The investigation in a non-cognizable offence at the hands of the police without permission of the competent Magistrate is impermissible.

JUDGMENT

Aman Chaudhary, J. - Prayer in this petition filed under Section 482 of the Code of Criminal Procedure is for quashing of FIR No.98, dated 25.07.2020, registered under Section 13-A of the Public Gambling Act, 1867 (hereinafter referred as 'the Act'), registered at Police Station Division No.2, Jalandhar, Annexure P-1, charge-sheet dated 06.08.2020, Annexure P-3, order dated 18.04.2022, Annexure P-5 passed by the trial Court dismissing an application filed for discharge, framing of charge dated 18.04.2022, Annexure P-6 and charge-sheet dated 18.04.2022, Annexure P-7.

2. Pithily put, the prosecution version is that during a private vehicle patrolling to check bad elements, the ASI who was present at the workshop chowk received a secret information that the petitioner, a resident of BSF Colony, Jalandhar, has been doing betting on cricket matches from the last few years and has kept heavy amount earned from the same. On that day also he was doing betting on the cricket test match between West Indies and England while sitting at his house, who can be nabbed with laptop, mobile phone and with heavy amount of Indian currency. The said ASI with police officials raided the house of the petitioner at 9.40 pm on 25.7.2020 and recovered an amount of Rs.1,23,50,000/- alleged to be gambling money from his possession alongwith laptop and mobile phone. The amount recovered was deposited with the Income Tax Department. Final report in the case was presented on 30.7.2020.

3. Learned counsel submitted that the application for discharge was dismissed by the trial Court vide order dated 18.04.2022 on the ground that at the time of framing of the charges only prima facie case is to be seen. Thereafter, the charges against the petitioner were framed vide order dated 18.4.2022, Annexure P-7, under Section 13-A of The Public Gambling Act (hereinafter referred to as 'The Act').

4. Learned counsel for the petitioner opened up his arguments by making a reference to Schedule 2 of the Cr.P.C. wherein the classification of the offences against other laws in the Cr.P.C., are mentioned, as per which the offences punishable with imprisonment for less than 3 years are non-cognizable, bailable and triable by Magistrate.

5. Learned counsel in order to further substantiate his stance of challenge drew the attention of this Court to Sub Section 2 of Section 155 Cr.P.C. which reads thus:-

'155. Information as to non- cognizable cases and investigation of such cases.

(1)When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.(2)No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial."

6. Learned counsel for the petitioner next contended that the offence punishable under Section 13-A of the Act under which the FIR was lodged and charges had been framed is non-cognizable as the prescribed imprisonment for it is upto one month or fine of Rs.50/-. Reference to the Section was made, which reads thus:-

'13. Gaming and setting birds and animals to fight in public streets.-A police officer may apprehend without warrant- any person found playing for money or other valuable thing, with cards, dice, counters or other instruments of gaming, used in playing any game not being a game of mere skill, in any public street, place or thoroughfare situated within the limits aforesaid, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the limits aforesaid, or any person there present aiding and abetting such public fighting of birds and animals. Such person when apprehended shall be brought without delay before a Magistrate,