"To quash the FIR in Crime No.61/2024 of
respondent Arasikere Police, Pavagada Taluk,
pending on the file of Prl.Civil Judge (Jr.Dn.) and
JMFC Court, Pavagada, Tumkur District, for the
alleged offence punishable under sections 87 of
KARNATAKA POLICE ACT, in the interest of justice."
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2. Heard the learned counsel for the petitioners and
the learned Addl.SPP for respondents and perused the materials
on record.
3. Perusal of the material on record would indicate
that as per the impugned complaint registered as F.I.R., in
Crime No.61/2024 dated 04.07.2024 as well as seizure
panchanama of even date, petitioners were said to be playing
the game andar bahar in a public place, which was a tank,
thereby committing offences punishable under Section 87 of
the Karnataka Police Act, 1963 (for short 'K.P.Act') which is a
non-cognizable offence.
4. Learned counsel for the petitioners submits that the
game of andar bahar even if played in a public street or public
place cannot be construed or treated as a game of chance but
the same is a game of skill as held by the various judgment of
this Court including the recent judgment in the case of
"N.G.Srinivasa and other Vs. State of Karnataka and
another" in Crl.P.No.1950/2024 dated 11.07.2024. It is
therefore submitted that so long as the impugned proceedings
arising out of alleged offence under Section 87 of the K.P.Act
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relates the alleged game andar bahar being a game of skill and
not a game of chance, the impugned proceedings deserves to
be quashed in terms of the aforesaid judgment.
5. Per contra, learned Addl.SPP for the respondents
would support the impugned order and submits that there is no
merit in the petition and the same is liable to be dismissed.
6. In N.G.Srinivasa's case supra this Court referred
to the various judgments of Co-ordinate Bench of this Court
and come to the conclusion that game andar bahar is a game of
skill and not game of chance and consequently quashed the
proceedings by holding as under:-
"The petitioners are before this Court calling in
question registration of a crime in Crime
No.119/2023, the order dated 04.01.2024 and the
proceedings in C.C.No.10/2024, pending before the
Additional Civil Judge and JMFC, Holalkere,
registered for the offences punishable under
Sections 79 and 80 of the Karnataka Police Act,
1963.
2. Heard Sri Kalyan R., learned counsel for the
petitioners and Sri P. Thejesh, learned High Court
Government Pleader for respondent No.1.
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
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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 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
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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/-
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
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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 prosecution about the
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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
theindemnity 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".
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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:
ORDER
(i) The Criminal Petition is allowed.
(ii) The crime in Crime No.119/2023, the
order dated 04.01.2024 and the proceedings in
C.C.No.10/2024, pending before the Additional
Civil Judge and JMFC, Holalkere, stand
quashed."
7. In the instant case, material on record comprising
of complaint, F.I.R., seizure mahazar etc., would indicate that
petitioners were allegedly playing the game of andar bahar
which is a game of skill and not a game of chance as held in the
aforesaid judgment referred supra and consequently the
impugned proceedings deserve to be quashed.
8. Accordingly, I pass the following:
ORDER
i) Petition is hereby allowed.
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ii) Impugned proceedings in
C.C.No.912/2024 (arising out of F.I.R. in Crime
No.61/2024,) is hereby quashed qua the petitioners.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
GPG
CT: BHK
