The court affirmed that offences under Section 13 of the Public Gambling Act are cognizable, allowing police to conduct investigations without a magistrate's prior permission, contrasting them with non-cognizable offences under other sections.

JUDGMENT :

VIVEK KUMAR SINGH, J.

1. Heard Shri Diwan Saifullah Khan, learned counsel for the applicant and Shri Mohd. Afzal, learned counsel for the State.

2. Present application under Section 528 BNSS has been preferred to quash the entire proceedings of Case No.1468 of 2020 (State vs. Imran and Others), arising out of Case Crime No.1025 of 2019, under Section 13 of the Public Gambling Act, 1867 (in short 'Gambling Act'), Police Station Sikandara, District Agra, pending in the court of Special Chief Judicial Magistrate, Agra as well as chargesheet dated 21.12.2019 and Summoning order dated 24.02.2020 issued in the aforesaid proceedings.

3. The prosecution case in brief is to the effect that a First Information Report (in short 'FIR) was lodged on 08.12.2019 at 11:09 AM in respect of alleged incident dated 08.12.2019 at 9:30 AM, at Police Station Sikandara, District Agra, as Case Crime No.1025 of 2019, under Section 13 of the Gambling Act. It is alleged by the informant that the applicant and co-accused were arrested by the police while playing cards in the park and Rs.750/- were recovered from their possession. The Investigating Officer started investigation and recorded statements of informant and other witnesses and submitted chargesheet in this case on 21.12.2019, under section 13 of the Gambling Act. Thereafter, the learned Magistrate took cognizance of offence vide order dated 24.02.2020.

4. It is submitted by the learned counsel for the applicant that the chargesheet has been filed under section 13 of the Gambling Act where the maximum sentence in State of Uttar Pradesh is upto rigorous imprisonment for a term not exceeding one month and fine not exceeding two hundred fifty rupees nor less than fifty rupees, in the case of first offence and in the case of any subsequent offence to a fine not exceeding five hundred rupees nor less than hundred rupees and rigorous imprisonment for a term not exceeding six months nor less than one month. The amendment was incorporated in State of Uttar Pradesh on 07.09.1961, therefore, the counsel for the applicant opened up his argument by making a reference to Schedule 1st part II of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') wherein classification of offences against other laws in Cr.P.C. are mentioned, as per which the offences punishable with imprisonment for less than three years are non cognizable, Bailable and triable by Magistrate. The learned counsel further submitted that Section 155 (2) of Cr.P.C. mandates that 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 and as in the present case police did not take permission from the learned Magistrate to commence with the investigation, thus, the entire proceedings commence soon after registration of the FIR become void ab initio. Learned counsel for the applicant placed reliance upon two judgments of Co-ordinate Bench of this Court passed on 12.05.2025 in Application U/S 482 No.26740/2024 (Imran Khan And Another vs. State of U.P. and Another) and judgement and order dated 04.07.2025 passed in Application U/S 482 No.29797 of 2024 (Imran Vs. State of U.P. and Another), wherein it was held that offences under Section 3 /4 of the Gambling Act is a non-cognizable offence and the learned Magistrate cannot take cognizance of offence on a chargesheet rather he has to follow the procedure, laid down for complaint cases.

5. Per contra, Mr. Mohd. Afzal, learned counsel for the State has opposed the application and