Madras High Court
S.Selvakumar vs State Rep.By on 13 October, 2022
Crl.O.P.No.20064 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.10.2022
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.O.P.No.20064 of 2022
and
Crl.M.P.No.13179 of 2022
S.Selvakumar ... Petitioner
/vs/
State Rep.by
The Sub Inspector of Police,
Salem Town Police Station,
Salem District.
Crime No.101 of 2022 ... Respondent
Prayer : The Criminal Original Petition has been filed under Section 482
Cr.P.C. to call for the records pertaining to Crime No.101 of 2022 dated
22.06.2022 on the file of the respondent police herein and quash the same
by allowing this criminal original petition.
For Petitioner ... Mr.R.Marudhachalamurthy
For Respondent ... Mr.E.Raj Thilak
Additional Public Prosecutor
Page 1 of 9
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.20064 of 2022
ORDER
This criminal original petition has been filed to call for the records
pertaining to Crime No.101 of 2022 dated 22.06.2022 on the file of the
respondent police herein and quash the same.
2.The learned counsel for the petitioner submitted that the
respondent police registered a case against the petitioner in Crime No.101
of 2022 on 22.06.2022 for the offences punishable under Sections 8 & 9 of
the Tamil Nadu Gaming Act, 1930. The learned counsel for the petitioner
further contended that according to the prosecution, the petitioner was
playing cards at The Salem Literary Society, near Palace Theatre, Salem.
While the defacto complainant and other police are making a routine patrol
duty, they got information and entered into the Literary Society room and
arrested one person and four other persons escaped and seized an amount
of Rs.2,500/- and now, investigation is pending. The place of occurrence
viz., The Salem Literary Society is not a gaming house as taken in the Tamil
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Crl.O.P.No.20064 of 2022
Nadu Gaming Act, 1930. The definition of gaming house runs as follows:
In this Act, unless there is anything
repugnant in the subject or context,-
(a)"common gaming-house" means any
house, room, tent, enclosure, vehicle,
vessel, cyber cafe or any place whatsoever
in which instruments of gaming are kept
or used for the profit or gain of the person
owning, occupying, using or keeping such
house, room, tent, enclosure, vehicle,
vessel, cyber cafe or place, whether free of
cost or by way of charge for the use of
instruments of gaming or of the house,
room, tent, enclosure, vehicle, vessel,
cyber cafe or place and includes any
house, room, tent, enclosure, vehicle,
vessel, cyber cafe or place opened, kept or
used or permitted to be opened, kept or
used for the purpose of gaming;”
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Crl.O.P.No.20064 of 2022
3.Further, the learned counsel relied upon the following judgements;
1.The order of this Court in
Crl.O.P.(MD).No.13039 of 2015 dated
23.10.2018 (Veerabathran and 7 others Vs.
Inspector of Police, Solavanthan Police Station,
Madurai District)
2.The order of this Court in
Crl.O.P.(MD).No.21065 of 2018 and 5 other
matters in Crl.O.P.(MD).No.21065 of 2018
(Pandiyarajan and 33 others Vs.The Inspector
of Police, Arupukottai Town Police Station,
Virudhunagar District.
3.The order of this Court in Crl.O.P.17317
of 2021 dated 01.09.2022 (Mani and 5 others
Vs. The Sub Inspector of Police, Salem Town
Police Station, Salem District.
4.The order of this Court in W.A.No.2287
of 2011 dated 22.03.2012 (The Director General
of Police, State of Tamil Nadu, Chennai and
three others Vs. Mahalakshmi Cultural
Association, rep.by its Secretary, Old No.30,
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Crl.O.P.No.20064 of 2022
New No.58, North Boag Road, T.Nagar, Chennai
– 17.)
5.The order of this Court in
Crl.O.P.No.(MD) No.6568 of 2020 dated
24.07.2020 (D.Siluvai Venance Vs. The
Inspector of Police, Koodankulam Police
Station, Tirunelveli)
and further relied upon the judgment of this
Court in Raman Nair and others V. State 1990(2)
MWN(Cr)HC 195, in which, the relevant para is
as follows;
"7..... To decide a question whether a
club, where gaming in cards is carried on, is a
gaming house or not, the relevant consideration
is not whether any member of the club makes a
profit but whether the club, as a person,
occupying or using or keeping the house or room
makes a profit. The fact that the police recovered
huge sum of money on the table on the date in
question is not sufficient to throw any light as to
the club or the Secretary of the club deriving
anything from out of the money available on the
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Crl.O.P.No.20064 of 2022
table at the relevant time. The fact that the
members playing cards make a profit is not at all
a criterion to decide the question of the premises
being used as a gaming house. The huge
amount, available on the table at the relevant
time, may be going to the pockets of the members
playing the game of cards. As already indicated,
that is not sufficient to consider the premises of
the club a gaming house under Section 3 of the
Act. Once the premises is not proved to be a
gaming house, it goes without saying that the
petitioners cannot be stated to have committed
the offences under Sections 8 and 9 of the Act.
It has been repeatedly held that running of
a common gaming house is a primordial
requisite before a person could be convicted for
offence under Sections 8 and 9 of the Act and
gaming is not an offence per se. Even assuming
that the allegations put forth by the prosecution
is true, it cannot constitute an offence as alleged.
Even if the prosecution is allowed to continue, in
view of the facts and circumstance of the case, it
would be a futile exercise and there is no scope
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Crl.O.P.No.20064 of 2022
for conviction”.
6.In all these judgments, unless and until a person further played
game in the gaming house, he should not be prosecuted for an offence.
Therefore, without any evidence to show that the place of occurrence is a
gaming house, the continuation of the criminal proceedings against the
petitioner amounts to misuse of process of law. Therefore, he seeks to
quash the proceedings.
7.The learned Additional Public Prosecutor submitted that admittedly
the petitioner played rummy by using 53 cards at The Literary Society
room, near palace theatre, Salem and from the place of occurrence, the
respondent police seized a sum of Rs.2500/- and they arrested one person,
four persons were escaped, subsequently, they were identified.
8.Considering the submission made on either side and on perusal of
the records, it is seen that though the learned Additional Public Prosecutor
submitted that the petitioner played cards at The Literary Society room,
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Crl.O.P.No.20064 of 2022
near palace theatre, Salem, he is not able to show the place of occurrence
i.e. the Literary Society room, near palace theatre, Salem as a gaming
house. In the absence of any evidence or proof to show that the petitioner is
playing cards in a gaming house, registering a case against the petitioner
under Sections 8 & 9 of Tamil Nadu Gaming Act is unsustainable and
continuing the prosecution would amount to misuse of process of law and
is liable to be quashed. Accordingly, the FIR in crime No.101 of 2022
registered on 22.06.2022 for offences under Sections 8 & 9 of the Tamil
Nadu Gaming Act is hereby quashed. Accordingly, the criminal original
petition is allowed. Consequently, connected miscellaneous petition is
closed.
Index : Yes/No
Internet: Yes/No 13.10.2022
sms
To
1.The Sub Inspector of Police,
Salem Town Police Station,
Salem District.
Crime No.101 of 2022
2.The Public Prosecutor,
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.20064 of 2022
High Court, Madras.
V.SIVAGNANAM, J.,
sms
Crl.O.P.No.20064 of 2022
and
Crl.M.P.No.13179 of 2022
13.10.2022
https://www.mhc.tn.gov.in/judis
