Rajan and Others v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** # **FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938** ## **Crl.MC.No. 1762 of 2013 ()** **--------------------------CRIME NO. 404/2012 OF WANDOOR POLICE STATION , MALAPPURAM DISTRICT** **---------------------------** ## **PETITIONER(S):** ## **-------------** ## **1. RAJAN,** **S/O.VELAYUDHAN,PUTHUPARAMBIL HOUSE, MAMPATTUMOOLA,MALAPPURAM DISTRICT** ## **2. NOUSHAD** **S/O.UMMER,PUTHENPEEDIKA HOUSE, PALLIKUNNU, WANDOOR, MALAPPURAM DISTRICT** ## **3. KUNJIBAVA** **S/O.MUHAMMEDUNNI,PUTHIYATHU HOUSE, MANJERI ROAD, WANDOOR, MALAPPURAM DISTRICT** ## **4. ABDUL SALAM** **S/O.MOIDEEN,THAYYIL HOUSE, ELAMGOOR, PELEPPURAM, MALAPPURAM DISTRICT.** ## **5. MOHAMMED** ## **S/O.MOYIN, THECHIYODAN HOUSE, CHEMBRASSERY , MALAPPURAM DISTRICT.** ## **6. ABDUL MAJEED** ## **S/O.AHAMMEDKUTTY, MUKKANNAN HOUSE, WANDOOR TOWN, MALAPPURAM DISTRICT** ## **7. MOHAMMED** ## **S/O.ABDU, KALATHIL HOUSE, NELLIPARAMBU, MANJERI, MALAPPURAM DISTRICT** ## **8. UMMER (WRONGLY SHOWN AS KAMAR IN ANNEXURES II & III) S/O.ABBAS, THORAPPA HOUSE,ELAMGOOR, PELEPPURAM, MALAPPURAM DISTRICT** ## **9. MOOSA.T** **S/O.MOHAMMED,THECHIYODAN HOUSE, CHEMBRASSERY, MALAPPURAM DISTRICT.** ## **Crl.MC.No. 1762 of 2013 ()** ## **10. ASSAINAR** **S/O.MOIDEEN,KARUMAROTTIL HOUSE, KOTTAKUNNU, POROOR, MALAPPURAM DISTRICT** ## **11. LATHEEF** ## **S/O.MOHAMMED,PULIYAKUNNAN HOUSE, WANDOOR , MALAPPURAM DISTRICT** ## **12. KAREEM** ## **S/O.MOHAMMED,THOPPIL HOUSE, SHARRY,MALAPPURAM DISTRICT** ## **13. MOHAMMED** **S/O.AHAMMEDKUTTY,THOREN HOUSE, KODASSERY,CHEMBRASSERY,MALAPPURAM DISTRICT.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENT(S):** ## **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,KOCHI 682 031.** **2. THE SUB INSPECTOR OF POLICE WANDOOR POLICE STATION, WANDOOR ,MALAPPURAM DISTRICT,PIN 679 328.** ## **BY PUBLIC PROSECUTOR SRI. K.N.SWAMIDASAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1762 of 2013 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------ANNEXURE I CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.404/2012 OF WANDOOR POLICE STATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERINTHALMANNA.** **ANNEXURE II TRUE COPY OF THE JUDGMENT IN WPC NO.28881/2006 DATED 20/11/2006** **ANNEXURE III CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.404/2012 OF WANDOOR POLICE STATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERINTHALMANNA** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** //True copy// P.A. TO JUDGE SHG/ ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1762 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of December, 2016** ## **O R D E R** The petitioners are 13 in number. Originally the petition was filed to quash the FIR in crime No.404/2012 of Wandoor Police Station, Malappuram District. Pending the said application, final report was filed before the court and cognizance was taken for offences under Sections 7 & 8 of the Kerala Gaming Act 1960. Hence the original application got amended to suit the stage of the case. Now the case is pending as S.T.No.188/2013 before the Judicial First Class Magistrate Court, Perinthalmanna. 2. When the petition came up for hearing, the learned counsel appearing for the petitioners submitted before me that the petitioners herein are originally the members of Friends Sports & Recreation Club, an association registered under the Society's Registration Act XXI, 1860. It is the submission that there was some grievance as the police used to harass the members of the said Club. As such they moved WP(C)No.28881/2010. It appears that on a submission of the Government Pleader to Crl.M.C.No.1762 of 2013 2 the effect that the police will not harass the club members, recording the same, the petition was closed. While disposing the said writ petition it is also made clear by this court that “if any illegal activities are conducted in the club, police will take appropriate action only according to law”. 3. The submission of the learned counsel for the petitioners is that now alleging that the members of the club played (pullivali) a crime as stated above is registered showing the place as an open terrace belonging to one Muhammedali, Pallikkunnu. The main argument advanced before me is that as per Section 7 of the Gaming Act, opening, keeping or using or permitting to use a common gaming house is an offence, which invites the punishment and under Section 8 of the said Act, persons who are found gaming in a common gaming house are liable for conviction and punishment. In this case, it is the submission that the above said Muhammedali, Pallikkunnu is not an accused. There is no allegation that he conducted a common gaming house. There is no case for the above said Muhammedali Crl.M.C.No.1762 of 2013 3 that there was trespass and committed an offence. It is the submission that first there should be a common gaming house and then only there can be a commission of an offence punishable under Section 8 of the Kerala Gaming Act. To buttress the said contention, the learned counsel relied on a Single Bench decision of this Court in **Sunil v. State of Kerala [CDJ 2014 Ker HC 1014]** . Paragraph 5 and 7 of the decision state as follows: **“** 5. Learned counsel placed reliance on a decision in Danykutty v. State of Kerala : 1999 KHC 699 : 1999 (3) KLT 930 : 1999 (2) KLJ 1048 Observations in 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 Section 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 reality makes it a common gaming house is that the gaming must be permitted or the instruments for the game must be kept therefor the profit or gain of the person owning Crl.M.C.No.1762 of 2013 4 occupying or using or keep it. Only then, it will become a common gaming house. Under Section 7, opening, keeping or using or permitting to use a common gaming house is the offence, which invites the punishment therein. Under Section 8 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 constitute a common gaming house and do not collect evidence on that aspect.... 7. 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. 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. 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 FIR 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.PC to terminate a prosecution, which cannot stand the scrutiny of law.” 4. Thus, what comes out is that there should be a common gaming house and the alleged gaming at such a gaming house alone will attract a penalty under Section 8 of the Act referred above. It is also brought to our notice that Crl.M.C.No.1762 of 2013 5 the allegation is that Pullivali is conducted therein. Pullivali is not a prohibited game which can attract an offence under Section 8 of the Kerala Gaming Act. 5. After going through the charge and facts of the case and also following the dictum laid down in Sunil's case (supra), I feel that an offence under Sections 7 & 8 of the Kerala Gaming Act is not made out. There is no case that Muhammedali, Pallikkunnu conducted a common gaming house. Therefore, the proceeding will be unnecessary and the allegations made against the petitioners will be unsustainable in law. Thus, invoking the powers vested upon this court under 482 of the Cr.P.C., the whole proceedings in S.T.No.188/2013 on the file of the Judicial First Class Magistrate Court, Perinthalmanna originated from crime No.404/2012 of Wandoor Police Station is hereby quashed. Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/