                                      ...Respondents
                                 :: 2 ::


(By Sri M.Dhyan Chinnapp a, Addl. Advocate General
a/w Sri B.J.Rohith HCGP)

       This Criminal Petition is filed under Section 482
of   Cr.P.C.,   praying    to    set      aside   the    ord er   dated
11.02.2020      in     Cr.No.197/2019         now       reg istered   as
C.C.No.2939/2020 passed by the I Additional Chief
Metropolitan     Magistrate,      Bengaluru,        thereby       taking
cognizance of the offence punishable und er Section
120B    read    with    420     and    34    of   IPC     ag ainst    the
petitioner who is accused No.2 vid e Annexure-A and
etc.


In Crl.P.No.513/2021


BETWEEN:

Sri Amit Mavi,
Son of Gyanendra,
Aged about 36 years,
Residing at No.C81,
Lal Bag Loni, Ghaziab ad ,
Uttar Prad esh-201102.
                                                           ...Petitioner
(By Sri Akshay Prab hu, Advocate)

AND:

1.     State of Karnataka by
       Cubbon Park Police Station,
       Beng aluru City
       Investigation by
       Central Crime Branch,
       (Org anized Crime Wing)
       Beng aluru City
       Represented by the
       State Pub lic Prosecutor,
                           :: 3 ::


     Hig h Court Build ings,
     Beng aluru-560001.

2.   Sri Prakash K.,
     Police Inspector,
     Central Crime Branch
     Org anized Crime Wing
     Cottonp et Main Road,
     Sultanpet, Bakshi Gard ens,
     Chickpet, Beng aluru-560053.
                                            ...Respondents

(By Sri M.Dhyan Chinnapp a, Addl. Advocate General
a/w Sri B.J.Rohith, HCGP)

     This Criminal Petition is filed under Section 482
of   Cr.P.C.,   praying        to   quash   the     FIR    in
Cr.No.197/2019 of the Cubbon Park Police Station and
the subseq uent charg e sheet arising out of the same,
which is reg istered as C.C.No.2939/2020 on the file of
the Hon'ble I A.C.M.M at Beng aluru for the offence
punishab le und er Section 420, 120B of IPC read with
Section 34.

In Crl.P.No.1769/2021

BETWEEN:

Ali Ashp ak @ Asfak Hanif Thara
S/o Mr. Hanif Thara
Aged about 41 years,
R/at No.10, Patalamma Road ,
United Pearl Ap artments,
Fourth Floor, Flat No.T/4,
Near AV Hospital,
Basavanagud i, Beng aluru-560004.
                                                  ...Petitioner
(By Sri A.S.Ponnanna, Senior Counsel for
    Smt. P.Leela, Advocate)
                                 :: 4 ::



AND:

1.    The State of Karnataka
      By Cubbon Park Police Station,
      Represented by the
      State Pub lic Prosecutor,
      Hig h Court of Karnataka
      Beng aluru-560001.

2.    Sri Prakasha K.,
      Insp ector,
      Central Crime Branch
      Enquires, N.T.Pet,
      Beng aluru City -560002.
                                                  ...Respondents

(By Sri M.Dhyan Chinnapp a, Addl. Advocate General
a/w Sri B.J.Rohith, HCGP)

      This Criminal Petition is filed under Section 482
of   Cr.P.C.,   p raying   to    quash    the   charge   sheet   in
C.C.No.2939/2020 dated 05.02.2020 vid e Annexure-C
for offences punishab le under Section 420, 120B and
34 of the IPC, pending on the file of I Additional Chief
Metropolitan     Magistrate        Court,   Nrup atunga     Road ,
Beng aluru City and all further proceedings pursuant
thereto.

In W.P.No.13756/2020


BETWEEN:

Mr. C.M.Gautam,
S/o C.Muralidharan,
Aged about 33 years,
R/at No.424, 6 t h Main,
Amar Jyothi Layout (West Wing)
                            :: 5 ::


Domaluru,
Beng aluru-560071.
                                          ...Petitioner
(By Sri Hashmath Pasha, Senior Advocate for
    Sri Syed Muzakkir Ahmed, Advocate)

AND:

1.     State of Karnataka by
       Cubbon Park Police Station,
       And CCB-OCW Police,
       Beng aluru-560001

2.     Mr. K.Prakash,
       Police Inspector,
       Central Crime Branch Police,
       Special Investig ation Squad,
       Beng aluru City -560053.

       (Both are represented by
        Learned State Public Prosecutor,
        High Court of Karnataka
        Beng aluru-560001).
                                               ...Respondents

(By Sri M.Dhyan Chinnapp a, Addl. Advocate General
a/w Sri B.J.Rohith, HCGP)

       This Writ Petition is filed under Articles 226 and
227 of Constitution of India read with Section 482         of
the Cod e of Criminal Procedure, praying           to quash
entire p roceedings pend ing in C.C.No.2939/2020 on
the file of the Hon'ble I Additional Chief Metropolitan
Magistrate, Bengaluru City and which is arising out of
Crime No.197/2019 of Cubbon Park Police, Beng aluru
City   and   which   is   investig ated   by    CCB   Police,
Beng aluru for offence punishab le und er Section 120-B,
                                       :: 6 ::


420 read with 34 of IPC as an abuse of process of law
as per Annexure-A and C and etc.

      These Criminal and Writ Petitions having b een
heard      and    reserved        on    06.12.2021         coming      on   for
pronouncement this d ay, the court pronounced the
following:

                                   ORDER

All these petitions are disposed of by common

order as they are filed for quashing the

proceedings in C.C.2939/2020 on the file of I

ACMM, Bengaluru.

2. The petitioner in W.P.13756/2020 is

accused No.1, the petitioner in Criminal Petition

2929/2020 is accused No.2, the petitioner in

Criminal Petition 1769/2021 is accused No.3 and

the petitioner in Criminal Petition 513/2021 is

accused No.4. The necessary facts for disposal

of these petitions are as below :

3. On 6.11.2019, K.Prakasha, the Police

Inspector, City Crime Branch (Special :: 7 ::

Investigating), Bengaluru, while interrogating the

cricket players, coaches and owners of franchises

in connection with Crime No. 124/2019 came to

know about match fixing of the KPL cricket

matches held in between 15 t h and 31 s t August of

the year 2019 and gave a report of it to the

Cubbon Park Police Station. This resulted in FIR

being registered in Crime No. 197/2019 and

ultimately charge sheet being filed against the

petitioners and some other accused. The contents

of charge sheet are that,

i) On 22.8.2019 a match was played

between Bengaluru Blasters and

Bellary Tuskers at Chinnaswamy

Stadium, Bengaluru. In connection

with this match, accused No.3, the

owner of a team called Belagavi

Panthers conspired with accused No.1

and 2 and pursuant to the same :: 8 ::

accused No.2 conceded 10 runs in

over No. 7. For conceding the runs

accused No.2 received advance of

Rs.2.50 lakhs and then after the

match was over, he again received

Rs.5 Lakhs.

ii) During KPL season of the year 2018,

accused No.5 asked accused No.2 to

come to his residence on 1.9.2018

and told him that his team should lose

the match to be played on 3.9.2018

against Shivamogga team. It is also

alleged that accused No.5 asked

accused No.1 that his team should

lose the match to Shivamogga Lions in

the said match.

iii) On 26.8.2019, match No.19 was

played at Mysuru between Mysuru and

Bellary teams. Accused No.5 met

accused No.1 in a hotel called :: 9 ::

'Southern Star Hotel' and asked him

to play slowly.

iv) Accused No.4 is a bookie. After the

schedule of the matches of the year

2019 was announced, accused No.4

met accused No.2 through a witness

by name Nitesh at Bengaluru Airport

and entered into conspiracy for match

fixing. Accordingly, on 23.8.2019,

when a match was played between

Bellary Tuskers and Shivamogga

Lions, accused No.4 made a whatsapp

call to accused No.2 and instructed

him to stop the bowling in the middle

itself and offered Rs.10,00,000/- for

doing so.

v)    Accused No.6 is a secretary of Social

      Club and KSCA member.           He, at the

instance of accused No.3 bore all the :: 10 ::

                    expenses       of    the        players        of    other

                    teams.

4. I have heard Sri Hashmath Pasha and Sri

Ponnanna, learned senior counsel, Sri Amar Correa

and Sri Akshay Prabhu appearing for the

petitioners in respective cases, and Sri Dhyan

Chinnappa, Additional Advocate General and Sri

B.J.Rohith for the respondent/State.

5. One point commonly urged by all the

counsel for the petitioners is that match fixing is

not an offence, nor has it been defined to be an

offence in any law. And offence under section

420 of IPC cannot be imputed against the

petitioners for, the essential ingredients for the

said offence to constitute are not forthcoming in

the charge sheet. Even if it is assumed for

argument sake that the petitioners did involve in

match fixing, it will not constitute an offence and

at best it is breach of the Code of Conduct :: 11 ::

prescribed to the players by the BCCI. Action may

be taken by the BCCI and in this case the Cricket

Board has not taken any action against some of

the petitioners who are players. In this view,

charge sheet for the offence under section 420 IPC

is not sustainable and for the same reason the

offence of conspiracy punishable according to

section 120B is also not sustainable.

5.1. Sri Hashmath Pasha in particular

highlighted one point of argument that the very

registration of FIR in Crime No. 197 of 2019 is bad

because respondent No.2 made a report to the

Cubbon Park police based on some information he

elicited or extracted from accused No.2 while

interrogating him in connection with another case.

But, the information the respondent extracted

while interrogating accused 2 has not been

produced and because of this faulty procedure, FIR

deserves to be quashed.

:: 12 ::

5.2. Sri Akshay Prabhu, learned counsel,

argued that statement made by an accused cannot

be used against co-accused or even against one

who made it if the statement is inculpatory in

nature. Since registration of FIR is based on

confession statement of an accused, FIR is bad in

law and consequently the charge sheet is also bad.

5.3. Sri Ponnanna also submitted that FIR

cannot be registered on the basis of information

received during custodial interrogation.

6. The points urged by Sri Dhyan Chinnappa

for the respondent/State while arguing are that

Anti-Corruption Code prescribed by BCCI is not a

bar for initiating criminal proceedings and that in

the case on hand, all the essential ingredients for

the offence under section 420 IPC are present. He

elaborated his argument that people buy tickets to

watch a match. They carry an impression in their :: 13 ::

mind that they are going to watch a fair play

which will yield a just result. If match fixing

takes place, the result is pre-determined and there

is no fair game. Thus people are cheated. The

property involved in a case of this type to invoke

the offence under section 420 IPC is the money

that the people pay for buying tickets. They are

induced to buy tickets for the fair play assured and

in case there is match fixing, certainly element of

deception can be made out and thus section 420 is

attracted. He also argued that section 120B IPC is

an independent offence, there are materials in the

charge sheet indicating conspiracy among the

accused for fixing the game. Even assuming that

section 420 is not attracted, the petitioners can be

tried for the offence under section 120B IPC.

Thus, it is his argument that all the petitions are

devoid of merits.

:: 14 ::

7. Sri Hashmath Pasha, learned senior

counsel, replied that though offence under section

120B is an independent offence, the corresponding

offence for which conspiracy is alleged to have

been hatched should be forthcoming from the

charge sheet materials, or otherwise section 120B

cannot also be invoked. In this case section 420

IPC is not at all attracted and thus section 120B

does not stand independently.

8. I have considered the arguments. Firstly,

one point of argument regarding registration of an

FIR is to be dealt with. All the counsel for the

petitioners have fussed over this aspect. It is true

that the second respondent made a report to the

Cubbon Park police for registration of FIR on the

basis of information that he gathered while

interrogating a player in connection with Crime No.

124/2019. It appears that the information the

second respondent gathered is in the form of :: 15 ::

confession of an accused and this is the reason for

taking strong objection for registration of FIR in

Crime No. 197/2019 which has given rise to

charge sheet in the case on hand. Of course there

is substance in the argument that the confession

statement of an accused given before the police

cannot be referred to in view of bar contained in

section 25 of the Indian Evidence Act. But, the

said bar is to the extent of proving the confession

against the accused who made it, there is no

prohibition as such to make use of any information

that a police officer comes to know for the first

time regarding a crime which might have taken

place in the past and not detected till then, while

interrogating an accused in connection with

another case of crime. Supposing that an accused

himself goes to police station and gives

information about the offence committed by him,

the police in such a circumstance can very well

register an FIR and this proposition is well :: 16 ::

established [Faddi vs State of Madhya Pradesh,

(AIR 1964 SC 1850) and Aghnoo Nagesia vs

State of Bihar (AIR 1966 SC 119)]. If this is

the position, why a statement given by a co-

accused regarding another crime cannot be made

use of for registration of FIR. In fact many

incidents of theft, robbery or dacoity come to light

only during such interrogations. It may be stated

further that such statement can be made use of

only for the limited purpose of registration of FIR

and it cannot be used for proving it against an

accused. Registration of FIR is not the end in

itself and it is not a substantive piece of evidence

also. Mere registration of FIR in this manner does

not lead to convicting an accused, investigator has

to collect independent evidence and further the

prosecution must be able to prove its case beyond

reasonable doubt. Therefore the entire argument

that statement of a co-accused during

interrogation in connection with some other crime :: 17 ::

cannot form basis for registration of FIR is totally

unfounded.

9. Regarding the argument of Sri Hashmath

Pasha that statement recorded by respondent No.2

during investigation in Crime No. 124/2019 has

not been produced, it is to be stated that

production of such a statement is not necessary.

FIR is to be registered based on the information

relating to commission of a cognizable offence.

According to respondent No.2 he collected that

information during interrogation in Crime No.

124/2019. It was a confessional statement of an

accused and it forms part of the record in Crime

No. 124/2019. While a copy of that statement

could have been produced along with report made

by respondent No.2 to the Cubbon Park police, its

non-production has least effect for, even if it is

produced, it cannot be proved against the accused

in the present case. The report of respondent :: 18 ::

No.2 shows information that he collected regarding

match fixing for the KPL matches of the season

2019 and this much of information can certainly be

basis for registration of FIR if really an offence has

been committed. Therefore this argument is also

not acceptable.

10. However, the other common point urged

by all the counsel is worth acceptance. According

to the prosecution match fixing amounts to

cheating and therefore the offence under section

420 IPC has been invoked in the charge sheet.

For invoking offence under section 420 IPC, the

essential ingredients to be present are deception,

dishonest inducement of a person to deliver any

property or to alter or destroy the whole or any

part of a valuable security. It was argued by Sri

Dhyan Chinnappa that the cricket lovers go to

watch the match by buying tickets and thereby

they are induced to part with their property, i.e., :: 19 ::

their money. Of course money is a property, but

his argument that they are induced to buy tickets

cannot be accepted. They may have a feeling that

they are going to witness a fair game being

played, but, they buy the tickets voluntarily. So,

question of inducement to buy ticket can be ruled

out.

11. It is true that if a player indulges in

match fixing, a general feeling will arise that he

has cheated the lovers of the game. But, this

general feeling does not give rise to an offence.

The match fixing may indicate dishonesty,

indiscipline and mental corruption of a player and

for this purpose the BCCI is the authority to

initiate disciplinary action. If the bye-laws of the

BCCI provide for initiation of disciplinary action

against a player, such an action is permitted but,

registration of an FIR on the ground that a crime

punishable under section 420 IPC has been :: 20 ::

committed, is not permitted. Even if the entire

charge sheet averments are taken to be true on

their face value, they do not constitute an offence.

12. One of the petitioners is a bookie said to

have involved in betting. Sri Hashmath Pasha has

relied upon a judgment of the Supreme Court in

Board of Control for Cricket vs Cricket

Association of Bihar and Others [2016 (8) SCC

535] where it is observed that betting is to be

legalized. It was argued by the respondent that

betting amounts to gaming which is an offence

under the Karnataka Police Act. If section 2(7) of

Karnataka Police Act is seen, its explanation very

clearly says that game of chance does not include

any athletic game or sport. Cricket is a sport and

therefore even if betting takes place, it cannot be

brought within the ambit of definition of 'gaming'

found in Karnataka Police Act.

:: 21 ::

13. Sri Dhyan Chinnappa argued that section

120B of IPC is an independent offence and

therefore notwithstanding the fact that ingredients

for section 420 IPC can be said to be not there for

argument sake, still the accused can be

prosecuted for offence under 120B and in this

regard he has placed reliance on the judgment of a

co-ordinate bench of this court in the case of

Sachin Narayan vs Income Tax Department

and Another (W.P.5299/2019 and connected

writ petitions). There is no second word with

regard to his argument that section 120B is an

independent offence but, to invoke this offence of

conspiracy, as has been argued by Sri Hashmath

Pasha, the allegations found in the charge sheet

must constitute an offence in connection with

which conspiracy is alleged. As discussed above,

the allegations found in the charge sheet do not

constitute an offence under section 420 IPC and

therefore offence under section 120B cannot be :: 22 ::

invoked in the facts and circumstances. Therefore

the argument of Sri Dhyan Chinnappa cannot be

accepted.

14. From the foregoing discussion, I come to

conclusion that all these petitions deserve to be

allowed. The proceedings against the petitioners

in C.C.2939/2020 on the file of I ACMM,

Bengaluru, are quashed.

SD/-

JUDGE

Ckl/-