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IN THE HIGH COURT OF AT BENGALURU

DATED THIS THE 01ST DAY OF FEBRUARY, 2019

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

CRIMINAL PETITION No.96/2019

BETWEEN:

1. SHIVANNA S/O NANJAIAH AGED ABOUT 52 YEARS, BYCHANAHALLI, KUSHALNAGARA TOWN SOMWARAPETE TALUK -571 234

2. DEVARAJU S/O. LATE THIMMAIAH AGED ABOUT 42 YEARS, KOPPA VILLAGE, TALUK MYSURU DISTRICT-571104

3. BABU T S/O. MOHAMMED AGED ABOUT 54 YEARS, 7TH HOSAKOTE VILLAGE, SOMWARAPETE TALUK KODAGU DISTRICT-571237

4. KIRAN S/O NARAYANA AGED ABOUT 44 YEARS, KUDIGE VILLAGE, SOMWARAPETE TALUK KODAGU DISTRICT-571234

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5. RAJESHA S/O. PONNAPPA AGED ABOUT 33 YEARS, H NO.37, GANDADAKOTE KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571 234

6. JARJU T T S/O. T J THAMAS, AGED ABOUT 41 YEARS, BASAVESWARA BADAVANE KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571 234

7. MAANU @ RAVI S/O DEVAIAH @ NARAYANA, AGED ABOUT 53 YEARS, BASAVESWARA BADAVANE VILLAGE, PERIYAPATNA TALUK MYSURU DISTRICT -571107

8. DEVARAJU S/O SANNAPPA AGED ABOUT 37 YEARS, BASAVESWARA BADAVANE KUDIGE VILLAGE, SOMWARAPETE TALUK KODAGU DISTRICT-571 234

9. RAJU S/O KARIYAPPA, AGED ABOUT 47 YEARS, BASAVESWARA BADAVANE BYLAKUPPE VILLAGE PERIYAPATNA TALUK MYSURU DISTRICT-571107

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10. KUMARA D A., S/O. RANGASWAMY AGED ABOUT 43 YEARS, RATHABEEDI KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571234

11. PARAMESHA S/O ANNAIAH AGED ABOUT 31 YEARS, HALUMATHA, KUDLURU VILLAGE, SOMWARAPETE TALUK KODAGU DISTRICT-571234

12. HARISHA S/O. ANNEGOWDA AGED ABOUT 36 YEARS, GUMMANAKOLLI VILLAGE, SOMWARAPETE TALUK KODAGU DISTRICT-571 234

13. SAJEER AHMED S/O NAVAB JAAN AGED ABOUT 40 YEARS, DANDINAPETE KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571 234

14. MADHUKUMARA S/O LATE BASAVARAJAPPA AGED ABOUT 45 YEARS, H NO.49, AVARTHI VILLAGE, PERIYAPATNA TALUK MYSURU DISTRICT-571107

15. VENKATESHA S/O PUVAPPA

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AGED ABOUT 45 YEARS, DANDINAPETE KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571 234

16. GIRI S/O LATE PUTTAPPA AGED ABOUT 47 YEARS MULLASOGE VILLAGE, KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571 234

17. UPENDRA D C S/O LATE CHIKKANNASHETTY AGED ABOUT 63 YEARS, H NO.181, 3 RD DIVISION (OMKARA BADAVANE) MULLASOGE VILLAGE, KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571234

18. UJEEN MYATHO S/O MYATHO AGED ABOUT 29 YEARS, SHYLAJA BADAVANE KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT-571234

19. KANTHARAJU S/O CHANDRAPPA K B AGED ABOUT 43 YEARS, H NO.132, 1 ST BLOCK, KUSHALNAGARA SOMWARAPETE TALUK KODAGU DISTRICT -571 234

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20. KANTHARAJU S/O. CHIKKANNASHETTY AGED ABOUT 51 YEARS, MAIN ROAD BYLAKUPPE VILLAGE, PERIYAPATNA TALUK, MYSURU DISTRICT-571107

21. KHADAR M G S/O. ABDUL GAFAR M G AGED ABOUT 52 YEARS, B M ROAD KOPPA VILLAGE, PERIYAPATNA TALUK MYSURU DISTRICT-571104

22 SHIVAPRAKASH S/O. LATE JAVARAPPA AGED ABOUT 48 YEARS, R/AT 2 ND BLOCK KOPPA PERIYAPATNA TALUK MYSURU DISTRICT-571104

23. DEVAIAH S/O. LATE C D BOJAPPA AGED ABOUT 68 YEARS, R/AT GOLDEN TEMPLE ROAD, KOPPA, PERIYAPATNA TALUK MYSURU DISTRICT-571104 ... PETITIONERS

(BY SRI AMITH NAYAK, ADV. ON BEHALF OF SRI K.V.THIMMAIAH, ADV.)

AND:

1. THE STATE OF KARNATAKA BY THE POLICE OF BYLAKUPPE POLICE STATION MYSURU DISTRICT -571107

REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560001

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2. LOKESHA P MAJOR IN AGE OCCU: POLICE OFFICER PSI, BYLAKUPPE POLICE STATION PERIYAPATNA TALUK MYSURU DISTRICT-571104 ... RESPONDENTS

(BY SRI S RACHAIAH, HCGP.)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.847/2016 (CRIME NO.55/2016) OF BYLAKUPPE POLICE STATION, DISTRICT) REGISTERED FOR THE OFFENCE P/U/S 79 AND 80 OF KARNATAKA POLICE ACT, NOW PENDING ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE AND JMFC, PERIYAPATNA.

THIS CRIMINAL PETITION COMING ON FOR ADMISISON THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Petitioners are before this Court for quashing of the proceedings pending in C.C. No.847/2016 (Crime

No.55/2016), registered by Bylakuppe police station, Mysuru

District for the offences punishable under Sections 79 and 80 of the Karnataka Police Act which proceedings are pending on the file of learned Senior Civil Judge & JMFC, Periyapatna.

2. The gist of the prosecution case is as follows:-

The Sub Inspector of Police had received a credible information on 05.06.2016 at about 5.00 p.m., that in the

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Friends Recreation Association Club near Koppa Village on the way to Golden Temple some persons were playing cards game of “Andhar Bahar” by indulging in gambling. Police have raided said place along with staff on the same day, that is, on 05.06.2016 at about 6.30 p.m., and found that petitioners were playing the game “Andhar Bahar” and alleging it is a game of chance, they seized cash of

Rs.1,48,520/- and other materials and apprehended petitioners.

3. I have heard the arguments of Sri Amith Nayak on behalf of Sri.K.V.Thimmaiah, learned counsel appearing for the petitioners and Sri S.Rachaiah, learned HCGP appearing for the State. Perused records.

4. The contention of Sri Amith Nayak, learned counsel appearing for the petitioners is that offences alleged against petitioners are non-cognizable and without obtaining permission from the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C, same has been registered and

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investigation has been taken up and as such proceedings cannot be continued as it is illegal. He would also elaborate his submissions by contending that playing the game of cards as “Andhar Bahar” is a game of skill and not a game of chance. Hence, prays for quashing of proceedings.

5. However, the learned High Court Government

Pleader appearing for the respondent-State would defend the initiation of prosecution against petitioners and prays for dismissal of the petition contending permission from

Magistrate had been obtained.

6. Having heard the learned Advocates appearing for the parties and on perusal of records, it would not detain the

Court for long to accept the submissions of learned counsel appearing for the petitioners inasmuch as material on record does not disclose that permission as prescribed under Sub-

Section (2) of Section 155 of Cr.P.C. had been obtained from the jurisdictional Magistrate by the respondent before registering the FIR in question against the petitioners for the

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offences punishable under Sections 79 & 80 of the Karnataka

Police Act which undisputedly is a non-cognizable offence.

Though Mr. Rachaiah would rely upon the communication dated 05.06.2016 to contend such permission was obtained from Magistrate before proceeding to raid, it cannot be held that permission granted in the instant case by the Magistrate would meet the requirement of law. Section 155(1) of Cr.P.C. mandates that such information received by the police shall be entered in a Book to be kept by such Station House Officer in such Form. Thus, entering of substance of information so received in a Book kept at Police Station and reference to it to the Magistrate is necessary. Likewise apply of judicial mind by the Magistrate to the material placed by police before according permission is also necessary. There is no material on record to this effect and communication dated 05.06.2016 relied upon by prosecution does not satisfy the requirement of

Section 151(1) and (2) of Cr.P..C. as noticed hereinabove.

Thus, illegality in not obtaining permission as required under

Section 155(2) of Cr.P.C. continues and as such the

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continuation of proceedings against petitioner would be abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioners have to succeed.

Hence, the following:-

ORDER

(i) Criminal Petition is hereby allowed.

(ii) Proceedings in C.C.No.847/2016 (Crime No.55/2016), pending on the file of Senior Civil Judge and JMFC, Periyapatna stands quashed and petitioners are acquitted of the offence alleged.

In view of disposal of the petition, I.A.No.1/2019 for stay does not survive for consideration and it stands rejected.

Sd/- JUDGE

VM CT:HR