There was no provision preventing police from
arresting woman after sunset. The said restriction was
specifically imposed by virtue of Amendment Act 25 of 2005
with effect from 23-6-2006 by insertion of sub-section (4) in
Section 46. The said sub-section (4) of section 46 of the
Cr.P.C, reads as under:-
“46 [(4) Save in exceptional circumstances,
no woman shall be arrested after sunset
and before sunrise, and where such
exceptional circumstances exist, the
woman police officer shall, by making a
33/3634
(WP 1006.2012)
written report, obtain the prior permission
of the Judicial Magistrate of the first class
within whose local jurisdiction the offence
is committed or the arrest is to be made.]
In the present case, this procedure has not been followed in
respect of two women who were arrested and detained in
the police custody after 9.00 p.m. till 6.00 a.m. in the
morning. It was a duty of the police to have either obtained
prior permission of the judicial magistrate or to have
arrested the women on the next day after sunrise. We have
noted that in spite of insertion of said section, there is
blatant violation of the said provision and women are
arrested by police after sunset without following the
procedure laid down under sub-section (4) of section 46.
THE HIGH COURT OF JUDICATURE AT BOMBAY
Jaywant Balkrishna Sail vs. State of Maharashtra
CRIMINAL WRIT PETITION NO. 1006 OF 2012
CORAM: V. M. KANADE &P.D. KODE JJ.
Dated:25/06/2012
JUDGMENT: (Per V.M. Kanade, J.)
Citation: 2012 All MR (cri) 2306
1. Rule. Rule is made returnable forthwith. Respondents
waive service. By consent of parties, Writ Petition is taken up
for final hearing.
2. By this Petition which is filed under Articles 226 and 227
6/367
(WP 1006.2012)
of the Constitution of India read with Section 482 of the
Criminal Procedure Code, Petitioners are seeking appropriate
writ, order and direction for quashing the FIR which is
registered vide C.R. No.SPL LAC 28/2011 dated 10/08/2011
against the Petitioners and others at the Andheri Police
Station for the offence punishable under sections 4 and 5 of
the Bombay Prevention of Gambling Act, 1887 (Hereinafter
referred to as “Gambling Act”) and they are also seeking
appropriate writ, order and direction, directing G.B.C.B. C.I.D
to register an FIR against Respondent Nos. 5 to 8 for falsely
implicating the Petitioners in criminal case. They are also
seeking further writ, order and direction to award
compensation of Rs 1,00,000/- each to the Petitioners to be
paid by Respondent No.1 after recovering the said amount
from salaries of Respondent Nos. 5 to 8. They are also
seeking direction, directing Respondent No.2 to take action
against Respondent Nos. 5 to 8 for victimizing innocent
citizens by holding a departmental inquiry against them.
3. Brief facts giving rise to the present Petition are stated
hereinbelow:-
4. There is a Gymkhana situated at Andheri, Mumbai and it
is known as Andheri Gymkhana which is an Association
registered under the Bombay Public Trust Act and also under
the Societies Registration Act. It is in existence since more
than 25 years and the Petitioners are members of the said
7/368
(WP 1006.2012)
Association. The Petitioners are all senior citizens. Petitioner
No.1 is 78 years of age, Petitioner No.2 is 73 years of age,
Petitioner No.3 is 75 years of age, Petitioner No.4 is 63 years
of age, Petitioner No.5 is 65 years of age, Petitioner No.6 & 7
are 72 years of age etc. The average age of all these
Petitioners is about 60 to 65 years. Two to three Petitioners
are between the age group of 40 years to 50 years. There is
a Card Room in the said Gymkhana and the Rules prescribe
that the said Card Room is to be used only for playing Bridge
and Rummy. The Gymkhana files its balance sheet and
audited accounts with the Office of the Charity
Commissioner, Mumbai. Most of the Petitioners who have
already retired use the premises of the Gymkhana for the
purpose of playing Bridge and Rummy, both of which are
games of skill.
5. According to Petitioners, they visited Gymkhana on 10
th
August, 2011 for the purpose of playing Bridge and Rummy
and, at about 8.50 p.m., a Police Team from Andheri Police
Station comprising of Respondent Nos. 5, 6 and 8 and other
male policemen entered the Card Room and started
browbeating the Petitioners who were present there and
accused them of gambling and asked them to remove all the
articles from their pockets. According to Petitioners, they
were playing Rummy and Bridge sometimes with stakes in
the form of “counters” for pure amusement for last number
of years. Out of the Petitioners, most of them were senior
8/369
(WP 1006.2012)
citizens and some of them were house wives. According to
Petitioners, they were not allowed to make any phone calls
and they were not permitted to call their family members.
They were also not permitted to take their medicines for
diabetes and blood pressure etc. or even to use toilet
facilities.
6. Respondents claimed that they received information
that illegal gambling was going on in the Card Room and the
Respondents, after they raided the said Card Room, called
the Secretary of the Gymkhana and and asked him whether
they had a gambling license and the Secretary informed
them that there was no question of obtaining any gambling
license since members were playing games of skill. This
explanation was not accepted by the police and they
proceeded to seize the counters, playing cards and the cash
which was found in the pockets of the members. The
Petitioners, thereafter, were taken down-stairs where
Outdoor Broadcasting Vans of television channels, TV 9, India
TV and Zee News which were called by Respondent No.6
were present. Thereafter, Petitioners were taken in police
van and for two days the said channels kept on broadcasting
footage in which it was claimed that 25 gamblers have been
arrested and recovery of Rs 7 lacs has been made.
7. It is further alleged that the Petitioners were illegally
detained in Police Station from 9.30 p.m to 6.00 a.m. and it
9/3610
(WP 1006.2012)
is also alleged that, during this time, they were not permitted
to take medicines and they were constantly threatened with
arrest. They were not offered food and not even allowed to
go to the toilet though the Respondents were informed that
some of the Petitioners were diabetics and needed regular
medication and had to answer nature's call frequently. It is
alleged that one of the Petitioners viz S.P. Upadhyay aged 62
years had his leg in a plaster and needed crutches to walk
was not even allowed to sit during the entire period from
9.30 p.m. to 6.00 a.m. It is alleged that one Shri Prithvi B.
Mhaske who was also playing cards as could be seen from
the television footage was not arrested and his name did not
appear in the copy of the FIR since he was related to the
leader of NCP. Similarly, one Shri Pravin S. Narvekar and Shri
Mohinder Singh who were also playing cards in the Card
Room were let off at the instance of Shri Sanjay S. Narvekar
the brother of Shri Pravin S. Narvekar, who was attached to
Andheri Police Station. It is contended that, therefore, two
different yardsticks were used in dealing with the ordinary
senior citizens and women and the persons who were related
to Police Officers and other dominant leaders. According to
Petitioners, they were released on bail on the next day at
6.00 a.m. on 11/08/2011. They, thereafter, applied for copy
of the FIR under the Right to Information Act and were
supplied with copy of the FIR together with statement of the
first informant – Respondent No.8. The Petitioners,
therefore, have filed this Petition for quashing the FIR which
10/3611
(WP 1006.2012)
has been registered against them. An affidavit-in-reply has
been filed by the Police Inspector attached to Andheri Police
Station and affidavit-in-rejoinder has been filed by Petitioner
No.1 dated 10/4/2012.
8. The learned Counsel appearing on behalf of the
Petitioners submitted that the Petitioners were playing
games of skill viz. Bridge and Rummy which are expressly
excluded under section 13 from the purview of the Gambling
Act and, therefore, it is contended that the Petitioners could
not have been arrested and detained in the Police Station
throughout the night. He submitted that, on this ground
alone, the entire complaint is liable to be quashed. He
further submitted that even if the averments in the FIR are
accepted at its face value then also, no offence under
sections 4 and 5 of the Gambling Act is made out and,
therefore, on that ground also, the complaint is liable to be
quashed. He further submitted that there is no material on
record to show that Gymkhana is a “gambling house” within
the meaning of section 4 of the Gambling Act and, as such,
the said provisions of sections 4 and 5 are not applicable to
the facts of the present case. He further submitted that the
police had acted in a highhanded manner and had not
followed the guidelines laid down by the Division Bench of
this Court and also directions which have been given by the
Apex Court in several cases from time to time. He submitted
that the Apex Court on several occasions had held that
11/3612
(WP 1006.2012)
playing Bridge or Rummy cannot be termed as gambling
since both are games of skill and fall outside the purview of
the provisions of the Gambling Act. He submitted that it had
been held in number of cases that merely because counters
are found on the table where cards are played that by itself
cannot be termed as proof of any gambling activity within
the meaning of the provisions of the Gambling Act. He
submitted that it has been specifically laid down in the Act
that women cannot be arrested after sunset. He submitted
that some of the Petitioners who are senior citizens and
women were detained in the Police Station throughout the
night till 6.00 a.m. He submitted that this is a fit case not
only for quashing the complaint but also for awarding
compensation to the Petitioners for illegal detention. He
submitted that directions may be given to the Police either to
register a criminal case against Respondent Nos. 5 to 8 or to
direct the Commissioner of Police to hold departmental
inquiry against them for their highhanded action and for
defaming the Petitioners by inviting news channels who had
illegally broadcast on their TV channels that Petitioners were
gamblers who were arrested by the Police.
9. The learned Counsel appearing on behalf of the
Petitioners in support of his submissions relied upon the
following judgments:-
12/3613
(WP 1006.2012)
(1) State of Andhra Pradesh vs. K. Satyanarayana
1
(2 Robert Elangoj vs. Inspector of Police
2
(3) Galib Hussain Khan vs. State of Maharashtra
3
(4) State of West Bengal vs. Swapan Kumar Guha
4
(5) Madhavrao Jiwajirao Scindia vs Sambhajirao
Chandrojtrao Angre
5
10. On the other hand, Mrs Kantharia, the learned APP
appearing on behalf of the State vehemently opposed the
submissions made on behalf of the accused. She submitted
that while exercising jurisdiction under Article 226 of the
Constitution of India and under section 482 of the Criminal
Procedure Code, this Court should be slow in entertaining
such Petitions for the purpose of quashing the FIR. She
submitted that there is sufficient material on record to show
that gambling activity was going on and, therefore, no case
is made out for quashing the FIR at this stage. She
submitted that it is always open for the Petitioners to file
applications for discharge after the charge sheet is filed in
the present case. She denied that the Petitioners were
illegally detained throughout the night and she further
submitted that since it took a long time to fill in the forms
before releasing them on bail, the Petitioners had to wait for
some time. It is contended that Petitioners were told to
1 AIR 1968 SC 825
2 2004 ALLMR (Cri) 1040
3 2004 CrLJ 4896
4 1982 AIR (SC) 949
5 1988 MAD.LJ (1) 339
13/3614
(WP 1006.2012)
leave after formality of filling of their forms was completed.
However, it is submitted that all the Petitioners insisted that
they would remain in the Police Station to give company to
other accused whose forms were not filled up and the
formality of completing their forms was not over and it is,
therefore, submitted that the allegations that they were
detained in lockup is totally incorrect. Reliance is placed on
certain photographs to show that the Petitioners were in the
Office of the concerned Police Officer and not in the police
lockup.
11. We have heard the learned Counsel appearing on behalf
of the Petitioners and the learned APP appearing on behalf of
the State at length and we have given our anxious
consideration to the submissions made by both the Counsel.
12. It is not in dispute that Petitioners are retired senior
citizens and most of them have worked in multinational
companies. Some of them are businessmen and consultants.
Few of the Petitioners are house wives and many of them
have worked in responsible positions before their retirement
and, in the evening of their life, they spend their time in the
evening some time at Andheri Gymkhana playing games of
skill ie Rummy and Bridge.
13. The Apex Court has, from time to time, laid down the
guidelines regarding the scope and power which can be
14/3615
(WP 1006.2012)
exercised by this Court while exercising its jurisdiction under
Article 226 of the Constitution of India and under section 482
of the Criminal Procedure Code and it has further held that,
normally, this Court should be very slow in interfering with
the investigation after FIR is registered disclosing the
cognizable offence and only if the case falls under the
categories mentioned in the said judgments in order to avoid
abuse of process of law this Court under Article 226 of the
Constitution of India and under section 482 of the Criminal
Procedure Code can quash the complaint. The Apex Court in
R.P. Kapur vs State of Punjab
1
has very succinctly
summarized the said power and observed that the said
power can be exercised in three categories of cases viz -
(i) Where it is manifestly appears that there is a
legal bar against the institution or continuance of
the criminal proceeding in respect of the offence
alleged. Absence of the requisite sanction may,
for instance, furnish cases under this category.
(ii) Where the allegations in the First Information
Report or the complaint, even if they are taken at
their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases
no question of appreciating evidence arises; it is a
matter merely of looking at the complaint or the
First Information Report to decide whether the
offence alleged is disclosed or not.
(iii) Where the allegations made against the
accused person do constitute an offence alleged
but there is either no legal evidence adduced in
1 AIR 1960 SC 866
15/3616
(WP 1006.2012)
support of the case or the evidence adduced
clearly or manifestly fails to prove the charge. In
dealing with this class of cases it is important to
bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is manifestly and clearly
inconsistent with the accusation made and cases
where there is legal evidence which on its
appreciation may or may not support the
accusation in question. In exercising its
jurisdiction under S. 561-A the High Court would
not embark upon an eqnuiry as to whether the
evidence in question is reliable or not. That is the
function of the trial magistrate, and ordinarily it
would not be open to any party to invoke the High
Court's inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the
accusation made against the accused would not
be sustained.”
The Apex Court, thereafter, in State of Haryana vs.
Bhajan Lal
1
has expanded the said power and has
summarized it in para 108 which reads as under:-
“108. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extra-ordinary
power under Article 226 or the inherent powers
under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the process
of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down
1 AIR 1992 SC 604
16/3617
(WP 1006.2012)
any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
1. Where the allegations made in the First
Information Report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
2. Where the allegations in the First
Information Report and other materials, if
any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code.
3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under section 155(2) of the
Code.
5. Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
17/3618
(WP 1006.2012)
there is sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due
to private and personal grudge.”
14. Keeping in view the aforesaid guidelines laid down by
the Apex Court, it will now have to be seen whether the case
of the Petitioners falls under any of the aforesaid categories
mentioned hereinabove.
15. It has been urged by the learned Counsel appearing on
behalf of the Petitioners that, in the present case, even if the
averments made in the complaint are accepted at its face
value, no case is made out. Therefore, it will be necessary to
see what are the averments made in the FIR.
16. Perusal of the FIR discloses that the complaint was
registered on 10/8/2011 vide FIR No. 28 of 2011 for the
18/3619
(WP 1006.2012)
offence punishable under sections 4 and 5 of the Gambling
Act and it is alleged that the offence was committed between
9.00 p.m and 9.20 p.m. In the complaint, it is alleged that at
about 9.00 p.m, on 10/8/2011, Assistant Police Commissioner
Shri Prakash Wadkar, Andheri Zone, Andheri (East) received
a reliable information that few women and men were
carrying on gambling activity on the second floor of Andheri
Gymkhana and, therefore, in order to ascertain the
correctness of the information, the first informant Shri
Subhash Chandrakant Ungale, Police Constable, Police
Inspector Shri Shekhar Bhalerao and Police Sub-Inspector
Ravindra Kadam formed a raiding party and this information
was given to the Senior Inspector Shri Deshmukh and under
his guidance the said raiding party alongwith two panchas
proceeded at the said place along with laptop and printer
and they found that few women and men were playing cards.
When inquiry was made as to who is the Manager and who is
conducting the gambling activity, one person got up and said
that he is a General Secretary and informed his name as
Jaywant Balkrishna Sahil, aged 77 years. Thereafter, police
made inquiries with the counter-boy Sanjay Kashiram
Ghadigaonkar as to whether they had any permit for carrying
on the gaming club and when they were asked to produce
the permit, police were informed that they did not have any
such permit and, therefore, women and men were informed
that in view of this under the provisions of the Gambling Act,
they were being prosecuted and they were searched and
19/3620
(WP 1006.2012)
during their personal search certain cash amount ranging
between Rs 100/- to Rs 1400/- approximately was found from
each of them and an amount of Rs 16340/- was found from
one Pandurang Kandgaonkar, aged 75 years. Alongwith
money, counters were also found with them. Thirteen
counters of various colours were seized. Police also seized
from the said place 10 packets of playing cards and six
receipts issued by Andheri Gymkhana on which the names of
the the customers and the amounts received from them were
mentioned. The statement of the first informant Subhash
Chandrakant Ungale was recorded on the laptop and the FIR
was registered.
17. It has to be seen whether the averments which are
mentioned in the complaint even if they are taken at their
face value would constitute an offence under sections 4 and
5 of the Gambling Act.
18. Before taking into consideration averments in the FIR, it
would be necessary to take into consideration the relevant
provisions of the Gambling Act. The word “Gaming” has
been defined under section 3 of the Gambling Act. Similarly,
the said section defines “Instruments of gaming” and
“Common gaming-house” The said definition reveals that
wagering or betting upon a horse-race or dog race is
excluded from the definition. Similarly, under the definition
of “Instruments of gaming”, any article used as a subject or
20/3621
(WP 1006.2012)
means of gaming is included in the said definition. The word
“Common gaming-house” is defined as any house, room or
place in which such gaming takes place or in which
instruments of gaming are kept or used for such gaming.
19. Perusal of definition of the word “Gaming” reveals that
when two or more persons play together a game of chance
for a stake or wager which is to become the property of the
winner, would fall within that definition. A distinction has to
be drawn between the money which is used for gaming and
the money which is found on the persons in the premises. In
Emperor vs. Pyarelal Gokalprasad
1
it has been held that
combined reading of sections 3 and 8 of the Act does not
suggest that all moneys are instruments of gaming. Similarly
from definition of “Common gaming-house”, it reveals that
in order to constitute a house a common gaming house,
there must be materials to indicate that the owner or
occupier takes a fixed commission which is irrespective of
result of gaming. Taking into consideration the aforesaid
definitions, it will have to be seen whether the offence under
sections 4 and 5 viz gaming in common gaming house is
made out from the averments which are made in the FIR.
Sections 4 and 5 of the Gambling Act read as under:-
“4. Keeping common gaming house.-[(1)]
Whoever,-
1 ILR 56 Bom 192
21/3622
(WP 1006.2012)
(a) [opens, keeps as uses any house, room or place]
for the purpose, of a common gaming house,
(b) being the owner or occupier of any such house,
room or place knowingly or wilfully permits the
same to be opened, occupied, kept or used by any
other person for the purpose aforesaid,
(c ) has the care or management of, or in any manner
assists in conducting the business of, or any such
house, room, or place opened, occupied, kept
or used for the purpose aforesaid,
(d) advances or furnishes money for the purposes of
gaming with persons frequenting any such house,
room or place,
[shall, on conviction, be punished] with imprisonment
[which may extend to two years] [and may also be
punished with fine].
Provided that ,-
(a) for a first offence such imprisonment shall
not be less than [three months and fine shall
not be less than five hundred rupees;]
(b) for a second offence such imprisonment shall
not be less than six months and fine shall not
be less than one thousand rupees ; and
(c) for a third or subsequent offence such imprisonment
shall not be less than [one year and fine shall not be
less than two thousand rupees].
22/3623
(WP 1006.2012)
(2) Nothing contained in the provisions of the Probation
of Offenders Act, 1958 (XX of 1958) or in
sub-sections (1), (4), (5) and (6) of Section 360 of
the Code of Criminal Procedure, 1973 (2 of 1974)
shall apply to any person convicted under this
section.”]”
5. Gaming in common gaming-house [Whoever is
found in any common gaming-house gaming or
present for the purpose of gaming [shall on conviction
punished] with imprisonment which may extend to six
months [and may also be punished with fine] :
Provided that.-
(a) for a first offence such imprisonment not be
less than one month and fine shall not be less
than two hundred rupees;
(b) for a second offence such imprisonment shall
not be less than three months and fine shall
not be less than two hundred rupees; and
(c ) for a third or subsequent offence such
imprisonment shall not be less than six
months and fine shall not be less than two
hundred rupees.]”
Any person found in any common gaming house
during any gaming therein shall be presumed, until
the contrary [is proved], to have been there for the
purpose of gaming.”
23/3624
(WP 1006.2012)
20. As far as provisions of section 5 are concerned, the only
averment which is made in the FIR is that the raiding party
went to that place on the basis of reliable information which
was received by the superior officers and when they went to
that place they found that certain persons were playing cards
and counters were kept on the table and the Investigating
Officer questioned the person who was in-charge of the
establishment viz Secretary of the Club as to whether he had
any gambling license and when he gave reply in the
negative, all the persons were arrested and the counters
were confiscated and the monies which were on the person
of those who were playing card were also seized. There is no
material on record to indicate that the club where the
Petitioners were playing cards in the Card Room was keeping
any fixed amount as its share. It has to be seen from the
averments made in the complaint whether the averments
even if they are accepted in totality would constitute an
offence under sections 4 and 5 of the Gambling Act.
21. The Apex Court and this Court have consistently held
that a card game of skill would not constitute an offence of
gambling and that if such card game is played in a club the
said club would not fall under the definition of “Commongaming house”. The Apex Court in State of Andhra Pradesh
vs. K. Satyanarayana
1
has, after taking into consideration,
1 AIR 1968 SC 825
24/3625
(WP 1006.2012)
the provisions of the Hyderabad Gambling Act, the provisions
of which are similar to the provisions of the Bombay
Prevention of Gambling Act, 1887, held that the game of
Rummy is not a game entirely of chance like 'three-card'
game which goes under different names such as 'flush',
'brag' etc, which is a game of pure chance. It was observed
that Rummy, on the other hand, requires certain amount of
skill because the fall of the cards has to be memorised and
building up of Rummy requires considerable skill in holding
and discarding the cards. The Apex Court further observed
that chance in Rummy is of the same character as the
chance in a deal at a game of Bridge. In the said case, the
question which fell for consideration before the Apex Court
was : whether the premises of a club known as the “Crescent
Recreation Club” situated in Secunderabad were being used
as a common gambling house and whether the several
respondents who were present at the time of the raid by the
police could be said to be gambling therein. The facts were
that on 4/5/1963, police raided the premises and found five
persons playing a card game known as Rummy for stakes.
At the time of the raid, there were some counters on the
table as also money and the playing cards with the players.
The treasurer of the club was also present and was holding
the stake money popularly known as “kitty”. The Secretary
of the Club was also joined as an accused because he was incharge of the management of the club. The kitty which the
6
th
Respondent held was Rs 74.62 np and further an amount
25/3626
(WP 1006.2012)
of Rs 218.00 was recovered from the table of 6
th
Respondent
and 66 counters were on the table and some more money
was found with the persons who were indulging in the game.
The case of the prosecution was that the Circle Inspector had
received a credible information that the premises of the club
were being used as a common gambling house and he raided
it and found evidence, because instruments of gambling
were found and the persons present were actually gambling.
The learned Magistrate convicted all the seven respondents
and sentenced them to various fines, with imprisonment in
default. The High Court quashed the conviction and set aside
the sentences. The Apex Court, after going through the
provisions of the Act and the evidence led by the prosecution
came to the conclusion that there was no evidence to show
that the club was used as common gambling house. It also
came to the conclusion that there was no material on record
to show that the owner of the club was making profit or gain
from the game of Rummy or any other games played for
stake.
22. The learned Single Judge of this Court in Robert Elangoj
vs. Inspector of Police
1
has quashed the prosecution which
was initiated against the Petitioners under the Gambling Act
for keeping the video machines in their video game parlors,
after taking into consideration the judgments of the Supreme
Court in State of Andhra Pradesh vs. K. Satyanarayana
2
, in
1 2004 ALLMR (Cri) 1040
2 AIR 1968 SC 825
26/3627
(WP 1006.2012)
Kumar A. Nadar vs. V.K. Saraf, Commissioner of Police,
Greater Bombay and Others
1
and in State of West Bengal
and Others vs. Swapan Kumar Guha and Others
2
. In para 25
and 26 of the said Judgment, the learned Single Judge has
observed as under:-
“25. A judicial scrutiny has to be made
before issuing a summons to such person
and before going further for conducting a
trial. When Court finds that no such case is
made out the Court should not take
cognizance and should not keep such case
on its pending files.”
“26. In these cases no such case has been
made out even prima facie for the purpose
of conducting a trial, except one, mentioned
above. Therefore, there is no point in
putting these persons to trial and further
harassment of facing prosecution which is
undoubtedly a matter of hardship.
Therefore, in view of the observations of the
Supreme Court made in Swapan Kumar and
Madhavrao Scindias' cases (supra), this
Court comes to the conclusion that the
prosecutions need to be quashed in the
interest of justice for keeping flow of
administration of justice flawless and
continuous and for avoiding likelihood of
harassment and expenditure to such
accused. Therefore, the prosecution
indicated by these writ petitions pending
before concerned Courts of Metropolitan
Magistrate are hereby quashed by
exercising the powers conferred on this
1 AIR 1968 SC 825
2 AIR 1982 SC 949
27/3628
(WP 1006.2012)
Court in view of provisions of Section 482 of
the Code of Criminal Procedure and Article
226 of Constitution of India. The bonds
furnished by these accused stand cancelled.
They need not attend the said Courts in
context of these cases. Subordinate Courts
are to make a judicial scrutiny of the cases
filed in respect of the provisions of Bombay
Prevention of Gambling Act, 1887 before
deciding to issue summonses to such
accused. Parties concerned to act on a
simple copy of this order, duly
authenticated by the Court
stenographer/sheristedar of this Court.
Petition allowed.”
23. In Galib Hussain Khan vs. State of Maharashtra
1
the
facts were that the Petitioner claimed to be a social worker
and was also Special Executive Officer. He made a grievance
that in Ghatkopar area, there are several clubs which are
gambling dens. He named certain clubs in the Petition.
According to the Petitioner, though several complaints were
lodged by him, police had not taken cognizance of the said
complaints and even where cognizance was taken, proper
investigation was not made. An application for intervention
was filed on behalf of Shalimar Club since several allegations
were made against that club also. An affidavit in reply was
filed by the Senior Inspector of Police Ghatkopar Police
Station. The Division Bench disposed of this Petition by
observing that remedy of Writ Petition should not be used to
settle the private scores. The Division Bench observed in
1 2004 CrLJ 4896
28/3629
(WP 1006.2012)
para 13 and 14 of its judgment as under:-
“(13) We also feel that surprise raids should
be surprise raids in real sense of the term. If
on all occasions when raids are carried out
clubs are found to be closed or no gambling
is detected, lurking doubt is created whether
raids are really surprise raids or an eyewash.
We do not mean to suggest that the police
raids in this case are raids with prior
intimation. But when such doubts are
expressed, the Commissioner of Police
should exploit the possibility of giving his job
not to the police but to some independent
agency. That will prevent such allegations
being levelled against the police.”
“(14) We must also make it clear that this
does not mean that the police should go on
indiscriminately raiding social clubs by
misinterpreting our order. Only genuine
complaints have to be properly investigated.
Raids have not to be carried out to complete
a quota for public consumption. A right
balance has to be struck.”
24. In our view, taking into consideration the relevant
provisions of the Gambling Act viz sections 4 and 5 and
averments made in the complaint, there is absolutely no
material on record to indicate that the Petitioners were
indulging in gambling activity or that the club was used as
common gambling house. It is an undisputed fact that there
is no provision under the Gambling Act or any other Act for
issuing a gambling license. What is mentioned in the FIR is
29/3630
(WP 1006.2012)
that the raiding party asked the Secretary and the counterboy whether they had a gambling license and when they
replied in the negative, the Petitioners were promptly
arrested. The raiding party therefore has proceeded on an
incorrect presumption that gambling license can be issued
and only if such a license is there, card game can be played
in the Card Room. The learned APP appearing on behalf of
the State was unable to point out any provision of law which
permitted any authority to issue a gambling license to any
club. Secondly, from the averments in the complaint, it can
be seen that what was found by police was that certain
tokens were placed in front of each of the members and
certain money was found in their pockets. It is a common
ground that while playing Rummy, use of counters is very
often made and, therefore, merely because counters are
kept, it cannot be presumed that persons in the club are
carrying on gambling activity. In the FIR, it is nowhere stated
what type of card game was being played. It is not stated
that the Petitioners were playing three card game such as
'flush', 'brag' etc. which is known to be a pure game of
chance. Similarly, there is no material on record to indicate
that the club was keeping any money out of the winning
proceeds of the card game and, as such, it would not fall
under the definition of a gambling house. Viewed from any
angle therefore, in our view, averments in the complaint do
not disclose any offence under sections 4 and 5 of the
Gambling Act and, therefore, the complaint is liable to be
30/3631
(WP 1006.2012)
quashed.
25. A grievance has been made on behalf of the learned
Counsel appearing on behalf of the Petitioners that senior
citizens and women were detained in the Police Station
throughout the night and only those persons who had some
connection either with any political party or with Senior
Officers of the Police, were allowed to go and their names
had not figured in the complaint. It is also alleged that
women were detained in Police Station after sunset without
obtaining permission of the Magistrate.
26 It is an admitted position that the raid was conducted at
night after sunset and, in the FIR, it is clearly mentioned that
information which was received by Senior Inspector of Police
was that some women and men were carrying gambling
activity. It was incumbant, therefore, for the Senior Inspector
of Police to have obtained permission of the Magistrate and
to have taken women constables if they wanted to arrest
those women or they could have been asked to come on the
next day if no permission was granted, after taking down
their names and addresses. No such procedure was
followed. The affidavit-in-reply does not state that permission
of the Magistrate was obtained before arresting the women
after sunset. Section 46(4) of the Criminal Procedure Code
clearly provides that if the police intends to arrest woman
after sunset, permission of the Magistrate has to be
31/3632
(WP 1006.2012)
obtained which has not been done in this case. There is,
therefore, a serious lapse on the part of the Investigating
Officer in detaining senior women in the Police Station after
sunset. It is an admitted position that Petitioners were
released on bail at about 6.00 a.m. in the morning. In our
view, it is evident that the police have acted in a very
highhanded manner and have not followed proper procedure
before conducting the raid. They have not obtained
permission of the Magistrate to to detain women after sunset
in the Police Station. They have not permitted Petitioners to
call their relatives and family members and it is not
explained as to how reporters of TV Channels were present
when Petitioners were brought in van in Police Station.
27 The Petitioners have also filed an affidavit-in-rejoinder.
It is contended that from August, 2011 till the present
Petition was filed in March, 2012, police did not carry out any
investigation on the FIR lodged by them. However, after the
Petition was filed, Petitioner No.3 was informed that since
last two dates of hearing of the Petition, Respondent No.5
had been contacting some of the members and guests of the
Gymkhana viz Prakash P. Oza and Vijay Parekh and
browbeating them with threats of retribution and directing
them to come to the Police Station to record their
statements.
In our view, this act of the police is not only depricable
32/3633
(WP 1006.2012)
but is also despicable. Respondent Nos. 5 to 8 have clearly
violated provisions of section 46(4), section 54, section 55A
read with section 60 of the Criminal Procedure Code, 1973
and, as such, the fundamental rights of the Petitioners under
Article 21 of the Constitution of India are clearly violated by
the police. No medical tests were performed after arrest of
the Petitioners as is now required under the Criminal
Procedure Code. It has to be noted that, initially, under
section 160 of the Criminal Procedure Code, Police Officer
had power to issue summons asking the witness to attend
the Police Station. In section 160(1), there is a proviso which
stated that woman shall not be required to attend at any
place other than the place in which she resides. The said
proviso, however, was restricted to attendance of woman as
witness on the summons being issued under section 160(1).
However, there was no provision preventing police from
arresting woman after sunset. The said restriction was
specifically imposed by virtue of Amendment Act 25 of 2005
with effect from 23-6-2006 by insertion of sub-section (4) in
Section 46. The said sub-section (4) of section 46 of the
Cr.P.C, reads as under:-
“46 [(4) Save in exceptional circumstances,
no woman shall be arrested after sunset
and before sunrise, and where such
exceptional circumstances exist, the
woman police officer shall, by making a
33/3634
(WP 1006.2012)
written report, obtain the prior permission
of the Judicial Magistrate of the first class
within whose local jurisdiction the offence
is committed or the arrest is to be made.]
In the present case, this procedure has not been followed in
respect of two women who were arrested and detained in
the police custody after 9.00 p.m. till 6.00 a.m. in the
morning. It was a duty of the police to have either obtained
prior permission of the judicial magistrate or to have
arrested the women on the next day after sunrise. We have
noted that in spite of insertion of said section, there is
blatant violation of the said provision and women are
arrested by police after sunset without following the
procedure laid down under sub-section (4) of section 46.
28. There is no manner of doubt that police have an
authority under law to raid the premises where the
information is received that gambling activities are going on
but, before carrying out the raid, some initial inquiry needs to
be made in order to ensure that innocent persons who play
card games such a Rummy and Bridge which are played in
renowned clubs in the City viz. CCI, Bombay Gymkhana, are
not harassed and made to undergo procedure of facing
criminal prosecution when there is no adequate material with
the police to arrive at that conclusion. It is not necessary for
this Court to lay down guidelines as to how and in what
34/3635
(WP 1006.2012)
manner investigation is to be done or raid has to be
conducted. But it needs to be stated that merely because
some information is received from some quarters, the said
information should not be blindly followed as it could result in
causing grave injustice to innocent persons. The Petitioners
in the present case are mostly senior citizens and were
spending the time of evening of their life and for no fault of
their own, they were made to undergo not only harassment
at the hands of the Police but they were also threatened
because they tried to take recourse in the court of law. The
Investigating Officer, therefore, should take due care and
should be circumspect before conducting such raids in hurry
and should take proper care to ensure that procedure which
is laid down under the law is followed to the hilt. We have no
manner of doubt that there are number of places in the City
of Mumbai and elsewhere in the State of Maharashtra where
gambling activities are carried out and it is necessary to curb
these illegal practices. However, that does not mean that
police should act in a hasty manner and harass the innocent
citizens.
29. We must however observe that, in the present case,
benefit of doubt will have to be given to Respondent Nos. 5
to 8 and we have no manner of doubt that their actions are
bonafide and it does not appear from record that there was
any malafide intention on their part in conducting the raid.
We, therefore, find no substance in the submission of the
35/3636
(WP 1006.2012)
learned Counsel for the Petitioner that this Court should
direct departmental inquiry or any action should be taken
against them by the State Government.
30. Writ Petition is allowed in terms of prayer clause (a).
State Government is directed to pay compensation of
Rs 1,000/- to each of the petitioners and, in addition, to pay
compensation of Rs 25,000/- each to two women viz
Petitioner Nos. 8 and 9. Rule is made absolute accordingly.
31. We hope and trust that, in future, police takes extra
care and caution before taking any steps for raiding any
gambling dens or other places under other Acts. Police
should not forget that the motto of Maharashtra Police is
^ln~j{k.kk; [kyfuxzg.kk;*- It means that Maharashtra Police is
committed to PROTECTING THE RIGHOUTOUS AND
CONTROLING & ANNIHILATING THE EVIL.
(P.D. KODE, J.) (V.M. KANADE, J.)
B.D.Pandit.
36/36
Print Page
arresting woman after sunset. The said restriction was
specifically imposed by virtue of Amendment Act 25 of 2005
with effect from 23-6-2006 by insertion of sub-section (4) in
Section 46. The said sub-section (4) of section 46 of the
Cr.P.C, reads as under:-
“46 [(4) Save in exceptional circumstances,
no woman shall be arrested after sunset
and before sunrise, and where such
exceptional circumstances exist, the
woman police officer shall, by making a
33/3634
(WP 1006.2012)
written report, obtain the prior permission
of the Judicial Magistrate of the first class
within whose local jurisdiction the offence
is committed or the arrest is to be made.]
In the present case, this procedure has not been followed in
respect of two women who were arrested and detained in
the police custody after 9.00 p.m. till 6.00 a.m. in the
morning. It was a duty of the police to have either obtained
prior permission of the judicial magistrate or to have
arrested the women on the next day after sunrise. We have
noted that in spite of insertion of said section, there is
blatant violation of the said provision and women are
arrested by police after sunset without following the
procedure laid down under sub-section (4) of section 46.
THE HIGH COURT OF JUDICATURE AT BOMBAY
Jaywant Balkrishna Sail vs. State of Maharashtra
CRIMINAL WRIT PETITION NO. 1006 OF 2012
CORAM: V. M. KANADE &P.D. KODE JJ.
Dated:25/06/2012
JUDGMENT: (Per V.M. Kanade, J.)
Citation: 2012 All MR (cri) 2306
1. Rule. Rule is made returnable forthwith. Respondents
waive service. By consent of parties, Writ Petition is taken up
for final hearing.
2. By this Petition which is filed under Articles 226 and 227
6/367
(WP 1006.2012)
of the Constitution of India read with Section 482 of the
Criminal Procedure Code, Petitioners are seeking appropriate
writ, order and direction for quashing the FIR which is
registered vide C.R. No.SPL LAC 28/2011 dated 10/08/2011
against the Petitioners and others at the Andheri Police
Station for the offence punishable under sections 4 and 5 of
the Bombay Prevention of Gambling Act, 1887 (Hereinafter
referred to as “Gambling Act”) and they are also seeking
appropriate writ, order and direction, directing G.B.C.B. C.I.D
to register an FIR against Respondent Nos. 5 to 8 for falsely
implicating the Petitioners in criminal case. They are also
seeking further writ, order and direction to award
compensation of Rs 1,00,000/- each to the Petitioners to be
paid by Respondent No.1 after recovering the said amount
from salaries of Respondent Nos. 5 to 8. They are also
seeking direction, directing Respondent No.2 to take action
against Respondent Nos. 5 to 8 for victimizing innocent
citizens by holding a departmental inquiry against them.
3. Brief facts giving rise to the present Petition are stated
hereinbelow:-
4. There is a Gymkhana situated at Andheri, Mumbai and it
is known as Andheri Gymkhana which is an Association
registered under the Bombay Public Trust Act and also under
the Societies Registration Act. It is in existence since more
than 25 years and the Petitioners are members of the said
7/368
(WP 1006.2012)
Association. The Petitioners are all senior citizens. Petitioner
No.1 is 78 years of age, Petitioner No.2 is 73 years of age,
Petitioner No.3 is 75 years of age, Petitioner No.4 is 63 years
of age, Petitioner No.5 is 65 years of age, Petitioner No.6 & 7
are 72 years of age etc. The average age of all these
Petitioners is about 60 to 65 years. Two to three Petitioners
are between the age group of 40 years to 50 years. There is
a Card Room in the said Gymkhana and the Rules prescribe
that the said Card Room is to be used only for playing Bridge
and Rummy. The Gymkhana files its balance sheet and
audited accounts with the Office of the Charity
Commissioner, Mumbai. Most of the Petitioners who have
already retired use the premises of the Gymkhana for the
purpose of playing Bridge and Rummy, both of which are
games of skill.
5. According to Petitioners, they visited Gymkhana on 10
th
August, 2011 for the purpose of playing Bridge and Rummy
and, at about 8.50 p.m., a Police Team from Andheri Police
Station comprising of Respondent Nos. 5, 6 and 8 and other
male policemen entered the Card Room and started
browbeating the Petitioners who were present there and
accused them of gambling and asked them to remove all the
articles from their pockets. According to Petitioners, they
were playing Rummy and Bridge sometimes with stakes in
the form of “counters” for pure amusement for last number
of years. Out of the Petitioners, most of them were senior
8/369
(WP 1006.2012)
citizens and some of them were house wives. According to
Petitioners, they were not allowed to make any phone calls
and they were not permitted to call their family members.
They were also not permitted to take their medicines for
diabetes and blood pressure etc. or even to use toilet
facilities.
6. Respondents claimed that they received information
that illegal gambling was going on in the Card Room and the
Respondents, after they raided the said Card Room, called
the Secretary of the Gymkhana and and asked him whether
they had a gambling license and the Secretary informed
them that there was no question of obtaining any gambling
license since members were playing games of skill. This
explanation was not accepted by the police and they
proceeded to seize the counters, playing cards and the cash
which was found in the pockets of the members. The
Petitioners, thereafter, were taken down-stairs where
Outdoor Broadcasting Vans of television channels, TV 9, India
TV and Zee News which were called by Respondent No.6
were present. Thereafter, Petitioners were taken in police
van and for two days the said channels kept on broadcasting
footage in which it was claimed that 25 gamblers have been
arrested and recovery of Rs 7 lacs has been made.
7. It is further alleged that the Petitioners were illegally
detained in Police Station from 9.30 p.m to 6.00 a.m. and it
9/3610
(WP 1006.2012)
is also alleged that, during this time, they were not permitted
to take medicines and they were constantly threatened with
arrest. They were not offered food and not even allowed to
go to the toilet though the Respondents were informed that
some of the Petitioners were diabetics and needed regular
medication and had to answer nature's call frequently. It is
alleged that one of the Petitioners viz S.P. Upadhyay aged 62
years had his leg in a plaster and needed crutches to walk
was not even allowed to sit during the entire period from
9.30 p.m. to 6.00 a.m. It is alleged that one Shri Prithvi B.
Mhaske who was also playing cards as could be seen from
the television footage was not arrested and his name did not
appear in the copy of the FIR since he was related to the
leader of NCP. Similarly, one Shri Pravin S. Narvekar and Shri
Mohinder Singh who were also playing cards in the Card
Room were let off at the instance of Shri Sanjay S. Narvekar
the brother of Shri Pravin S. Narvekar, who was attached to
Andheri Police Station. It is contended that, therefore, two
different yardsticks were used in dealing with the ordinary
senior citizens and women and the persons who were related
to Police Officers and other dominant leaders. According to
Petitioners, they were released on bail on the next day at
6.00 a.m. on 11/08/2011. They, thereafter, applied for copy
of the FIR under the Right to Information Act and were
supplied with copy of the FIR together with statement of the
first informant – Respondent No.8. The Petitioners,
therefore, have filed this Petition for quashing the FIR which
10/3611
(WP 1006.2012)
has been registered against them. An affidavit-in-reply has
been filed by the Police Inspector attached to Andheri Police
Station and affidavit-in-rejoinder has been filed by Petitioner
No.1 dated 10/4/2012.
8. The learned Counsel appearing on behalf of the
Petitioners submitted that the Petitioners were playing
games of skill viz. Bridge and Rummy which are expressly
excluded under section 13 from the purview of the Gambling
Act and, therefore, it is contended that the Petitioners could
not have been arrested and detained in the Police Station
throughout the night. He submitted that, on this ground
alone, the entire complaint is liable to be quashed. He
further submitted that even if the averments in the FIR are
accepted at its face value then also, no offence under
sections 4 and 5 of the Gambling Act is made out and,
therefore, on that ground also, the complaint is liable to be
quashed. He further submitted that there is no material on
record to show that Gymkhana is a “gambling house” within
the meaning of section 4 of the Gambling Act and, as such,
the said provisions of sections 4 and 5 are not applicable to
the facts of the present case. He further submitted that the
police had acted in a highhanded manner and had not
followed the guidelines laid down by the Division Bench of
this Court and also directions which have been given by the
Apex Court in several cases from time to time. He submitted
that the Apex Court on several occasions had held that
11/3612
(WP 1006.2012)
playing Bridge or Rummy cannot be termed as gambling
since both are games of skill and fall outside the purview of
the provisions of the Gambling Act. He submitted that it had
been held in number of cases that merely because counters
are found on the table where cards are played that by itself
cannot be termed as proof of any gambling activity within
the meaning of the provisions of the Gambling Act. He
submitted that it has been specifically laid down in the Act
that women cannot be arrested after sunset. He submitted
that some of the Petitioners who are senior citizens and
women were detained in the Police Station throughout the
night till 6.00 a.m. He submitted that this is a fit case not
only for quashing the complaint but also for awarding
compensation to the Petitioners for illegal detention. He
submitted that directions may be given to the Police either to
register a criminal case against Respondent Nos. 5 to 8 or to
direct the Commissioner of Police to hold departmental
inquiry against them for their highhanded action and for
defaming the Petitioners by inviting news channels who had
illegally broadcast on their TV channels that Petitioners were
gamblers who were arrested by the Police.
9. The learned Counsel appearing on behalf of the
Petitioners in support of his submissions relied upon the
following judgments:-
12/3613
(WP 1006.2012)
(1) State of Andhra Pradesh vs. K. Satyanarayana
1
(2 Robert Elangoj vs. Inspector of Police
2
(3) Galib Hussain Khan vs. State of Maharashtra
3
(4) State of West Bengal vs. Swapan Kumar Guha
4
(5) Madhavrao Jiwajirao Scindia vs Sambhajirao
Chandrojtrao Angre
5
10. On the other hand, Mrs Kantharia, the learned APP
appearing on behalf of the State vehemently opposed the
submissions made on behalf of the accused. She submitted
that while exercising jurisdiction under Article 226 of the
Constitution of India and under section 482 of the Criminal
Procedure Code, this Court should be slow in entertaining
such Petitions for the purpose of quashing the FIR. She
submitted that there is sufficient material on record to show
that gambling activity was going on and, therefore, no case
is made out for quashing the FIR at this stage. She
submitted that it is always open for the Petitioners to file
applications for discharge after the charge sheet is filed in
the present case. She denied that the Petitioners were
illegally detained throughout the night and she further
submitted that since it took a long time to fill in the forms
before releasing them on bail, the Petitioners had to wait for
some time. It is contended that Petitioners were told to
1 AIR 1968 SC 825
2 2004 ALLMR (Cri) 1040
3 2004 CrLJ 4896
4 1982 AIR (SC) 949
5 1988 MAD.LJ (1) 339
13/3614
(WP 1006.2012)
leave after formality of filling of their forms was completed.
However, it is submitted that all the Petitioners insisted that
they would remain in the Police Station to give company to
other accused whose forms were not filled up and the
formality of completing their forms was not over and it is,
therefore, submitted that the allegations that they were
detained in lockup is totally incorrect. Reliance is placed on
certain photographs to show that the Petitioners were in the
Office of the concerned Police Officer and not in the police
lockup.
11. We have heard the learned Counsel appearing on behalf
of the Petitioners and the learned APP appearing on behalf of
the State at length and we have given our anxious
consideration to the submissions made by both the Counsel.
12. It is not in dispute that Petitioners are retired senior
citizens and most of them have worked in multinational
companies. Some of them are businessmen and consultants.
Few of the Petitioners are house wives and many of them
have worked in responsible positions before their retirement
and, in the evening of their life, they spend their time in the
evening some time at Andheri Gymkhana playing games of
skill ie Rummy and Bridge.
13. The Apex Court has, from time to time, laid down the
guidelines regarding the scope and power which can be
14/3615
(WP 1006.2012)
exercised by this Court while exercising its jurisdiction under
Article 226 of the Constitution of India and under section 482
of the Criminal Procedure Code and it has further held that,
normally, this Court should be very slow in interfering with
the investigation after FIR is registered disclosing the
cognizable offence and only if the case falls under the
categories mentioned in the said judgments in order to avoid
abuse of process of law this Court under Article 226 of the
Constitution of India and under section 482 of the Criminal
Procedure Code can quash the complaint. The Apex Court in
R.P. Kapur vs State of Punjab
1
has very succinctly
summarized the said power and observed that the said
power can be exercised in three categories of cases viz -
(i) Where it is manifestly appears that there is a
legal bar against the institution or continuance of
the criminal proceeding in respect of the offence
alleged. Absence of the requisite sanction may,
for instance, furnish cases under this category.
(ii) Where the allegations in the First Information
Report or the complaint, even if they are taken at
their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases
no question of appreciating evidence arises; it is a
matter merely of looking at the complaint or the
First Information Report to decide whether the
offence alleged is disclosed or not.
(iii) Where the allegations made against the
accused person do constitute an offence alleged
but there is either no legal evidence adduced in
1 AIR 1960 SC 866
15/3616
(WP 1006.2012)
support of the case or the evidence adduced
clearly or manifestly fails to prove the charge. In
dealing with this class of cases it is important to
bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is manifestly and clearly
inconsistent with the accusation made and cases
where there is legal evidence which on its
appreciation may or may not support the
accusation in question. In exercising its
jurisdiction under S. 561-A the High Court would
not embark upon an eqnuiry as to whether the
evidence in question is reliable or not. That is the
function of the trial magistrate, and ordinarily it
would not be open to any party to invoke the High
Court's inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the
accusation made against the accused would not
be sustained.”
The Apex Court, thereafter, in State of Haryana vs.
Bhajan Lal
1
has expanded the said power and has
summarized it in para 108 which reads as under:-
“108. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extra-ordinary
power under Article 226 or the inherent powers
under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the process
of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down
1 AIR 1992 SC 604
16/3617
(WP 1006.2012)
any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
1. Where the allegations made in the First
Information Report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
2. Where the allegations in the First
Information Report and other materials, if
any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code.
3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under section 155(2) of the
Code.
5. Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
17/3618
(WP 1006.2012)
there is sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due
to private and personal grudge.”
14. Keeping in view the aforesaid guidelines laid down by
the Apex Court, it will now have to be seen whether the case
of the Petitioners falls under any of the aforesaid categories
mentioned hereinabove.
15. It has been urged by the learned Counsel appearing on
behalf of the Petitioners that, in the present case, even if the
averments made in the complaint are accepted at its face
value, no case is made out. Therefore, it will be necessary to
see what are the averments made in the FIR.
16. Perusal of the FIR discloses that the complaint was
registered on 10/8/2011 vide FIR No. 28 of 2011 for the
18/3619
(WP 1006.2012)
offence punishable under sections 4 and 5 of the Gambling
Act and it is alleged that the offence was committed between
9.00 p.m and 9.20 p.m. In the complaint, it is alleged that at
about 9.00 p.m, on 10/8/2011, Assistant Police Commissioner
Shri Prakash Wadkar, Andheri Zone, Andheri (East) received
a reliable information that few women and men were
carrying on gambling activity on the second floor of Andheri
Gymkhana and, therefore, in order to ascertain the
correctness of the information, the first informant Shri
Subhash Chandrakant Ungale, Police Constable, Police
Inspector Shri Shekhar Bhalerao and Police Sub-Inspector
Ravindra Kadam formed a raiding party and this information
was given to the Senior Inspector Shri Deshmukh and under
his guidance the said raiding party alongwith two panchas
proceeded at the said place along with laptop and printer
and they found that few women and men were playing cards.
When inquiry was made as to who is the Manager and who is
conducting the gambling activity, one person got up and said
that he is a General Secretary and informed his name as
Jaywant Balkrishna Sahil, aged 77 years. Thereafter, police
made inquiries with the counter-boy Sanjay Kashiram
Ghadigaonkar as to whether they had any permit for carrying
on the gaming club and when they were asked to produce
the permit, police were informed that they did not have any
such permit and, therefore, women and men were informed
that in view of this under the provisions of the Gambling Act,
they were being prosecuted and they were searched and
19/3620
(WP 1006.2012)
during their personal search certain cash amount ranging
between Rs 100/- to Rs 1400/- approximately was found from
each of them and an amount of Rs 16340/- was found from
one Pandurang Kandgaonkar, aged 75 years. Alongwith
money, counters were also found with them. Thirteen
counters of various colours were seized. Police also seized
from the said place 10 packets of playing cards and six
receipts issued by Andheri Gymkhana on which the names of
the the customers and the amounts received from them were
mentioned. The statement of the first informant Subhash
Chandrakant Ungale was recorded on the laptop and the FIR
was registered.
17. It has to be seen whether the averments which are
mentioned in the complaint even if they are taken at their
face value would constitute an offence under sections 4 and
5 of the Gambling Act.
18. Before taking into consideration averments in the FIR, it
would be necessary to take into consideration the relevant
provisions of the Gambling Act. The word “Gaming” has
been defined under section 3 of the Gambling Act. Similarly,
the said section defines “Instruments of gaming” and
“Common gaming-house” The said definition reveals that
wagering or betting upon a horse-race or dog race is
excluded from the definition. Similarly, under the definition
of “Instruments of gaming”, any article used as a subject or
20/3621
(WP 1006.2012)
means of gaming is included in the said definition. The word
“Common gaming-house” is defined as any house, room or
place in which such gaming takes place or in which
instruments of gaming are kept or used for such gaming.
19. Perusal of definition of the word “Gaming” reveals that
when two or more persons play together a game of chance
for a stake or wager which is to become the property of the
winner, would fall within that definition. A distinction has to
be drawn between the money which is used for gaming and
the money which is found on the persons in the premises. In
Emperor vs. Pyarelal Gokalprasad
1
it has been held that
combined reading of sections 3 and 8 of the Act does not
suggest that all moneys are instruments of gaming. Similarly
from definition of “Common gaming-house”, it reveals that
in order to constitute a house a common gaming house,
there must be materials to indicate that the owner or
occupier takes a fixed commission which is irrespective of
result of gaming. Taking into consideration the aforesaid
definitions, it will have to be seen whether the offence under
sections 4 and 5 viz gaming in common gaming house is
made out from the averments which are made in the FIR.
Sections 4 and 5 of the Gambling Act read as under:-
“4. Keeping common gaming house.-[(1)]
Whoever,-
1 ILR 56 Bom 192
21/3622
(WP 1006.2012)
(a) [opens, keeps as uses any house, room or place]
for the purpose, of a common gaming house,
(b) being the owner or occupier of any such house,
room or place knowingly or wilfully permits the
same to be opened, occupied, kept or used by any
other person for the purpose aforesaid,
(c ) has the care or management of, or in any manner
assists in conducting the business of, or any such
house, room, or place opened, occupied, kept
or used for the purpose aforesaid,
(d) advances or furnishes money for the purposes of
gaming with persons frequenting any such house,
room or place,
[shall, on conviction, be punished] with imprisonment
[which may extend to two years] [and may also be
punished with fine].
Provided that ,-
(a) for a first offence such imprisonment shall
not be less than [three months and fine shall
not be less than five hundred rupees;]
(b) for a second offence such imprisonment shall
not be less than six months and fine shall not
be less than one thousand rupees ; and
(c) for a third or subsequent offence such imprisonment
shall not be less than [one year and fine shall not be
less than two thousand rupees].
22/3623
(WP 1006.2012)
(2) Nothing contained in the provisions of the Probation
of Offenders Act, 1958 (XX of 1958) or in
sub-sections (1), (4), (5) and (6) of Section 360 of
the Code of Criminal Procedure, 1973 (2 of 1974)
shall apply to any person convicted under this
section.”]”
5. Gaming in common gaming-house [Whoever is
found in any common gaming-house gaming or
present for the purpose of gaming [shall on conviction
punished] with imprisonment which may extend to six
months [and may also be punished with fine] :
Provided that.-
(a) for a first offence such imprisonment not be
less than one month and fine shall not be less
than two hundred rupees;
(b) for a second offence such imprisonment shall
not be less than three months and fine shall
not be less than two hundred rupees; and
(c ) for a third or subsequent offence such
imprisonment shall not be less than six
months and fine shall not be less than two
hundred rupees.]”
Any person found in any common gaming house
during any gaming therein shall be presumed, until
the contrary [is proved], to have been there for the
purpose of gaming.”
23/3624
(WP 1006.2012)
20. As far as provisions of section 5 are concerned, the only
averment which is made in the FIR is that the raiding party
went to that place on the basis of reliable information which
was received by the superior officers and when they went to
that place they found that certain persons were playing cards
and counters were kept on the table and the Investigating
Officer questioned the person who was in-charge of the
establishment viz Secretary of the Club as to whether he had
any gambling license and when he gave reply in the
negative, all the persons were arrested and the counters
were confiscated and the monies which were on the person
of those who were playing card were also seized. There is no
material on record to indicate that the club where the
Petitioners were playing cards in the Card Room was keeping
any fixed amount as its share. It has to be seen from the
averments made in the complaint whether the averments
even if they are accepted in totality would constitute an
offence under sections 4 and 5 of the Gambling Act.
21. The Apex Court and this Court have consistently held
that a card game of skill would not constitute an offence of
gambling and that if such card game is played in a club the
said club would not fall under the definition of “Commongaming house”. The Apex Court in State of Andhra Pradesh
vs. K. Satyanarayana
1
has, after taking into consideration,
1 AIR 1968 SC 825
24/3625
(WP 1006.2012)
the provisions of the Hyderabad Gambling Act, the provisions
of which are similar to the provisions of the Bombay
Prevention of Gambling Act, 1887, held that the game of
Rummy is not a game entirely of chance like 'three-card'
game which goes under different names such as 'flush',
'brag' etc, which is a game of pure chance. It was observed
that Rummy, on the other hand, requires certain amount of
skill because the fall of the cards has to be memorised and
building up of Rummy requires considerable skill in holding
and discarding the cards. The Apex Court further observed
that chance in Rummy is of the same character as the
chance in a deal at a game of Bridge. In the said case, the
question which fell for consideration before the Apex Court
was : whether the premises of a club known as the “Crescent
Recreation Club” situated in Secunderabad were being used
as a common gambling house and whether the several
respondents who were present at the time of the raid by the
police could be said to be gambling therein. The facts were
that on 4/5/1963, police raided the premises and found five
persons playing a card game known as Rummy for stakes.
At the time of the raid, there were some counters on the
table as also money and the playing cards with the players.
The treasurer of the club was also present and was holding
the stake money popularly known as “kitty”. The Secretary
of the Club was also joined as an accused because he was incharge of the management of the club. The kitty which the
6
th
Respondent held was Rs 74.62 np and further an amount
25/3626
(WP 1006.2012)
of Rs 218.00 was recovered from the table of 6
th
Respondent
and 66 counters were on the table and some more money
was found with the persons who were indulging in the game.
The case of the prosecution was that the Circle Inspector had
received a credible information that the premises of the club
were being used as a common gambling house and he raided
it and found evidence, because instruments of gambling
were found and the persons present were actually gambling.
The learned Magistrate convicted all the seven respondents
and sentenced them to various fines, with imprisonment in
default. The High Court quashed the conviction and set aside
the sentences. The Apex Court, after going through the
provisions of the Act and the evidence led by the prosecution
came to the conclusion that there was no evidence to show
that the club was used as common gambling house. It also
came to the conclusion that there was no material on record
to show that the owner of the club was making profit or gain
from the game of Rummy or any other games played for
stake.
22. The learned Single Judge of this Court in Robert Elangoj
vs. Inspector of Police
1
has quashed the prosecution which
was initiated against the Petitioners under the Gambling Act
for keeping the video machines in their video game parlors,
after taking into consideration the judgments of the Supreme
Court in State of Andhra Pradesh vs. K. Satyanarayana
2
, in
1 2004 ALLMR (Cri) 1040
2 AIR 1968 SC 825
26/3627
(WP 1006.2012)
Kumar A. Nadar vs. V.K. Saraf, Commissioner of Police,
Greater Bombay and Others
1
and in State of West Bengal
and Others vs. Swapan Kumar Guha and Others
2
. In para 25
and 26 of the said Judgment, the learned Single Judge has
observed as under:-
“25. A judicial scrutiny has to be made
before issuing a summons to such person
and before going further for conducting a
trial. When Court finds that no such case is
made out the Court should not take
cognizance and should not keep such case
on its pending files.”
“26. In these cases no such case has been
made out even prima facie for the purpose
of conducting a trial, except one, mentioned
above. Therefore, there is no point in
putting these persons to trial and further
harassment of facing prosecution which is
undoubtedly a matter of hardship.
Therefore, in view of the observations of the
Supreme Court made in Swapan Kumar and
Madhavrao Scindias' cases (supra), this
Court comes to the conclusion that the
prosecutions need to be quashed in the
interest of justice for keeping flow of
administration of justice flawless and
continuous and for avoiding likelihood of
harassment and expenditure to such
accused. Therefore, the prosecution
indicated by these writ petitions pending
before concerned Courts of Metropolitan
Magistrate are hereby quashed by
exercising the powers conferred on this
1 AIR 1968 SC 825
2 AIR 1982 SC 949
27/3628
(WP 1006.2012)
Court in view of provisions of Section 482 of
the Code of Criminal Procedure and Article
226 of Constitution of India. The bonds
furnished by these accused stand cancelled.
They need not attend the said Courts in
context of these cases. Subordinate Courts
are to make a judicial scrutiny of the cases
filed in respect of the provisions of Bombay
Prevention of Gambling Act, 1887 before
deciding to issue summonses to such
accused. Parties concerned to act on a
simple copy of this order, duly
authenticated by the Court
stenographer/sheristedar of this Court.
Petition allowed.”
23. In Galib Hussain Khan vs. State of Maharashtra
1
the
facts were that the Petitioner claimed to be a social worker
and was also Special Executive Officer. He made a grievance
that in Ghatkopar area, there are several clubs which are
gambling dens. He named certain clubs in the Petition.
According to the Petitioner, though several complaints were
lodged by him, police had not taken cognizance of the said
complaints and even where cognizance was taken, proper
investigation was not made. An application for intervention
was filed on behalf of Shalimar Club since several allegations
were made against that club also. An affidavit in reply was
filed by the Senior Inspector of Police Ghatkopar Police
Station. The Division Bench disposed of this Petition by
observing that remedy of Writ Petition should not be used to
settle the private scores. The Division Bench observed in
1 2004 CrLJ 4896
28/3629
(WP 1006.2012)
para 13 and 14 of its judgment as under:-
“(13) We also feel that surprise raids should
be surprise raids in real sense of the term. If
on all occasions when raids are carried out
clubs are found to be closed or no gambling
is detected, lurking doubt is created whether
raids are really surprise raids or an eyewash.
We do not mean to suggest that the police
raids in this case are raids with prior
intimation. But when such doubts are
expressed, the Commissioner of Police
should exploit the possibility of giving his job
not to the police but to some independent
agency. That will prevent such allegations
being levelled against the police.”
“(14) We must also make it clear that this
does not mean that the police should go on
indiscriminately raiding social clubs by
misinterpreting our order. Only genuine
complaints have to be properly investigated.
Raids have not to be carried out to complete
a quota for public consumption. A right
balance has to be struck.”
24. In our view, taking into consideration the relevant
provisions of the Gambling Act viz sections 4 and 5 and
averments made in the complaint, there is absolutely no
material on record to indicate that the Petitioners were
indulging in gambling activity or that the club was used as
common gambling house. It is an undisputed fact that there
is no provision under the Gambling Act or any other Act for
issuing a gambling license. What is mentioned in the FIR is
29/3630
(WP 1006.2012)
that the raiding party asked the Secretary and the counterboy whether they had a gambling license and when they
replied in the negative, the Petitioners were promptly
arrested. The raiding party therefore has proceeded on an
incorrect presumption that gambling license can be issued
and only if such a license is there, card game can be played
in the Card Room. The learned APP appearing on behalf of
the State was unable to point out any provision of law which
permitted any authority to issue a gambling license to any
club. Secondly, from the averments in the complaint, it can
be seen that what was found by police was that certain
tokens were placed in front of each of the members and
certain money was found in their pockets. It is a common
ground that while playing Rummy, use of counters is very
often made and, therefore, merely because counters are
kept, it cannot be presumed that persons in the club are
carrying on gambling activity. In the FIR, it is nowhere stated
what type of card game was being played. It is not stated
that the Petitioners were playing three card game such as
'flush', 'brag' etc. which is known to be a pure game of
chance. Similarly, there is no material on record to indicate
that the club was keeping any money out of the winning
proceeds of the card game and, as such, it would not fall
under the definition of a gambling house. Viewed from any
angle therefore, in our view, averments in the complaint do
not disclose any offence under sections 4 and 5 of the
Gambling Act and, therefore, the complaint is liable to be
30/3631
(WP 1006.2012)
quashed.
25. A grievance has been made on behalf of the learned
Counsel appearing on behalf of the Petitioners that senior
citizens and women were detained in the Police Station
throughout the night and only those persons who had some
connection either with any political party or with Senior
Officers of the Police, were allowed to go and their names
had not figured in the complaint. It is also alleged that
women were detained in Police Station after sunset without
obtaining permission of the Magistrate.
26 It is an admitted position that the raid was conducted at
night after sunset and, in the FIR, it is clearly mentioned that
information which was received by Senior Inspector of Police
was that some women and men were carrying gambling
activity. It was incumbant, therefore, for the Senior Inspector
of Police to have obtained permission of the Magistrate and
to have taken women constables if they wanted to arrest
those women or they could have been asked to come on the
next day if no permission was granted, after taking down
their names and addresses. No such procedure was
followed. The affidavit-in-reply does not state that permission
of the Magistrate was obtained before arresting the women
after sunset. Section 46(4) of the Criminal Procedure Code
clearly provides that if the police intends to arrest woman
after sunset, permission of the Magistrate has to be
31/3632
(WP 1006.2012)
obtained which has not been done in this case. There is,
therefore, a serious lapse on the part of the Investigating
Officer in detaining senior women in the Police Station after
sunset. It is an admitted position that Petitioners were
released on bail at about 6.00 a.m. in the morning. In our
view, it is evident that the police have acted in a very
highhanded manner and have not followed proper procedure
before conducting the raid. They have not obtained
permission of the Magistrate to to detain women after sunset
in the Police Station. They have not permitted Petitioners to
call their relatives and family members and it is not
explained as to how reporters of TV Channels were present
when Petitioners were brought in van in Police Station.
27 The Petitioners have also filed an affidavit-in-rejoinder.
It is contended that from August, 2011 till the present
Petition was filed in March, 2012, police did not carry out any
investigation on the FIR lodged by them. However, after the
Petition was filed, Petitioner No.3 was informed that since
last two dates of hearing of the Petition, Respondent No.5
had been contacting some of the members and guests of the
Gymkhana viz Prakash P. Oza and Vijay Parekh and
browbeating them with threats of retribution and directing
them to come to the Police Station to record their
statements.
In our view, this act of the police is not only depricable
32/3633
(WP 1006.2012)
but is also despicable. Respondent Nos. 5 to 8 have clearly
violated provisions of section 46(4), section 54, section 55A
read with section 60 of the Criminal Procedure Code, 1973
and, as such, the fundamental rights of the Petitioners under
Article 21 of the Constitution of India are clearly violated by
the police. No medical tests were performed after arrest of
the Petitioners as is now required under the Criminal
Procedure Code. It has to be noted that, initially, under
section 160 of the Criminal Procedure Code, Police Officer
had power to issue summons asking the witness to attend
the Police Station. In section 160(1), there is a proviso which
stated that woman shall not be required to attend at any
place other than the place in which she resides. The said
proviso, however, was restricted to attendance of woman as
witness on the summons being issued under section 160(1).
However, there was no provision preventing police from
arresting woman after sunset. The said restriction was
specifically imposed by virtue of Amendment Act 25 of 2005
with effect from 23-6-2006 by insertion of sub-section (4) in
Section 46. The said sub-section (4) of section 46 of the
Cr.P.C, reads as under:-
“46 [(4) Save in exceptional circumstances,
no woman shall be arrested after sunset
and before sunrise, and where such
exceptional circumstances exist, the
woman police officer shall, by making a
33/3634
(WP 1006.2012)
written report, obtain the prior permission
of the Judicial Magistrate of the first class
within whose local jurisdiction the offence
is committed or the arrest is to be made.]
In the present case, this procedure has not been followed in
respect of two women who were arrested and detained in
the police custody after 9.00 p.m. till 6.00 a.m. in the
morning. It was a duty of the police to have either obtained
prior permission of the judicial magistrate or to have
arrested the women on the next day after sunrise. We have
noted that in spite of insertion of said section, there is
blatant violation of the said provision and women are
arrested by police after sunset without following the
procedure laid down under sub-section (4) of section 46.
28. There is no manner of doubt that police have an
authority under law to raid the premises where the
information is received that gambling activities are going on
but, before carrying out the raid, some initial inquiry needs to
be made in order to ensure that innocent persons who play
card games such a Rummy and Bridge which are played in
renowned clubs in the City viz. CCI, Bombay Gymkhana, are
not harassed and made to undergo procedure of facing
criminal prosecution when there is no adequate material with
the police to arrive at that conclusion. It is not necessary for
this Court to lay down guidelines as to how and in what
34/3635
(WP 1006.2012)
manner investigation is to be done or raid has to be
conducted. But it needs to be stated that merely because
some information is received from some quarters, the said
information should not be blindly followed as it could result in
causing grave injustice to innocent persons. The Petitioners
in the present case are mostly senior citizens and were
spending the time of evening of their life and for no fault of
their own, they were made to undergo not only harassment
at the hands of the Police but they were also threatened
because they tried to take recourse in the court of law. The
Investigating Officer, therefore, should take due care and
should be circumspect before conducting such raids in hurry
and should take proper care to ensure that procedure which
is laid down under the law is followed to the hilt. We have no
manner of doubt that there are number of places in the City
of Mumbai and elsewhere in the State of Maharashtra where
gambling activities are carried out and it is necessary to curb
these illegal practices. However, that does not mean that
police should act in a hasty manner and harass the innocent
citizens.
29. We must however observe that, in the present case,
benefit of doubt will have to be given to Respondent Nos. 5
to 8 and we have no manner of doubt that their actions are
bonafide and it does not appear from record that there was
any malafide intention on their part in conducting the raid.
We, therefore, find no substance in the submission of the
35/3636
(WP 1006.2012)
learned Counsel for the Petitioner that this Court should
direct departmental inquiry or any action should be taken
against them by the State Government.
30. Writ Petition is allowed in terms of prayer clause (a).
State Government is directed to pay compensation of
Rs 1,000/- to each of the petitioners and, in addition, to pay
compensation of Rs 25,000/- each to two women viz
Petitioner Nos. 8 and 9. Rule is made absolute accordingly.
31. We hope and trust that, in future, police takes extra
care and caution before taking any steps for raiding any
gambling dens or other places under other Acts. Police
should not forget that the motto of Maharashtra Police is
^ln~j{k.kk; [kyfuxzg.kk;*- It means that Maharashtra Police is
committed to PROTECTING THE RIGHOUTOUS AND
CONTROLING & ANNIHILATING THE EVIL.
(P.D. KODE, J.) (V.M. KANADE, J.)
B.D.Pandit.
36/36
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