Madras High Court
Unknown vs State Rep By on 31 August, 2023
Crl.O.P.No.19418 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2023
CORAM :
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.No.19418 of 2023
and Crl.M.P.Nos.13070 and 13072 of 2023
1. Govindan
2. Jai Shankar
3. Elumalaiyan
4. Om Prakash
5. Ghg. Harihara Subramanian
6. Jai Shankar
7. Abdul Ameer
8. Hari Prasad
9. Nagoor Hussain
10. Sekar Rao
11. Loganathan
12. Vetrivelan
13. Sundaram
14. Cherukuri Chamba Surya Rao
15. Balachandar
16. Sivakumar
17. Lavu Raghavarao
18. Kacheria Senthil Kumar
19. Lakshmana Rao
20. Ramakrishnan
21. Bolisetty Nageswar Rao
22. Ramu
23. Chandra Sekara Rao
24. Prasanth
25. Moorthy
26. Babu
27. Sudheer Reddy
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Crl.O.P.No.19418 of 2023
28. Babu Rajendra Prasad
29. Varma Raj
30. Muthu Mohan
31. Mudipalli Venkata Subramanian reddy
32. Jayaraj
33. Imthiyas
34. Karusala Nageswara
35. Jayanik Para .. Petitioners
Versus
State Rep by
The Inspector of Police,
R-4, Soundarapandiyanar Angadi Police Station,
T. Nagar, Chennai.
(Crime No.24 of 2023) .. Respondent
Prayer : Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to call for the records relating to the C.C.No.1660 of
2023 on the file of the learned Metropolitan Magistrate No.XVII, Saidapet,
Chennai and quash the same by allowing this Criminal Original Petition.
For Petitioners : Mr.M.Mohamed Riyaz
For Respondent : Mr.A.Damodaran,
Additional Public Prosecutor
ORDER
This petition has been filed seeking to quash the proceedings in
C.C.No.1660 of 2023 pending on the file of the learned Metropolitan
Magistrate No.XVII, Saidapet, Chennai.
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Crl.O.P.No.19418 of 2023
2. Heard Mr.M.Mohamed Riyaz, learned Counsel for the petitioners
and Mr.A.Damodaran, learned Additional Public Prosecutor for the
respondent.
3. The Final Report has been filed by the respondent Police for the
offences under Sections 45 and 46 of the Tamil Nadu City Police Act, 1888.
4. The issue involved in this case is squarely covered by the earlier
order passed by the Madurai Bench of this Court in Crl.O.P.(MD).No.7087
of 2017, dated 25.10.2019. The relevant portions are extracted hereunder:-
"5.The only issue that requires
consideration of this Court is whether the
gaming with cards by the accused persons inside
the property belonging to A1, will attract the
offence under Section 12 of the Tamilnadu
Gaming Act. It will be relevant to take note of the
judgments cited by the learned counsel for the
petitioners. In the Judgment passed in M.James
Arockia Samy Vs. The Inspector of Police,
Aaravayal Police Station, Devakottai Taluk,
Sivagangai District, this Court held as follows:
"7.In the case on hand, the place where
the alleged occurrence is taken place,
is not a common gaming house as
defined under Section 3 of the Tamil
Nadu Gaming Act, 1930. It is also
relevant to consider Sections and 9 of
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Crl.O.P.No.19418 of 2023
the Tamil Nadu Gaming Act, 1930,
which reads as follows :
" 8.Penalty for opening etc., a
common gaming-house: whoever
opens, keeps or uses or permits to
be used any common gaming
house or conducts or assists in
conducting the business of any
common gaming house or
advances or furnishes money for
gaming therein, shall be liable on
conviction to fine not exceeding
five hundred rupees, or to
imprisonment not exceeding three
months, or to both.
9.Penalty for being found
gaming in a common gaming
house:whoever is found gaming or
present for the purpose of gaming
in a common gaming house shall,
on conviction, be liable to fine not
exceeding two hundred rupees or
to imprisonment not exceeding
one month; and any person found
in any common gaming house
during any gaming or playing
therein shall be presumed, until
the contrary be proved, to have
been there for the purpose of
gaming."
8.In this regard, the learned counsel for
the petitioner has relied upon the
Judgment reported in 1990(2) MWN
Crime 195 in Raman Nair & 13 others
& Durai Maharajan V.State, Wherein,
this Court has held as follows:
"7... To decide a question whether
a Club, where gaming in cards is
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Crl.O.P.No.19418 of 2023
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 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.
10.It has been repeatedly
held that running of a common
gaming house is a primordial
requisite before a person could be
convicted for an offence under
Sections 8 and 9 of the Act and
gaming is not an offence per se.
Even assuming that the
allegations purforth by the
prosecution is true, it cannot be
constituted an offence as alleged
by the prosecution. In these
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Crl.O.P.No.19418 of 2023
circumstances, 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 for conviction. Therefore,
the materials collected in support
of the charges do no disclose the
commission of any of the offence
or make out a case against the
petitioners/accused and as such,
the entire criminal proceedings
cannot be sustained.
11.Further, in this case,
there is absolutely no mentioned
in the report about anybody
running a common gaming house.
There is no mention about the
first petitioner permitting the use
of the premises for gaming
activities with a view to derive
profit or gain for himself.
Therefore, the place in which the
petitioners played in 'vetty cheetu'
and recovered huge sum by the
respondents is not a common
gaming house. Time and again,
this Court has pointed out that
gaming is not an offence per se
but it is punishable only when it is
carried on in a public place for
commercialisation purpose and in
a common gaming house with
profit motive as contemplated
under the Gaming Act. However,
the law enforcing agencies
ignoring the marked differences
between play of games in a house
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Crl.O.P.No.19418 of 2023
or club and gaming activities
carried in a common gaming
house indulge in endless
prosecution merely harass the
innocent. Though the new VIP
Club obtained orders to carry on
lawful activities in the recreation
club and petition to
Superintendent of Police to direct
the Inspector not to prohibit the
running of club, the respondent
has thought fit to raid the Club. It
is nothing but malicious
prosecution and it has to be
curtailed."
9.In view of the above facts and
circumstances of the case, this Court is
of the considered opinion that the
premises, which was subjected to
search and seizure under Section 5 of
the Gaming Act, could not be termed as
a common gaming house, and
therefore, continuance of proceedings,
as against the petitioner, would be a
clear abuse of process of law and the
abuse of process of Court. Every case
of playing cards, particularly during
festive season, in private property not
for the gain and profit of the occupier
or owner of the property cannot be
termed as gambling in a common
gaming house, under the Act, to
constitute an offence."
6.In the Judgment passed in D.Kannan Vs.
The Inspector of Police, Thirupuvanam Police
Station, Thirupuvanam, Sivagangai District,
this Court held as follows:
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Crl.O.P.No.19418 of 2023
"5.The complainant in the case is the
first respondent Inspector of Police. In
the instant case the accused admittedly
have been found gambling in the house
belonging to the second accused. The
present case is an instance of persons
gambling over a card game and there is
no accusation of the second accused
using his house as a gaming house and
towards reaping profit or gain by so
doing.
6. The observation in the judgment of
the Panjab - Haryana High Court in
Kanwardeep Singh vs. Union Territory
Chandigarh on 24 December, 2008 in
Crl.M.P.No.54959 of 2006 are
apposite:
"In view of the facts and
circumstances of the case, I am of
the considered opinion that the
premises, which was subjected to
search and seizure under Section 5
of the Act, could not be termed as
a common gaming house, and
therefore, continuance of
proceedings, as against the
petitioner, would be a clear abuse
of the process of law and the
abuse of process of court. There is
no dispute to the fact that the
incident is in immediate proximity
in time to Diwali festival. Any and
every case of playing cards,
particularly during festive season,
in private property not for the gain
and profit of the occupier or
owner of property cannot be
termed as gambling in a common
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Crl.O.P.No.19418 of 2023
gaming house, under the Act, to
constitute an offence. I am of the
opinion, taking in view the facts
and circumstances of the case,
that it is a case of playing cards
during Diwali festivities. The
incident is neither in a public
place nor in a common gaming
house (as defined under the Act).
The facts and circumstances do
not spell out commission of any
offence under the Act.
7. In the case referred to, the
incident had taken place during the
Diwali festival. In the instant case, the
incident had taken place during the
Pongal festival.
8. This Criminal Original
Petition is allowed and F.I.R. in Crime
No.21 of 2015 on the file of the
respondent police is quashed.
Consequently, connected M.P.(MD)
No.1 of 2015 is closed."
5. In view of the above, since the place at which the accused persons
are said to have played Cards is not a gaming house or a public house, the
offence under Sections 45 and 46 of the Tamil Nadu City Police Act, 1888
is also not made out. The continuation of the proceedings before the Court
below will only result in abuse of process of Court and hence, the
proceedings in C.C.No.1660 of 2023 shall stand quashed and this Criminal
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Crl.O.P.No.19418 of 2023
Original Petition stand allowed. Consequently, connected miscellaneous
petitions are closed.
31.08.2023
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
1. The Metropolitan Magistrate No.XVII,
Saidapet, Chennai.
2. The Inspector of Police,
R-4, Soundarapandiyanar Angadi Police Station,
T. Nagar, Chennai.
3. The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.19418 of 2023
N.ANAND VENKATESH, J.
grs
Crl.O.P.No.19418 of 2023
and Crl.M.P.Nos.13070 and 13072 of 2023
31.08.2023
https://www.mhc.tn.gov.in/judis
