Rajasthan High Court - Jodhpur

Deepak Bhadada vs State Of Rajasthan (2025:Rj-Jd:752) on 7 January, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:752]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                   S.B. Criminal Misc(Pet.) No. 2310/2024

Deepak Bhadada S/o Late Shri Satyanarayan, Aged About 45
Years, B/c Bahdada R/o 153 Main Sector Shastri Nagar Dist
Bhilwara
                                                                            ----Petitioner
                                           Versus
State Of Rajasthan, Through PP
                                                                          ----Respondent


For Petitioner(s)               :      Mr. Anand Purohit, Sr. Advocate asst.
                                       by Mr. Mayank Roy
For Respondent(s)               :      Mr. Vikram Singh Rajpurohit, Dy.G.A.
                                       Mr. Ravindra Singh Bhati, Asst.G.A.



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

07/01/2025

1. Learned counsel for the petitioner submits that the

controversy involved in the present case is squarely covered

by a judgment dated 21.11.2022 of this Court rendered in

S.B. Criminal Misc. No.2177/2021 (Kezad Vs. State of

Rajasthan & Ors.); for ready reference, the same is

reproduced herein under:

"The instant miscellaneous petition has been preferred for consideration of this Court under Section 482 of CrPC against the orders dated 18.07.2020 passed by learned Additional Sessions Judge No.1, Abu Road, District Sirohi in Criminal Revision No. 13/2020 as well as against the order dated 30.11.2019 passed by learned Additional Chief Judicial Magistrate, Mount Abu, District Sirohi in Criminal Case No. 553/2019.

Learned counsel for the petitioner submits there is no definite evidence on record that can indicate involvement of the petitioner in the commission of offences as alleged against him. It cannot be said that the petitioner had

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knowledge of the fact that the other four accused persons were playing cards in the closed room of the guest house just because he owned the place.

On the other hand, learned public prosecutor submits that the petitioner was running an Online Gaming House and he deserves to be booked under the Ordinance.

Heard learned counsel for the petitioner as well as learned Public Prosecutor and perused the material available on record.

The capsuled facts of the case are that upon receiving information at the Police Station, Mount Abu on 16.08.2019 that some people were gambling in a closed room in the Mogli Forest Guest House, the police obtained a search warrant, searched the Mogli Forest Guest House and found four persons playing cards in one of the rooms. It is alleged that they were gambling and were putting their money on the line wherein the loss of one was becoming the gain of another.

The four persons were arrested under Sections 3 and 4 of the Rajasthan Public Gambling Ordinance, 1949 (hereinafter referred to as "the Ordinance") and a complaint came to be submitted by the SHO, PS, Mount Abu, District Sirohi before the learned ACJM, Mount Abu against the four accused as well as the petitioner who is the owner of the Guest House from where the four accused persons were arrested.

The learned ACJM, Mount Abu took cognizance of the offences provided under Sections 3 and 4 of the Rajasthan Public Gambling Ordinance, 1949 against the four accused as well as the petitioner vide order dated 30.11.2019. Aggrieved by the order dated 30.11.2019, the petitioner filed Criminal Revision No. 13/2020 before the learned Additional Sessions Judge No. 1, Abu Road, District Sirohi which got dismissed and the order dated 30.11.2019 was upheld by the learned Sessions Judge vide order dated 18.07.2020.

Discontented with the orders dated 30.11.2019 and 18.07.2020 passed by the court of first instance and the revisional court respectively, the present miscellaneous petition came to be filed before this Court.

It is revealed from the bare perusal of the complaint that the four accused persons other than the petitioner

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were allegedly gambling while playing cards and were found violating the provisions of the Ordinance but neither the petitioner was present in the room when the raid was made nor was he found to be complicit in commission of any offence as stipulated under the Ordinance.

Section 3 of the Ordinance prescribes the penalty for owning or keeping or having charge of a gaming house and in respect of an owner, it provides that whoever opens, keeps or uses any house, room, tent, enclosure, space, vehicle or place etc. as a common gaming house or knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming house, is liable to be punished under this provision. There is nothing on record to show that there was knowledge on part of the petitioner that the four guests who have been arraigned as accused in this case were playing cards while gambling money or that they were playing in a manner which would violate the provisions of the Ordinance. It cannot be presumed that the petitioner willfully or knowingly permitted the use of his Guest House as a common gaming house as per Section 3 of the Ordinance just by virtue of him being the owner of the Guest House.

Section 2(4) of Rajasthan Public Gambling Ordinance, 1949 defines what a 'common gaming house' means and it reads as under:-

"(4) "Common Gaming House" means -

(i) in the case of gaming

(a) on the market price of cotton, opium or other commodity or on the digits of the number used in stating such price, or

(b) on the amount of veriation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation, or (c) on the market price of any stock or shares or on the digits of the number used in stating such price, or

(d) on the digits of papers or bales manipulated from within jars or other receptacles, or

(e) on the occurrence or-occurrence of rainfall or other natural event, or

(f) on the quantity of rainfall or on the digits of the number used in staing such quantity or any other sign or symbol denoting the extent of such quantity, or

(g) on the extent of the occurrence of any other natural event, any house, room, tent, enclosure, space, vehicle, vessel or any place whatsoever in

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which such gaming takes place or in which instruments of gaming are kept or used for such gaming, and

(ii) in the case of any other form of gaming any house, room, tent, enclosure, space, vehicle, vessel or any place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping any such instrument, or such house, room, tent, enclosure, space, vehicle vessel or place whatever by way of charge for the use of the same or otherwise howsoever.

In the present set of facts, we are concerned with sub-clause (ii) of clause 4 of Section 2 of the Ordinance. The conditions necessary for applicability of sub-clause (ii) of Section 2 of the Ordinance have been enumerated as under:-

3. Conditions for applicability of sub-clause (ii) - [1] For the applicability of sub-clause (ii), the following conditions have got to be fulfilled -

(1) Instruments of gaming must be kept or used in the premises in question (2) The Keeping or using of the instruments aforesaid must be for the profit or gain of the person owning, occupying, using or keeping such premises. (3) Such profit or gain may be by way of charge for the use of the premises or the instruments or in any other manner whatsoever.

It is scrutable from a simple reading of the afore- mentioned provisions that in order for the Guest House to qualify as a Common Gaming House as defined under Section 2(4)(ii) of the Ordinance, there should have been instruments of gaming kept at the alleged Common Gaming House, the instruments should have been kept for profit or gain of the person owning, occupying, using or keeping the alleged Gaming House and the profit or gain can be accrue by either charging for the use of premises of the Gaming House, or the use of instruments kept at the Gaming House or in any other manner. The present factual matrix does not reveal any circumstances that can implicate the owner as no such instruments of gaming have been recovered from the premises except the cards which were recovered from the other four accused persons and there was no gain or profit to the petitioner from the game of cards that the other accused were engaged with. When there were no instruments present at the Common Gaming House apart

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from the deck of cards recovered from the petitioners, then the question of use of such an instrument to gain profit does not arise. Thus, the conditions requisite to be fulfilled in order to deem the Guest House of the petitioner to be a Common Gaming House are undeniably missing.

In view of the observations made hereinabove, this Court is of the firm view that the impugned order taking cognizance is bad in the eyes of law qua the petitioner and thus, continuance of proceedings against him would tantamount to an abuse of process of law.

Accordingly, the misc. petition is allowed and the order dated 18.07.2020 passed by learned Addl. Sessions Judge No.1, Abu Road, Distt. Sirohi in Criminal Revision No.13/2020 as well as the order dated 30.11.2019 passed by learned Addl. Chief Judicial Magistrate, Mount Abu, Distt. Sirohi in Criminal Regular Case No.553/2019 are hereby quashed and set aside."

2. The position of law as enunciated and discussed in the case of

Kezad (supra) has also same here in this case and therefore,

the case of the petitioner is examined in light of the above and

it is felt that no legitimate grounds are there to allow

continuation of criminal proceedings against the petitioner.

3. Accordingly, the instant criminal misc. petition is allowed and

the complaint No.01/2024 dated 03.03.2024 registered at

Police Station Kotwali, District Bhilwara and submitted before

the Court of learned Additional Chief Judicial Magistrate No.1,

District Bhilwara for the offence under Section 3/4 of

Rajasthan Public Gambling Ordinance, 1949 are hereby

quashed and set aside.