CRL.M.C. No. 1168 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 8TH DAY OF APRIL 2013/18TH CHAITHRA 1935** ## **Crl.MC.No. 1168 of 2013 ()** ## **---------------------------** ## **CRIME NO. 447/2013 OF CHALAKKUDY POLICE STATION , TRISSUR** **PETITIONER(S)/ACCUSED NOS.1 TO 7: ---------------------------------------------** ## **1. JOY** ## **S/O.VARGHESE, THOTTATHIL HOUSE, KOTTAT, CHALAKKUDI.** ## **2. JOSE** - **S/O.RAPPAYI, PATHIYAMPARAMBIL HOUSE, KOTTAT CHALAKKUDI.** ## **3. JIBI PAUL** - **S/O.PAUL, THOTTATHIL HOUSE, KOTTAT,CHALAKKUDI.** ## **4. JOHNSON** - **S/O.ANTONY, PATHIYAMPARAMBIL HOUSE, KOTTAT CHALAKKUDI.** ## **5. ROMI** - **S/O.THOMAS, ULLATTIKULAM HOUSE, KOTTAT, CHALAKKUDI.** ## **6. JOHNY** - **S/O.KOCHU VAREETH, KANNOOKKADAN, KOTTAT, CHALAKKUDI.** ## **7. BABU** - **S/O.ANTONY, PATHIYAMPARAMBIL HOUSE, KOTTAT CHALAKKUDI.** **BY ADVS.SRI.P.J.MATHEW SRI.AJITH GEORGE** ## **COMPLAINANT(S)/RESPONDENT/STATE: -----------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031** **2. THE SUB INSPECTOR OF POLICE** ## **CHALAKKUDI POLICE STATION, THRISSUR DISTRICT-683631** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1168 of 2013 ()** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE FIR IN CRIME NO. 447/2013 OF CHALAKKUDI POLICE STATION DATED 17.02.2013** ## **RESPONDENTS ANNEXURES:** ## **NIL** ## **//TRUE COPY//** **P.A. TO JUDGE.** ## **dlk** ## **C.T. RAVIKUMAR, J. -------------------------------------------CRL.M.C. No. 1168 of 2013 --------------------------------------------** Dated this the 8[rd ] day of April, 2013 ## **ORDER** Petitioners are accused Nos. 1 to 7 in Crime No.447/2013 of Chalakkudi Police Station. They are indicted under sections 7 and 8 of the Kerala Gaming Act 1960 (for short 'the Act'). A search was conducted and FIR was registered under Section 5 of the Act. 2. The case of the prosecution is that on 17.02.2013 at 2020 p.m., the petitioners were found engaged in the game of cards with money namely 'Remmy'. They were found in a shed annexed to the house of one U.V.Thomas. The A.S.I of Police, Chalakkudy conducted the raid and arrested the petitioners. Consequently, Crime No.447/2013 was registered against the petitioners. 3. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor. 4. The core contention of the petitioners is regarding the absolute absence of the requisite ingredients to constitute offences under sections 7 and 8 of the Act. The learned counsel for the petitioners submitted that a scanning of the allegations **CRL.M.C. No. 1168 OF 2013** 2 made in Annexure-A1 FIR in the light of the decisions of this Court in **Kunhikannan v. Asst. Sub Inspector of Police** ( **1985 KLT 484)** and **(Danykutty v. State of Kerala) 1999 (3) KLT 930** would reveal that there is no mention in Annexure-A regarding 'any common gaming house' and as such the condition precedent to invoke Sections 7 and 8 of the Act was not satisfied. It is specifically contended that there is no whisper in the FIR to the effect that the room in question was used as a 'common gaming house' which is the essential ingredient to constitute an offence alleged against the petitioners. The learned counsel relied on paragraph 6 of the decision in **1985 KLT 484** (supra) to contend that merely because certain persons were found engaged in gaming and certain cards or money were seized from the said place, it cannot be said that those persons were engaged in gaming in the house of the said U.V.Thomas it would constitute an offence under section 8 of the Act. In the absence of such an allegation in the FIR that the above described room was being used as a common gaming house, the fact that the **CRL.M.C. No. 1168 OF 2013** 3 petitioners were found inside the room and found engaged in gaming and certain cards and money were seized from the place cannot a basis for launching prosecution against the petitioners. 5. A careful consideration of the allegations against the petitioners in Annexures-A1 bearing in mind the decisions of this Court in **1985 KLT 484** (supra) and **1999 (3) KLT 930** (supra) is necessary in the light of the rival contentions. In the decision in **1985 KLT 484** (supra), after referring to the relevant provisions under Gaming Act, more particularly, the definition of 'common gaming house' defined under section 2 (a) of the Act, it was held:- “6.There is absolutely no allegation regarding the existence or preservation of a common gaming house. There is not even a whisper that the first petitioner is conducting or preserving such a house. So also, there is no allegation that the other petitioners or the other accused were present or engaged in gaming in such a common gaming house. Gaming in a private building or place is not made offences. There is nothing to show that it is intended to be prohibited also. Even if the entire averments in Annexures-A1 to A3 are taken as correct what is established is only that 8 persons were found gaming in a private apartment used as an office or residence. It is unconnected with a common gaming house. The **CRL.M.C. No. 1168 OF 2013** 4 words used are not “gaming house”, but “common gaming house”. Common gaming house indicates that it is a place intended and used frequently as a common place for the purpose. The existence of such place and gambling conducted there may be public nuisance and the purpose of the Act is to prevent the same and make violations punishable as offences. 18.If the principles laid down in the decisions mentioned above are taken into account, it is clear that the papers do not disclose commission of offences for which the 8 persons are chargesheeted. Annexures-A1 to A3 do not disclose any information under S.5 or observance of formalities provided therein. There is no mention of any common gaming house. The Assistant Sub Inspector does not claim to have received any such information also. The only information he got was that some persons were gaming in a private apartment. He has not conducted any enquiry and he has not recorded any satisfaction. He prepared a search memo and conducted a search. Evidently, that is not sufficient. Even if the persons were gaming in that private building, since it is not alleged to be a common gaming house, it cannot constitute an offence.” 6. A scrutiny of Annexures-A1 would reveal that in this case, none of the accused persons were specifically accused of keeping a gaming house. Though they are accused of having committed offence under section 7 of the Act, there is no specific accusation against him that they were keeping a common gaming house. When such an allegation was not 5 ## **CRL.M.C. No. 1168 OF 2013** raised specifically against any of the accused merely because the other accused persons were found in such a place would not be a reason for alleging commission of offence under section 8 against them. In view of the above position obtained from Annexures-A1 and in the light of the decisions referred above, I am of the view that continuation of prosecution against the petitioners would be an abuse of process of Court and it would be a wasteful exercise. In the said circumstances, I am of the view that this is a fit case wherein this Court should invoke the power under section 482 of the Code of Criminal Procedure to bring about an abrupt termination of the proceedings. Resultantly, Annexure-1 FIR and all further proceedings pursuant thereto are quashed. This criminal miscellaneous case is allowed as above. Sd/- **C.T. RAVIKUMAR, JUDGE.** dlk ## **CRL.M.C. No. 1168 OF 2013** 6 ## **CRL.M.C. No. 1168 OF 2013** 7