Crl.M.C. Nos.3124/2011, 3350/2011, 4083/2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935** ## **Crl.MC.No. 3124 of 2011** **---------------------------ST NO.1301/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM CRIME NO.167/2011 OF MALAPPURAM POLICE STATION** **.......** ## **PETITIONER(S)/ACCUSED:** **------------------------------------------** ## **1. K.P.SUGUNASANKARAN,** **S/O.RAGHAVAN NAIR, MOOCHIKKAL PADIKKAL HOUSE, D.P.O. ROAD, MALAPPURAM DISTRICT.** ## **2. K.M.VENUGOPAL,** **S/O.GOPALAN NAIR, "AMOOLYA", D.P.O.ROAD, MALAPPURAM DISTRICT.** ## **3. T.P.DINESHKUMAR,** - **S/O.T.P.MADHAVAN, T.P.HOUSE, NEAR GUEST HOUSE, MALAPPURAM DISTRICT.** ## **4. AJAY.P.M.,** - **S/O.PADMANABHAN NAIR, 'SREE', MUNDUPARAMBA.P.O., MALAPPURAM DISTRICT.** **5. SYAM PRABHADH, S/O.RAMACHANDRAN NAIR, JANU NIVAS, D.P.O. ROAD, MALAPPURAM DISTRICT.** ## **6. M.V.AJAYAKUMAR,** **S/O.GOPALAN NAIR, PADMA NIVAS, KALAMPADI, MALAPPURAM DISTRICT.** ## **7. SOMASUNDARAM.C.,** - **S/O.UNNIKUTTY, KOZHIKKALATHIL HOUSE, VARANAKKAL, P.O.MUNDUPARAMBA, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.M.SATHYANATHA MENON** **..2/-** **Kss** **...2.....** ## **Crl.M.C.No.3124/2011** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **----------------------------------------------------------------------** **1. THE CIRCLE INSPECTOR OF POLICE, MALAPPURAM POLICE STATION, MALAPPURAM DISTRICT - PIN-676 505.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-01-2014 ALONG WITH CRL.MC. NO.3350/2011 AND CRL.MC.NO. 4083/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.3124/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX.A: COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.167/2011 OF MALAPPURAM POLICE STATION.** - **ANNEX.B: COPY OF THE CERTIFICATE DTD. 29/06/2011 ISSUED BY THE DISTRICT REGISTRAR (GENERAL) & REGISTRAR OF SOCIETIES, MALAPPURAM.** - **ANNEX.C: COPY OF THE SCENE MAHAZAR PREPARED BY THE POLICE IN CRIME NO.167/2011 OF MALAPPURAM POLICE STATION.** - **ANNEX.D: COPY OF THE LIST OF SEIZURE ITEMS PREPARED BY THE 1ST RESPONDENT.** - **ANNEX.E: COPY OF THE STATEMENT PREPARED BY THE 1ST RESPONDENT.** - **ANNEX.F: COPY OF THE STATEMENT GIVEN BY THE SECRETARY, MALAPPURAM MUNICIPALITY.** - **ANNEX.G: COPY OF THE FINAL REPORT FILED IN CRIME NO.167/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM.** - **ANNEX.G(a): TRUE ENGLISH TRANSLATION OF RELEVANT PAGE OF ANNEXURE.G.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **Kss** **P.A.TO JUDGE** ## **A.HARIPRASAD, J.** ## **------------------------------------------------** ## **Crl.M.C.Nos.3124, 3350 & 4083 of 2011** **-----------------------------------------------Dated this the 15[th] day of January, 2014.** ## **C O M M O N O R D E R** Petitions filed under Section 482 Cr.P.C. Petitioners in these cases stand charge sheeted for offences punishable under Sections 7 & 8 of Kerala Gaming Act, 1960 (in short 'the Act'). Questions of law arising in all cases being the same, all the petitions were heard together and disposed by this common order. 2. Allegations against the petitioners are as follows : ## **Crl.M.C No.3124/2011** Allegation in the F.I.R against the petitioners is that on 10-03-2011 while the police party was patrolling, they got reliable information that the petitioners were engaged in gaming in 'Fraser Hall Club'. The Detecting officer and party went to the place and found seven persons playing cards in violation of the provisions of the Act. ## **Crl.M.C No.3350/2011** Petitioners were found playing rummy in a club by name 'Travancore Club' on 31-12-2010 at about 22 hours and an amount **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 2** of Rs.2,10,290/- was recovered from the place. ## **Crl.M.C No.4083/2011** On 22-08-2011 at 18.30 hours, petitioners/accused were found playing a game called “pannimari” in Room No.101 of Plantation Valley Resort and an amount of Rs.4,77,000/- was recovered from them. Prosecution contended that they have committed the aforesaid offences. 3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 4. Before delving into the facts, it will be apposite to refer to the relevant legal provisions in the Act. Sections 2(a) and (b) of the Act defines the “common gaming house” in the following words : - _**“ 2. Definitions** :- In this Act, unless the context otherwise requires-_ - _(a) “common gaming house” means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for_ ## **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 3** _the profit or gain of the person owning, occupying using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever; and include any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted tobe opened, kept or used for the purpose of gaming;_ - _(b) “gaming” does not include a lottery but includes wagering or betting._ _**Explanation** :- For the purpose of this definition,_ _wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes in money or otherwise, in respect of any wager or bet, or any act, which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution;”_ ## 5. The offences charged against the petitioners fall under Sections 7 and 8 of the Act, which read as follows : **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 4** _“_ _**7. Penalty of opening, etc, a common gaming house** :- Whoever opens, keeps or uses, or permits to be used any common gaining house, or conducts or assists in conducting the business of any common gaming house or advance 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._ _**8. Penalty for being found gaining 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 imprisonment which may extend to one month or to fine which may extend to five hundred rupees or to both and any person found in any common gaining house during any gaming or playing therein shall be presumed until, the contrary be proved, to have been there for the purpose of gaming.”_ 6. Learned counsel for the petitioner in Crl.M.C ## **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 5** No.3124/2011 contended that none of the allegations in the F.I.R and the final report would show that the accused had committed any offence under the Act. To buttress this contention, a decision reported in _**Kunhikannan & Others v. Asst. Sub Inspector of Police (1985 K.L.T 484)**_ was pressed into service. Learned Single Judge after surveying the precedents on the point and considering the provisions held as follows : _“ For invoking Ss. 7 and 8, one of the conditions precedent is that there must be a common gaming house. Gaming in a private building or place is not made offences. There is nothing to show that it is intended tobe prohibited also. The 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.”_ ## **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 6** ## 7. In paragraph 10 following observation is also made : _“S.6 creates a presumption which has to be rebutted by the accused. If by a mere search the presumption is allowed tobe raised it is likely to affect innocent persons. That is the reason why the provisions of S.5 are incorporated. The provisions of S.5 will have to be taken as mandatory and observed strictly. Non -compliance of the provisions must therefore vitiate the search and the entire consequential proceedings. If only there is clear evidence to show that all the formalities under S.5 are observed the presumption under S.6 will become available. Otherwise, it may result in implication of innocent persons and thereby miscarriage of justice. That must be the reason why all the precautionary measures are provided.”_ 8. Learned counsel placed reliance on a decision in _**Danykutty v. State of Kerala (1999(3) K.L.T 930)**_ . Observations in **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 7** ## paragraph 4 are quoted hereunder for profit : _“ In the decisions cited above, it has been held that gaming in a common gaming house along will constitute an offence. Playing cards in a private house or a room in a lodging house cannot constitute an offence. Learned Public Prosecutor however contends that the place will come within the definition of a common gaming house. Common gaming house is defined in S.2 (a) of the Kerala Gaming Act, 1960 as any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent enclosure etc. whether by way of charge for the use of instruments of gaming or of the house, room tent, enclosure etc. Thus from the definition it is seen that even a residential house or a room in a hotel can be converted into a common gaming house if the other requirements in the definition are satisfied. But what realty makes it a common_ **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 8** _gaming house is that the gaming must be permitted or the instruments for the game must be kept there for the profit or gain of the person owning, occupying or using or keeping it. Only then, it will become a common gaming house. Under S.7, opening, keeping or using or permitting to use a common gaming house is the offecne, which invites the punishment therein. Under S.8m persons who are found gaming in a common gaming house are liable for conviction and punishment. It is unfortunate that a number of cases booked under the Kerala Gaming Act are either quashed or end in acquittal as the investigating officers do not understand what really constitutes a common gaming house and do not collect evidence on that aspect.....”_ 9. Learned counsel appearing for the petitioners in Crl.M.C No.3350/2011 contended that besides the above legal provisions, this case stands on a different footing because going by the allegations in the final report, the petitioners were playing rummy, ## **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 9** which is a game of skill. The decision rendered by the Supreme Court in _**State of A.P v. K.Sathyanarayana and Others (A.I.R 1968 SCC 825)**_ is pressed into service. That was a case based on public Gambling Act, 1867. Learned counsel placed reliance on the observations of the Supreme Court in paragraph 12, which reads as follows : _“ .... The game of Rummy is not a game entirely of chance like the 'three card' game mentioned in the Madras case to which we were referred. The 'three card' game which goes under different names such as 'flush', 'brag' etc. is a game of pure chance. Rummy on the other hand, requires certain amount of skill because the fall of the cards has to be memorized and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a_ **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 10** _game of bridge. In fact in all games in which cards are shuffled and dealt out there is an element of chance because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that Rummy is a game of chance and there is no skill involved in it.....”_ 10. Learned counsel appearing for the petitioners in Crl.M.C No.4083/2011 also submitted that there is no allegation either in the F.I.R or in the final report that the accused were found playing cards in a common gaming house. 11. Learned prosecutor would submit that the allegations are sufficient to attract the offences under Sections 7 and 8 of the Act as they were playing cards for gain. I carefully went through the first information and the final reports and all these cases. I am at loss to find any allegation that the accused were found engaged in gaming as defined under the Act in a common gaming house run for profit or gain of the person owing as defined in Section 2(a) of the Act. **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 11** Section 7, as quoted above, would reveal that the penalty is for opening, keeping etc. and to be used any common gaming house. In the absence of any allegation that the place of alleged gaming was a common gaming house, this section cannot be said to be attracted. 12. Section 8 of the Act is all about the penalty for being found gaming in a common gaming house. Here also the offence is not attracted in the absence of an allegation even in the F.I.R or in the final report. I am of the view that the petitioners are legally entitled to contend that the charge against them is unsustainable in the law. Therefore, this court is persuaded to invoke jurisdiction under Section 482 Cr.P.C to terminate a prosecution, which cannot stand the scrutiny of law. In the result, the petition is allowed. The final reports submitted by the investigating officer in all the above cases are hereby quashed. Further proceedings in S.T No.844/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, S.T No.1301/2011 on the file of the Judicial First Class **Crl.M.C.Nos.3124, 3350 & 4083 of 2011 12** Magistrate Court, Malappuram and S.T No.7491/2011 on the file of the Judicial First Class Magistrate Court - I, Chalakkudy are hereby quashed. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge