Karnataka High Court

Sri M Seetharam vs State By on 21 October, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                                NC: 2024:KHC:42191
                                                           CRL.P No. 11837 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 21ST DAY OF OCTOBER, 2024

                                                BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                                CRIMINAL PETITION NO. 11837 OF 2023
                      BETWEEN:

                      1.    SRI M.SEETHARAM
                            AGED ABOUT 54 YEARS
                            S/O LATE A.N.MADHAVA RAO
                            RESIDING AT NO.18, 3RD CROSS
                            3RD MAIN, BANAGIRI NAGAR
                            BANASHANKARI 3RD STAGE
                            BENGALURU - 560 085.

                      2.    SRI VISHWANATH SHETTY
                            AGED ABOUT 53 YEARS
                            S/O SRI NARAYANASWAMY
                            RESIDING AT NO.216, I MAIN
                            7TH CROSS, CHAMARAJAPET
                            BENGALURU - 560 018.
Digitally signed by                                                 ...PETITIONERS
NAGAVENI
Location: HIGH
COURT OF              (BY SRI DWARAKANATH H. S., ADVOCATE)
KARNATAKA

                      AND:

                      STATE BY
                      BASAVANAGUDI POLICE STATION
                      BASAVANAGUDI, K.R.ROAD
                      BENGALURU - 560 004
                      REPRESENTED BY SPP OFFICE
                      HIGH COURT BUILDING - 560 001.
                                                                    ...RESPONDENT
                      (BY SRI. B.N.JAGADEESHA, ADDL. SPP)
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                                                  NC: 2024:KHC:42191
                                           CRL.P No. 11837 of 2023




     THIS CRL.P IS FILED U/S 482 OF THE CR.P.C PRAYING
TO SET ASIDE THE ORDER OF HON'BLE MMTC IV BENGALURU
IN    C.C.NO.2956/2023    DATED    17.02.2023   TAKING
COGNIZANCE OF OFFENCE UNDER SEC.79, 80 OF KARNATAKA
POLICE ACT AND ISSUING SUMMONS TO THE PETITIONERS
VIDE ANNEXURE-A.

    THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


CORAM:     HON'BLE MR JUSTICE M.NAGAPRASANNA


                           ORAL ORDER

The petitioners are before this Court calling in question

proceedings in C.C.No.2956/2023, pending before the

Metropolitan Magistrate Traffic Court - IV, Bengaluru,

registered for the offences punishable under Sections 79 and

80 of the Karnataka Police Act, 1963.

2. Heard Sri Dwarakanath H.S., learned counsel for the

petitioners and Sri B.N.Jagadeesha, learned Additional State

Public Prosecutor for the respondent.

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:

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"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 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

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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

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bond for Rs.50,000/- 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

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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 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

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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, I

deem it appropriate to quash the proceedings, qua the

petitioner.

4. For the reasons aforementioned, the following: