Karnataka High Court
Sri. Chinnappa D vs State Of Karnataka on 1 July, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 4055 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4055 OF 2024
BETWEEN:
1. SRI. CHINNAPPA D
S/O DOMINIC
AGED ABOUT 48 YEARS
R/A NO.54, THATTAGUPPE POST
BENGALURU DISTRICT-560082
2. SRI RUMESH L
S/O LATE LAKSHMAYYA
AGED ABOUT 48 YEARS
R/A NO.86
GANIGARAPALYA
THALAGATTAPURA POST
BENGALURU CITY-560062
3. SRI PRAKASH V
S/O VENKATASAMAPPA
Digitally signed
AGED ABOUT 57 YEARS
by NAGAVENI
R/A NO.86
Location: HIGH RAGHAVENDRANAGARA
COURT OF 3RD MAIN, J P NAGARA
KARNATAKA 7TH BLOCK
BENGALURU CITY-560078
4. SRI KIRAN KUMAR T M
S/O MUNIKRISHNAPPA
AGED ABOUT 40 YEARS
R/A NO.45
ISHWARYA APARTMENT
NEAR HEMANTH GATE DABA
THALAGHATTAPURA ROAD
BENGALURU CITY-560109
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5. SRI SRIKANTH
S/O SUBBAIAH
AGED ABOUT 38 YEARS
R/A NO.19
BEHIND ROOTS ACADEMY
HOSALLI MAIN ROAD
GANIGARAPALYA
BSK 6TH STAGE
BENGALURU CITY-560109
6. SRI NARAYANA GOWDA L
S/O LATE LAKSHMANA MURTHY
AGED ABOUT 50 YEARS
R/A NO.102, NEAR BUS STAND
KANAKAPURA ROAD
VAJARAHALLI
THALAGHATTAPURA POST
BENGALURU CITY-560109
7. SRI RANGAPPA
S/O TIMMAIAH
AGED ABOUT 61 YEARS
R/A NO. NIL
AJJ APARTMENT
THATAGUNI
KANAKAPURA MAIN ROAD
BENGALURU CITY-560082
8. SRI SUBRAMANYA S
S/O SUBBANNA
AGED ABOUT 53 YEARS
R/A NO.556, LIBRARY ROAD
THALAGHATTAPURA
KANAKAPURA ROAD
BENGALURU CITY-560109
9. SRI MURTHY V M
S/O MUNIYAPPA
AGED ABOUT 55 YEARS
R/A NO.121, LAKSHMI NILAYA
MARAMMA TEMPLE ROAD
VAJARAHALLI
THALAGHATTAPURA POST
KANAKAPURA MAIN ROAD
BENGALURU CITY-560062
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10. SRI PRADEEP K
S/O KRISHNAPPA
AGED ABOUT 42 YEARS
R/A NO.139, NEAR GOVT. SCHOOL
GANIGARAPALYA
THALAGHATTAPURA POST
BENGALURU CITY-560109
11. SRI CHANDRASHEKHARAIAH L M
S/O LATE VENKATASAMAPPA
AGED ABOUT 62 YEARS
R/A NO.451, BALAJI LAYOUT
RAGHUVANAHALLI
BENGALURU CITY-560109
12. SRI SHIVAMURTHY DATHU JADAV
@ S D JADHAV
S/O DATTU B JADAV
AGED ABOUT 69 YEARS
R/A NO.31, 13TH D CROSS
BALAJI LAYOUT
VAJARAHALLI
THALAGHATTAPURA POST
BENGALURU CITY-560062
13. SRI KRISHNAPPA T
S/O TIMMAYYA
AGED ABOUT 53 YEARS
R/A NO.52/1
VASUDEVAPURA
TARALU POST
KANAKAPURA MAIN ROAD
BENGALURU CITY-560082
14. SRI NARASIMHA MURTHY @ NARASIMHAIAH
S/O KRISHNAMURTHY
AGED ABOUT 56 YEARS
R/A NO.21/1
PIPELINE ROAD
SARAKKI VILLAGE
J P NAGARA
BENGALURU CITY-560078
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15. SRI NAGARAJU N
S/O NARAYANA SWAMI
AGED ABOUT 46 YEARS
R/A THATHAGUNI, THATHAGUNI POST
KANAKAPURA MAIN ROAD
BENGALURU CITY - 560082
16. SRI RAMAKRISHNA K
S/O KARI HANUMAIAH,
AGED ABOUT 39 YEASR,
R/AT NO. 202,
VAJRAMUNESHWARA TEMPLE ROAD,
THALAGHATTAPURA,
KANAKAPURA MAIN ROAD,
BENGALURU CITY - 560109.
17. SRI KRISHNAPPA C
S/O CHIKKA HANUMAIAH,
AGED ABOUT 55 YEARS,
R/AT NO.17, VASUDEVAPURA,
NELAGULI POST,
KANAKAPURA MAIN ROAD,
BENGALURU CITY - 560082.
18. SRI UMASHANKAR N H
S/O HONNURAIAH,
AGED ABOUT 35 YEARS,
R/AT NO. 9, NELAGULI,
BOLARE POST,
KANAKAPURA MAIN ROAD,
BENGALURU CITY - 560082.
19. SRI ANAND K
S/O KRISHNAPPA,
AGED ABOUT 50 YEARS,
R/AT NO. 205, VAJARAHALLI,
NEAR BUS STOP, THALAGHATTAPURA,
BENGALURU CITY - 560109.
20. SRI RAJESH K
S/O KRISHNAPPA,
AGED ABOUT 36 YEARS,
R/AT NO.66, GANIGARAPALYA,
THALAGHATTAPURA POST,
BENGALURU CITY - 560109.
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21. SRI KRISHNA S
S/O R SHIVANNA,
AGED ABOUT 36 YEARS,
R/AT NO.915,
SRINIVASA REDDY LAYOUT,
AVALAHALLI,
ANJANAPURA POST,
BENGALURU CITY - 560062.
22. SRI HARISHA C
S/O CHANNAPPA,
AGED ABOUT 36 YEARS,
R/AT NO.288,
2ND BLOCK, SOMANAHALLI,
KANAKAPURA MAIN ROAD,
BENGALURU CITY - 560082.
23. SRI RAVIKUMAR
S/O KENCHAPPA,
AGED ABOUT 33 YEARS,
R/AT NO.411,
AVALAHALLI, J P NAGAR 8TH PHASE,
ANJANAPURA,
BENGALURU CITY - 560062.
24. SRI NAGARAJ K V
S/O VENKATA RAMEGOUDA,
AGED ABOUT 51 YEARS,
R/AT NO. 210,
UNICORN POLAND APARTMENTS,
RESHMENAGARA,
GANIGARAPALYA,
BENGALURU CITY - 560109.
25. SRI LAKSHMI NARAYANA S H
S/O HANUMAIAH,
AGED ABOUT 40 YEARS,
R/AT NO. NILL, BRIGED MANDES,
SALUHUNUSE,
KANAKAPURA MAIN ROAD,
BENGALURU CITY - 560082.
26. SRI SHIVASWAMY K S
S/O LATE SOMEGOUDA,
AGED ABOUT 45 YEARS,
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R/AT NO. NIL, SIDDAPPA LAYOUT,
NEAR LAXMI TEMPLE,
VASANTHAPURA MAIN ROAD,
SUBRAMANYAPURA POST,
BENGALURU CITY - 560061.
27. SRI PAVAN KUMAR G K @ PAVAN
S/O KUMARA ,
AGED ABOUT 24 YEARS,
R/AT NO. VAJARAHALLI SPORTS,
CULTURAL INSTITUTE,
VAJARAHALLI,
THALAGHATTAPURA POST,
BENGALURU CITY - 560109.
28. SRI SHANKAR
S/O SADASHIVAIAH,
AGED ABOUT 30 YEARS,
R/AT NO. VAJARAHALLI SPORTS AND CULTURAL
INSTITUTE CLUB,
VAJARAHALLI,
THALAGHATTAPURA POST,
BENGALURU CITY - 560109.
29. SRI RAMESHA
S/O VEERABADREGOUDA,
AGED ABOUT 42 YEARS,
R/AT NO. NIL, NEAR ADINARAYANA,
SWAMY TEMPLE,
GOLLAHALLI,
ANJANAPURA POST,
BENGALURU CITY - 560061.
...PETITIONERS
(BY SRI. TIGADI VEERANNA GADIGEPPA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THALAGHATTAPURA POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU-560001
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CRL.P No. 4055 of 2024
2. DR B S SUDHAKAR
FATHER NAME NOT KNOWN
AGED ABOUT 45 YEARS
POLICE INSPECTOR
SE SQUAD, CCB
N T PETE
BENGALURU CITY-560002
...RESPONDENTS
(BY SRI. P. THEJESH, HCGP FOR R1)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENTIRE CHARGE SHEET AND ENTIRE PROCEEDINGS IN
C.C.NO.26770/2022 REGISTERED BY THE THALAGHATTAPURA
POLICE IN CR.NO.195/2022 FOR THE ALLEGED OFFENCE P/US/
79,80 OF KARNATAKA POLICE ACT 1963 ON THE FILE OF THE
HOBNLE II ACJM BENGALURU RURAL DISTRICT AT BENGALURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question
proceedings in C.C.No.26770/2022 pending before the
II Additional Chief Judicial Magistrate Court, Bengaluru,
registered for the offences punishable under Sections 79 and
80 of the Karnataka Police Act, 1963.
2. Heard Sri Tigadi Veeranna Gadigeppa, learned
counsel for the petitioners and Sri. Thejesh P., learned HCGP
appearing for respondent No.1.
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3. The learned counsel for the petitioners submits that
the issue in the case at hand stands covered by the judgments
rendered by the Co-ordinate Benches of this Court in
Crl.P.No.100877/2014, disposed on 13.06.2014, which
read as follows:
"5. On analysing the above said provision of law,
this Court has rendered a decision reported in
1971(2) Mys. L.J. 187 in the case of
Chickarangappa & Others Vs. State of Mysore and
another decision reported in 1977 (1) K.L.J. 274 in
the case of Eranna Vs. State of Karnataka, which
decisions declare that, "playing 'Andar Bahar' is a
game of skill and not mere a game of chance and
therefore, the offence punishable under Section 79
and 80 of the Act are not attracted".
6. In the ruling reported in 1977 (1) K.L.J. 274
(supra), this Court has categorically held that,
game of 'Andar Bahar' is not a game of chance. The
facts are also little bit relevant as quoted in the said
case. At paragraph 7 of the said judgment, it is
stated that;
"In this view of the matter, the essential
ingredient of the offence was not proved.
It could not be established that the
petitioner - accused were playing a game
of chance and one does not know how the
game 'Andar Bahar' is actually played
with the assistance of cards. Even if any
betting was resorted to and even if any
pledge of moveables was made in support
of that betting, that by itself did not
convert a game of a skill into a game of
chance. At any rate it was not
categorically proved that 'Andar Bahar' is
a game of chance and that these accused
were playing that game. They were not
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covered under the definition of gaming in
a common house. Since the institution
where the accused were found playing the
game with cards is a club, it is not
unusual that cards are played in a club,
and it may even be that some betting was
also being done. These facts by
themselves never proved that a game of
chance was being played or that no skill
was involved in that game so that it could
be considered to be a mere game of
chance. It is manifest that a game of skill
would not be held to be gambling for the
purpose of the Act. In this view of the
matter, no offence under Sections 79 and
80 of the Karnataka Police Act, 1963 was
made out against the petitioners. Hence
the conviction of sentence was set aside".
And in criminal revision petition No.100031/2014,
disposed on 03.03.2015, it is held as follows:
"This revision petition is filed under Section 397
read with Section 401 of Cr.P.C. by the State,
aggrieved by the order passed by the learned
Magistrate in releasing the interim custody of the
cash amount in favour of accused No.2/ respondent
No.2.
2. Succinctly stated, the P.S.I. of Honnavar Police
Station charge sheeted the respondents for the
offence punishable under Section 87 of K.P. Act.
The accused were on bail. During the raid the
Investigating Officer had seized cash of Rs.34,468/-
, which is alleged to be the gaming money.
Respondent No.2 moved an application under
Section 457 of Cr.P.C. for release of the said
amount. The application was contested by the
prosecution. The court below allowed the
application and released the interim custody of cash
amount in favour of the applicant / respondent No.2
on executing an indemnity bond for Rs.50,000/-
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with one surety for the likesum. However, care was
taken by the court below by directing accused No.1
to assist the C.M.O. of the Court to take the
photographs of the currency notes at his cost.
3. Learned counsel for the petitioner - State
submits that the trial Court has lost sight of the fact
that the amount was seized while the accused were
indulged in playing Andar Bahar.
In the event prosecution successfully proves its
case, said money is liable to be confiscated to the
State Government. The court had acted on the
fabricated documents produced by the accused
No.2 projecting that the money belong to Srikumar
Roadlines, under whom he was employed. Though
the prosecution had disputed the said document
without probing about the veracity of the
document, the trial Court has hurriedly released the
interim custody of the cash amount. In fact the said
cash amount is required to be marked in evidence
during the trial. The currency notes are not
perishable in nature and there was no dire
necessity to release the interim custody of the cash
amount in favour of second applicant. The accused
No.5 has pleaded guilty and was imposed fine, that
strengthens the case of prosecution. In the
judgment of this Court reported in 1993 CRL.L.J.
3109 in the case of T. Narayanaswamy vs. State
and Others, it has been held that release of money
seized for the interim custody is bad in law. Hence,
the impugned order is liable to be set aside.
4. In reply, Sri Anoop G. Deshpande, learned
counsel for R1 to R4 and R6 to R7 submits that the
impugned order being in the nature of interlocutory
order is not amenable to the revision jurisdiction.
Hence, the very petition itself is not maintainable.
In fact, the money seized was not the gaming
money, but it belongs to his employer Srikumar
Roadlines and the court below having satisfied
about his contention was pleased to release the
interim custody to his possession. However, the
interest of State is protected by directing him to
execute the indemnity bond for Rs.50,000/- with
one surety for the likesum. Even the interest of the
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prosecution about the identification of the currency
notes is also taken care by directing him to assist
the C.M.O. of the Court at his cost in taking
photographs of the currency notes.
5. Respondent No.5 is served and not represented.
6. As regards the first contention about the
maintainability of the revision petition, by a catena
of judicial pronouncements of this Court and other
High Courts, it is held that the release of interim
custody of the seized property is the nature of
adjudication of the rights of the parties in reference
to the said
property. The said order is amenable for revision
jurisdiction under Section 397 of Cr.P.C. Hence,
there is no merit in the contention that this petition
is not maintainable.
7. As regards the merit of the impugned order is
concerned, the court below being convinced with a
certificate produced by the second applicant issued
by his employer Srikumar Roadlines and also daily
enquiry report dated 14.11.2012 has inferred that
he is an employee of the said Roadlines. Keeping
open the question of the ownership of the seized
property / cash amount in question the court below
has ordered interim custody by taking the
photographs of currency notes and also by calling
upon the applicant to execute the indemnity bond
of Rs.50,000/- with one surety for the likesum.
8. Under the circumstances, I hold that the
impugned has not prejudiced the case of the State
and it is not illegal. The grounds urged by the State
lacks merits and does not call for
interference of this Court. Accordingly, petition is
rejected".
In the light of the afore-extracted judgments rendered by
the Co-ordinate Benches of this Court and in the facts obtaining
in the case at hand, which covers the issue on all its fours,
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I deem it appropriate to quash the proceedings, qua the
petitioners.
4. For the reasons aforementioned, the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings in C.C.No.26770/2022 pending
before the II Additional Chief Judicial Magistrate
Court, Bengaluru, stand quashed, qua the
petitioners.
Sd/-
JUDGE
KG
