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In the High Court of Karnataka Dharwad Bench

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In the High Court of Karnataka Dharwad Bench IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 21 ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.100303/2015 BETWEEN : 1. SHANIYAR S/O NAGAPPA NAIK, AGE: 44 YEARS, OCC: AGRICULTURIST, R/O: BIDRAMANE, BASTI-KAIKINI, MURDESHWAR, TQ: BHATKAL, DIST: UTTARA KANNADA. 2. MANJAPPA S/O DURGAPPA NAIK, AGE: 33 YEARS, OCC: AGRICULTURIST, R/O: BEERANNANA MANE, TOODALLI, MURDESHWAR, TQ: BHATKAL, DIST: UTTAR KANNADA. 3. MADEV S/O NARAYAN NAIK, AGE: 42 YEARS, OCC: AGRICULTURIST, R/O: MOLEYANA MANE, DODDABALSE, MURDESHWAR, TQ: BHATKAL, DIST: UTTAR KANNADA. 4. MOHAN S/O SHANIYAR NAIK, AGE: 40 YEARS, OCC: AGRICULTURIST, R/O: KODSOOLMANE, DIVAGIRI, MURDESHWAR, TQ: BHATKAL, DIST: UTTAR KANNADA. 2 5. BHASKAR S/O MASTAPPA NAIK, AGE: 42 YEARS, OCC: AGRICULTURIST, R/O: BAILAPPANA MANE, MUTTALLI, TQ: BHATKAL, DIST: UTTAR KANNADA. 6. HAMEED SAB S/O BABASAHEB, AGE: 56 YEARS, OCC: BUSINESS, R/O: MEMMADI, TQ: KUNDAPUR, DIST: UDUPI. 7. MANJUNATH S/O NAGAPPA NAIK, AGE: 45 YEARS, OCC: AGRICULTURIST, R/O: KONERUMANE, CHOUTHANI, TQ: BHATKAL, DIST: UTTARA KANNADA. 8. HONNAPPA S/O NARAYANA MOGER, AGE: 34 YEARS, OCC: AGRICULTURIST, R/O: MUNDALLI, TQ: BHATKAL, DIST: UTTARA KANNADA. 9. TIRUMALA S/O GANAPATI MOGER, AGE: 29 YEARS, OCC: BUSINESS, R/O: BIDRAMANE, MURDESHWAR, TQ: BHATKAL, DIST: UTTARA KANNADA. 10. MANJUNATH S/O JATTAPPA NAIK, AGE: 58 YEARS, OCC: BUSINESMAN, R/O: HANUMAN NAGAR, TQ: BHATKAL, DIST: UTTARA KANNADA. 3 11. YOGESH S/O NARAYANA DEVADIGA, AGE: 42 YEARS, OCC: AGRICULTURIST, R/O: MOODABHAKTAL, MUTTALLI, TQ: BHATKAL, DIST: UTTARA KANNADA. …PETITIONERS (BY SRI.GANAPATI M BHAT, ADVOCATE) AND : THE STATE OF KARNATAKA, BY ITS P.S.I., MURDESHWAR POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, DHARWAD-580 011. …RESPONDENT (BY SRI.PRAVEEN K UPPAR, HCGP) THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS INITIATED U/S 80 OF KARNATAKA POLICE ACT, 1963 IN CRIME NO.114/2014 OF MURDESHWAR POLICE STATION AGAINST THE PETITIONERS PENDING ON THE FILE OF THE COURT OF PRL. JMFC, BHATKAL. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: 4 ORDER Heard the petitioners’ counsel and the learned HCGP for the respondent. 2. The factual matrix of the case is that on 05.09.2014 at about 4.00 p.m. when the complainant was in the station, received information that in the second floor of Murudeshwar Vaibhav Lodge on the northern portion of the room the persons are playing rummy instead of money they are using plastic token and based on the said information, the complainant along with his other staff by sending information to the Police Superintendent conducted the search and found this petitioner and other persons who were involved in the said game and found ten persons and in this regard mahazar was also conducted and case has been registered and seized different number of tokens and registered the case since they have used the plastic 5 token and they have committed the offence Under Section 80 of the Karnataka Police Act, 1963 . 3. The main contention of the petitioners in the petition is that when the alleged raid was conducted admittedly rummy was being played in the premises and the police nowhere seized money from the petitioners and also money cards more than one set from the spot and in order to harass the members of the club, the alleged raid was conducted. This Court in the judgment reported in LAWS(Karnataka) 1982-3-26 in the case of Ananthaswamy Iyer Vs. State of Karnataka held that game of rummy with cards is not game of chance but a game of skill. The collection of commission from the members of the club playing rummy does not make it a gambling house and the same does not attract Section 80 of the Karnataka Police Act. 6 4. The counsel appearing for the petitioners in his argument contends that when non-cognizable offence is taken place, the police ought to have taken the prior permission from the jurisdictional Magistrate and mandatory provision has not been complied and there is no any document for having obtained the permission and hence the very initiation of proceedings against the petitioners is liable to be quashed and hence prayed this Court to quash the proceedings. 5. Per contra, the learned HCGP in his argument contends that on credible information a raid was conducted and found this petitioner along with others playing with plastic token and hence case has been registered against the petitioners. 6. The counsel appearing for the petitioners in his argument in support of his contention he has relied upon the order passed in Crl.Pet.Nos.100319 and 7 100326 of 2014 of this Court decided on 25.07.2014, wherein it is held that regarding the provisions of Sections 173, 460 and 461 of Cr.P.C. was discussed and also Sections 78(3) of Karnataka Police Act and it is held that the offence under Section 78(3) of the Karnataka Police Act should be categorized as a non- cognizable offence as per II Schedule of Code, 1973 and entire investigation and cognizance of all further proceedings were vitiated by incurable defects and illegality and the petition was allowed. 7. Having heard the petitioners’ counsel and the learned HCGP, this Court has to examine whether it is a fit case to exercise powers under Section 482 of Cr.P.C. 8. Having considered the factual matrix of the case and also Section 155 of Cr.P.C. it is clear that when information is given to an officer in charge of a 8 police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the information to the Magistrate. Further Section 155(2) of Cr.P.C. says that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. 9. For having taken note of the provisions of Section 155(1) and (2) of Cr.P.C., the first duty upon the police officer after the receipt of credible information is he should make an entry in the book maintained in the station and refer the information to the Magistrate and he cannot proceed with the investigation without obtaining the permission from the Magistrate having power to try such case and in this case, the prosecution 9 has not relied upon any document for having obtained the permission and also the information given to the Magistrate in case of a non-cognizable offence and no such information is mentioned in the station dairy or no permission is obtained from the concerned Magistrate to proceed with the case and when such being the matter, the judgment which has been referred by the petitioners is aptly applicable to the case since this Court also in the said judgment held that if the offence is non- cognizable, the entire investigation and taking cognizance of all further proceedings were vitiated which is incurable defects. 10. In the case on hand also, the case has been registered and the charge sheet has been filed which is numbered as C.C.No.573/2015 and hence I am of the opinion that it is a fit case to exercise power under Section 482 of Cr.P.C. since the mandatory provision has not been complied under Section 155(1) and (2) of 10 Cr.P.C. and hence very initiation of proceedings is liable to be quashed. 11. In view of the discussions made above, I proceed to pass the following: ORDER The petition is allowed. Criminal proceedings initiated against the petitioners in Murudeshwar P.S. Crime No.114/2014 on the file of the Court of Principle JMFC, Bhatkal is hereby quashed. Sd/- JUDGE Sh .
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