Karnataka High Court

Shri Amit Vijay Yadav vs The State Of Karnataka on 11 December, 2023

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 11TH DAY OF DECEMBER 2023

                                                  BEFORE

                           THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                                  CRIMINAL PETITION NO. 103029 OF 2023

                      BETWEEN:

                      1.     SHRI. AMIT VIJAY YADAV,
                             AGE. 31 YEARS, OCC. LAUNDRY
                             R/O. 451 RAVALANATH LANE,
                             CHANDGAD, TQ. CHANDGAD,
                             DIST. KOLHAPUR-416509.

                      2.     SHRI. MANOHAR OMANNA MANDOLKAR,
                             AGE. 44 YEARS, OCC. AGRICULTURE,
                             R/O. CROSS 58, MANNUR, VTC,
                             PO GOJAGE-591128.

                      3.     SHRI. MOHAN MAHADEV KARAPE,
                             AGE. 53 YEARS, OCC. AGRICULTURE,
                             R/O. RAVALANATH GALLI,
                             NEAR RAVALNATH MANDIR,
                             AT POST. CHANDGAD, TQ. CHANDGAD,
                             DIST. KOLHAPUR-416509.

VIJAYALAKSHMI
M KANKUPPI            4.     GANAPATI TATOBA KADOLKAR,
                             AGE. 59 YEARS, OCC. AGRICULTURE,
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI                     R/O. 4240 MARATHA COLONY,
Date: 2023.12.16
11:13:31 +0530               KANGRALI BK, BELAGAVI-590010.

                      5.     SHRI. ABHIJEET MAHADEV PARIT,
                             AGE. 28 YEARS, OCC. DRIVER,
                             CHANDGAD, TQ. CHANDGAD,
                             DIST. KOLHAPUR-416509.

                      6.     SHRI. VINAYAK CHANDRAKANTH JADHAV,
                             AGE. 34 YEARS, OCC. PRIVATE SERVICE,
                             R/O. KAMAT GALLI, H.NO.2461/1,
                             BELAGAVI-590001.
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7.   SHRI. VIJAY GAJANAN KHATAVKAR,
     AGE. 59 YEARS, OCC. AGRICULTURE,
     R/O. KOWAD ROAD, UCHAGAON,
     BELAGAVI-591128.

8.   SHRI. ANANDA BAPU BELGAONKAR,
     AGE. 41 YEARS, OCC. DRIVER,
     R/O. #2354, MAHADEV GALLI,
     GANGA NAGAR, MACHE,
     BELAGAVI-590014.

9.   SHRI. SATYAPAP LAGAMAPPA BUDRANUR,
     AGE. 36 YEARS, OCC. BUSINESS,
     R/O.H.NO.205, LAXMI GALLI,
     MACHE, BELAGAVI-590014.

10. SHRI. SACHIN RAMBHU GORALE,
    AGE. 36 YEARS, OCC.
    R/O.H.NO.205, LAXMI GALLI,
    MACHE, BELAGAVI-590014.

11. SHRI. YELLAPPA RAMAPPA BEVINAGIDAD,
    AGE. 54 YEARS, OCC. AGRICULTURE,
    R/O. KOLLAR ONI, SAVADATTI,
    BELAGAVI-591125.

12. SHRI. ASHOK KANNAJI GAYAJI,
    AGE. 57 YEARS, OCC. PRIVATE SERVICE,
    R/O. H.NO.2514, VIJAYA NAGAR,
    VTC, HINDALGA, BELAGAVI-591108,

13. SHRI. VIJAY SHRINIVAS NAIDU,
    AGE. 51 YEARS OCC. COOLIE,
    R/O.CROSS 17, JANATA PLOT ALLARWAD,
    BELAGAVI-590003.

14. SHRI. PRUTHVIRAJ PRABHAKAR DESAI,
    AGE. 47 YEARS, OCC. SERVICE (KSRTC),
    R/O. 198/1, BAJAR PETH, CHANDAGAD,
    TQ. CHANDGAD, DIST. KOLHAPUR-416509.

15. SHRI. FAKIRAPPA BASAVANNI KILARGI,
    AGE. 59 YEARS, OCC. PRIVATE SERVICE,
    R/O. RAILWAY QUARTERS CAMP,
    DIST.BELAGAVI-590001.
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16. SHRI. BALU NAGAPPA RAVALE,
    AGE. 39 YEARS, OCC. PAINTING,
    R/O.H.NO.824/3, RAIT GALLI,
    BAJAR GALLI CORNER, M-VADAGAON,
    BELAGAVI-590005.

17. SHRI. GAJAANAN SHASHIKANT
    GAVADE @ GARADE,
    AGE. 47 YEARS, OCC. AUTO DRIVER,
    R/O. 2483, KAMAT GALLI,
    DIST.BELAGAVI-590001.

18. SHRI. SHIVKUMAR ASHOK
    PAYAKANNAVAR (NICK NAME)
    SHRI. SUKUMAR MANIK PADMANNAVAR (REAL NAME),
    AGE. 50 YEARS, OCC. BUSINESS,
    R/O. 639/B, KALAMATH ROAD, WARD NO.30
    BELAGAVI-590001.

19. SHRI. KIRAN SHIVAJI BACHIKAR,
    AGE. 43 YEARS, OCC. BUSINESS,
    R/O. 898/C ACHARYA GALLI,
    SHAHAPUR, BELAGAVI-590003.

20. SHRI. PARASHURAM SHANKAR SUNAGAR,
    AGE. 46 YEARS, OCC. COOLIE,
    R/O. PLOT NO.23, BASAV COLONY,
    NEHRU NAGAR BELAGAVI-590010.

21. SHRI. ANAND PARASHURAM
    KAVALE @ KAMBLE
    AGE. 49 YEARS, OCC. PRIVATE SERVICE,
    724 III CROSS, NEHRU NAGAR,
    KANGRALI BK, BELAGAVI-590010.

22. SHRI. RAJU MARUTI KADOLKAR,
    AGE. 51 YEARS, OCC. BUSINESS,
    R/O. KAMAT GALLI, BELAGAVI-590001.

23. SHRI. RAJU MAHADEV PATIL,
    AGE. 52 YEARS, OCC. BUSINESS,
    R/O. CTS NO.10893, III CROSS,
    NEHARU NAGAR, BELAGAVI-590010.

24. SHRI. ANANT BALKRISHNA LANGARKANDE,
    AGE. 53 YEARS, OCC. LATHE WORKSHOP,
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     R/O. #14 OLD GANDHI NAGAR,
     DURGA MATA ROAD, ASHTE
     BELAGAVI-590016.

25. SHRI. SACHIN NAGESH JADHAV,
    AGE. 33 YEARS, OCC. DRIVER,
    R/O. #2392, KAMAT GALLI,
    BELAGAVI-590001.

26. SHRI. KUMAR CHANDRAKANT PATIL
    (NICK NAME),
    KAPIL CHANDRAKANT PATIL(REAL NAME),
     OCC. PAINTING
    R/O. 2408 KAMAT GALLI, BELAGAVI-590001.

27. SHRI. ASHOK BANDU REDEKAR,
    AGE. 68 YEARS, OCC. RETIRED
    R/O. 7/1, 1ST LANE, III CROSS,
    SHIVAJI NAGAR, BELAGAVI-590016.

28. SHRI. SIDARAI ADIVEPPA GANGINAL,
    AGE. 40 YEARS, OCC. AGRICULTURE,
    R/O. HOSA KENCHANATTI, HONAGA
    BELAGAVI-591156.

29. SHRI. ANIL RAJARAM JADHAV,
    AGE. 60 YEARS, OCC.
    R/O.4843/14, BELADAR CHAWANI,
    SADADHIV NAGAR, BELAGAVI-590001.

30. SHRI. SANJAY NARAYAN PATIL,
    AGE. 48 YEARS, OCC. COOLIE,
    R/O.H.NO. 669, VISHAL GALLI,
    KANGRALI KH, BELAGAVI-590010.

                                               ... PETITIONERS
(BY SRI. SHRIDHAR L. GURAV AND
 SRI. L.K. GURAV, ADVOCATES)

AND:

1.   THE STATE OF KARNATAKA,
     BY KAKATI POLICE STATION,
     BELAGAVI R/BY STATE P.P.
     HIGH COURT OF KARNATAKA,
     BENCH AT DHARWAD.
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2.   THE DEPUTY COMMISSIONER OF POLICE,
     POLICE HEAD QUARTER, BELAGAVI-590001,
     R/BY STATE P.P. HIGH COURT OF KARNATAKA,
     BENCH AT DHARWAD.
                                                ... RESPONDENTS
(BY SRI. P.N. HATTI, HCGP FOR R1 & R2)


     THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS OF THE LOWER COURT AND
HEAR THE PETITIONERS AND RESPONDENT AND DIRECT THAT THE
ENTIRE PROCEEDINGS IN CRIMINAL CASE NO.106/2020 ARISING
OUT OF KAKATI POLICE STATION CRIME NO.243/2018 FOR THE
OFFENCE PUNISHABLE U/S 79, 80 OF KARNATAKA POLICE ACT
PENDING ON THE FILE OF THE JMFC IV COURT BELAGAVI AGAINST
THE PETITIONERS MAY KINDLY BE QUASHED.


    THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:

                            ORDER

The petitioners have sought quashing of the

proceedings in CC No.106/2020 pending on the file of the

learned JMFC IV, Belagavi, registered for the offences

punishable under Sections 79 and 80 of the Karnataka Police

Act (hereinafter referred to as 'the KP Act', for short). The

petitioners are accused Nos.2, 4, 5, 7, 9, 10 12, 14, 16, 17,

20, 21, 25, 26, 28, 30 to 35, 41 to 45, 52, 55 to 57.

2. Heard the learned counsel appearing for the

petitioners and the learned High Court Government Pleader

appearing for the respondents.

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3. It is the case of the prosecution that the police

conducted raid in the farm house of accused No.42 and

found 4 groups playing Andar Bahar card game and the

police apprehended 40 persons and other persons ran away.

The police seized playing cards and cash under mahazar.

The police registered non-cognizable case in NC 19/2018 on

the report of the Deputy Commissioner of Police. The SHO

filed a requisition before the Magistrate seeking permission

to register FIR and conduct investigation. The Magistrate

made an endorsement on the requisition as "permitted".

Thereafter, a case came to be registered for offences under

Sections 79 and 80 of KP Act. The Police after investigation

filed charge sheet against these petitioners and others for

offences under Sections 79 and 80 of KP Act. On the basis

of the said charge sheet, a case came to be registered

against these petitioners in CC No.106/2020 pending before

the Court of JMFC IV, Belagavi. The petitioners have sougth

quashing of the said criminal case.

4. The learned counsel appearing for the petitioners

would contend that, the learned Magistrate while granting

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permission did not apply his mind and has made an

endorsement on the requisition given by the police and it is

bad in the eye of law as held by the Co-ordinate Bench in

the case of Vaggeppa Gurulinga Jangaligi v. State of

Karnataka1. It is alleged that, the game was being played

in the farm house of accused No.42 and it is not a "common

gaming-house" and therefore the offences under Sections

79 and 80 are not attracted. On that point, he places

reliance on the judgment of the Co-ordinate Bench of this

Court in the case of K.N. Suresh v. State of Karnataka2.

With this he prayed to allow the petition.

5. Per contra, the learned High Court Government

Pleader would contend that, the petitioners and others were

found playing game of Andar Bahar by using the playing

cards. On raid, playing cards and cash were seized under

mahazar and some of the petitioners were arrested. The

SHO has taken permission of the learned Magistrate as

required under Section 155(2) of Cr.P.C. and thereafter a

case is registered and after investigation, charge sheet has

ILR 2020 KAR 630.

2012 (2) KAR.L.J. 581.

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been filed against these petitioners. He contends that there

are no grounds for quashing. With this, he prayed to reject

the petition.

6. Having heard the learned counsel for the parties,

this Court has gone through the charge sheet material and

the decisions relied upon by the learned counsel for the

petitioners.

7. The offences alleged against these petitioners

under Section 79 and 80 of KP Act are non-cognizable

offences. As per sub-section(2) of Section 155 of Cr.P.C.,

SHO has to obtain permission of the learned Magistrate for

registering a non-cognizable offence and to conduct

investigation. The SHO has filed requisition on 22.08.2018

seeking permission of the learned Magistrate as required

under Section 155(2) of Cr.P.C. The learned Magistrate has

made an endorsement on the said requisition as

"permitted". This Court, considering several cases, has held

that granting permission by making an endorsement on the

requisition is bad in law, as the Magistrate has not applied

his mind. The Co-ordinate Bench of this Court while

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considering a similar case and the provisions of Section 155

of Cr.P.C. has relied on the decision in case of Vaggeppa's

(supra) wherein certain guidelines are issued for the Judicial

Magistrates which reads as under:

"i) The Jurisdictional Magistrates shall stop hereafter making endorsement as 'permitted' on the police requisition itself. Such an endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr.P.C.

ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself.

The said order sheet should be continued for further proceedings in the case.

iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition.

iv) The Jurisdictional Magistrate should examine the contents of the requisition with his/her judicious mind and record finding as to whether

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it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he/she shall reject the prayer made in the requisition. Only after his/her subjective satisfaction that there is a ground to permit the police officer to take up the investigation, he/she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence.

v) In case the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to investigate the case, who shall be other than informant or the complainant."

8. In view of the above, the endorsement made by

the learned Magistrate as "permitted" on the requisition

itself made by the police, is not an order in the eye of law,

as mandates under Section 155(2) of Cr.P.C.

9. The petitioners and other accused were found

gaming Andar Bahar using play cards in the Farm House of

accused No.42. The term used is "common gaming-house".

Sections 79 and 80 of the Karnataka Police Act, reads as

under:

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"79. Keeping common gaming house, etc.--Any person who.--

(a) opens, keeps or uses any building, room, tent, enclosure, vehicle, vessel, or place for the purpose of a common gaming-house;

(b) being the owner or occupier of any such building, room, tent, enclosure, vehicle, vessel, or place knowingly or willfully 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 building, room, tent, enclosure, vehicle, vessel, or place opened, occupied, kept or used for the purpose aforesaid; or

(d) advances or furnishes money for the purpose of gaming with persons frequenting any such building, room, tent, enclosure, vehicle, vessel, or place;

shall, on conviction, be punished with imprisonment which may extend to one year and 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 five hundred rupees; and

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(c) for a third or subsequent offence, such imprisonment shall not be less than nine months and fine shall not be less than one thousand rupees.

80. Gaming in common gaming-house, etc.--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 one year and 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 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 five hundred rupees."

10. The term 'common gaming-house' has been

defined under Section 2(3) of KP Act which reads thus:

2.Definitions.--

(3) "Common Gaming-house" means a building, room, tent, enclosure, vehicle, vessel or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, or keeping such building, room, tent, enclosure, vehicle, vessel or place, or of the person using such building, room, tent, enclosure,

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vehicle, vessel or place, whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instruments of gaming or of the building, room, tent, enclosure, vehicle, vessel or place, or otherwise howsoever or as subscription or other payment for the use of facilities along with the use of the instruments of gaming or of the building, room, tent, enclosure, vehicle, vessel or place for purposes of gaming;

Explanation.--In this clause "person" includes a company, association, club or other body of persons whether incorporated or not."

11. As per the case of the prosecution, the game was

played inside the farm house of accused No.42. Therefore,

such premises cannot be called as common gaming-house.

It is seen that, there is no complaint by anybody against the

petitioners. Under these circumstances, the registration of

the case by the Police against the petitioners is a sheer

abuse of process of law and therefore, the proceedings

against the petitioners in CC No.106/2020 requires to be

quashed.

12. In the result, the following: