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2022 Supreme(Kar) 421
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K. NATARAJAN, J.
Ramanji S/o Late Narasappa – Petitioner
Versus
The State of Karnataka – Respondent
Criminal Petition No. 10639 of 2022
Decided On : 07-11-2022
Advocate Appeared:
For the Petitioners: P.B. Umesh, R.B. Deshpande.
For the Respondent: B.J. Rohith.
Point of Law : Merely Police have not cited any independent witness in the charge sheet, but, that itself is not a ground to quash the criminal proceedings. [Para 9]
Headnote:
Criminal Procedure Code,1973 - Section 41 and 155(2) - Karnataka Police Act, 1963 - Section 78(3) - Gambling - Charge-sheet - Suo-motu complaint registered by Police against accused No. 1 for above said offence - Subsequently, Police filed charge-sheet against this petitioner as accused No. 2 for offence punishable under Section 78(3) of K.P. Act alleging that on credible information on Police raided spot where accused No. 1 found playing Matka assuring Rs. 70/- for one rupee, where customers ran away and accused No. 1 found on spot - Therefore, they seized the cash, articles and ball pen - Then they given notice to him to appear before Police under Section 41 of Cr.P.C - Subsequently, they registered NCR based upon the panchanama, then requisition sent to Magistrate, obtained permission under Section 155(2) of Cr.P.C. then FIR has been registered, they investigated the matter and filed the charge-sheet against this petitioner by showing accused No. 2 as absconding which is under challenge - There are no independent witnesses to show that this petitioner was running Matka - Conducting proceedings against petitioner is abuse of process of law, hence, required to be quashed - Whether who has to investigate matter and Police also filed charge-sheet within six days after registering FIR which is not correct.
Finding of Court : It is an admitted fact that information given to Magistrate seeking permission and permission also rightly accorded by learned Magistrate - Police have registered FIR on next date of obtaining permission - Subsequently, Police investigated matter and filed charge-sheet within six days - As per Section 57 of Cr.P.C. where Police not able to complete investigation within 24 hours, then accused shall be produced before Magistrate - Otherwise, they can obtain permission of Magistrate for extending custody of accused up to 60 days or 90 days as per Section 167 of Cr.P.C- definition clearly stated that owner also liable other than person who actually conducting Matka and gambling. Section 78(3) of K.P. Act is only a punishment provision - Such being, contention of learned counsel that petitioner is merely not present on spot, but it cannot be said to be not committed any offence In fact accused No. 2 is said to be owner and accused No. 1 was conducting Matka and accused No. 1 giving entire money to this petitioner - Of course, it may be based upon the voluntary statement, but, is voluntary statement admissible or not admissible are when appreciation of evidence is considered only during trial, but, it cannot be a ground for quashing very charge-sheet - Such being case, merely Police have not cited any independent witness in charge sheet, but, that itself is not a ground to quash the criminal proceedings - Court of view that petition is devoid of merits and liable to be dismissed. [Para 8 and 9]
Result : Petition is dismissed.
ORDER :
1. This petition is filed by the petitioner-accused No. 2 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No. 4389/2021 pending on the file of Prl. Civil Judge and JMFC, Pavagada in respect of Crime No. 213/2021 of Pavagada Police Station, Madhugiri Sub-Division, Tumakuru District for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 (for short ‘K.P. Act’)
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for respondent-State.
3. The case of the prosecution is that the suo-motu complaint registered by the Police against accused No. 1 for the above said offence. Subsequently, the Police filed charge-sheet against this petitioner as accused No. 2 for the offence punishable under Section 78(3) of the K.P. Act alleging that on the credible information on 27.09.2021, the Police raided the spot where accused No. 1 found playing Matka assuring Rs. 70/- for one rupee, where the customers ran away and accused No. 1 found on the spot. Therefore, they seized the cash, articles and ball pen. Then they given notice to him to appear before the Police under Section 41 of Cr.P.C. Subsequently, they registered NCR based upon the panchanama, then the requisition sent to the Magistrate, obtained permission under Section 155(2) of Cr.P.C. then the FIR has been registered, they investigated the matter and filed the charge-sheet against this petitioner by showing accused No. 2 as absconding which is under challenge.
4. Learned counsel for the petitioner has contended that the Police have not properly investigated the matter, they have not made any enquiry and even not issued any notice to him under Section 41 of Cr.P.C. but they have filed the charge-sheet only based upon the voluntary statement of accused No. 1. That apart, the Magistrate also not specified whether who has to investigate the matter and the Police also filed the charge-sheet within six days after registering the FIR which is not correct. There are no independent witnesses to show that this petitioner was running Matka. Therefore, conducting proceedings against the petitioner is abuse of process of law, hence, required to be quashed. Learned counsel also submits that as per Section 78(3) of K.P. Act, a person who actually present and playing gambling is responsible for punishment, but, not the petitioner who was not at all present on the spot as there is no link between accused Nos. 1 and 2. Hence, prayed for quashing the same.
5. Per contra, learned High Court Government Pleader objected the same and contended that as per Section 78(1)(a) of the K.P. Act, the owner is also liable for punishment and accused No. 1 was found playing gambling and accused No. 2 was running Matka, therefore, both are liable for punishment under Section 78 of the K.P. Act. There is no illegality committed by the Magistrate in granting the permission under Section 155(2) of Cr.P.C. Hence, prayed for dismissing the petition.
6. Having heard the arguments and on perusal of the records, the main three contentions raised by the learned counsel are that (1) before registering FIR, the Police have conducted panchanama which is against the provisions of Section 154 of Cr.P.C. (2) the Police have filed the charge-sheet within six days of registering the FIR which is not correct and (3) the petitioner is not present on the spot and playing gambling is punishable under Section 78(3) of the K.P. Act.
7. Considering the grounds urged by the learned counsel and on perusal of the records, especially, the FIR was registered subsequent to preparing panchanama. In this regard, on the credible information, the Police people raided the spot and seized the cash of Rs. 4,180/- along with Matka chit as well as ball pen. Accused No. 1 was found playing Matka. The Police after seizing the same, issued notice under Section 41(A) of the Cr.P.C. asking him to come to the Police Station as the offence alleged is non-cognizable
