An offence under the Public Gambling Act, punishable by less than three years of imprisonment, is non-cognizable. A police officer cannot investigate such an offence without prior authorization from a Magistrate under Section 155(2) of the Code of Criminal Procedure, otherwise, subsequent judicial proceedings remain invalid.

JUDGMENT :

SANJAY KUMAR PACHORI, J.

1. In the instant case short question has been arisen as to whether the offence punishable under Section 13 of the Public Gambling Act, 1867 is non cognizable offence?

2. The present application under section 482 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) has been filed with a prayer to quash the entire proceedings of Criminal Case No. 21 of 2024 arising out of Case Crime No. 153 of 2023, under Section 13 of the Public Gambling Act, 1867, Police Station Jigana, District Mirzapur as well as cognizance/ summoning order dated 03.01.2024, pending in the Court of Additional Civil Judge (Senior Division)/F.T.C., Mirzapur .

3. Brief facts of the case are that the first information report dated 25.10.2023 has been lodged by Sub Inspector of local police based on recovery and arresting of 4 accused persons including the present applicant and five other persons under Section 13 of the Public Gambling Act and recovered certain currency and playing cards. After completing investigation as State case, charge-sheet has been submitted on 13.12.2023 and cognizance/ summoning order was passed on 03.01.2024 by the concerned Magistrate.

4. Learned counsel for the applicant submitted that offence, under Section 13 of the Public Gambling Act, as amended by the U.P. Amendment Act No. 21 of 1961, constitutes a non cognizable offence and it provides punishment for first offence is punishable with a fine not exceeding two hundred and fifty rupees nor less than fifty rupees, or to rigorous imprisonment for a term not exceeding one month; and in the case of any subsequent offence punishable with a fine not exceeding five hundred rupees nor less than one hundred rupees, and rigorous imprisonment for a term not exceeding six months nor less than one month. It is further contended that as per Part II of first Schedule of the Cr.P.C., the offence under Section 13 of Gambling Act is a non-cognizable offence. Due to this reason the Investigating Officer has no power to start investigation without prior permission of concerned Magistrate.

5. It is further argued that as per allegations of the F.I.R. four persons had been arrested in chasing conditions. There is no pre-summoning evidence with regard to fact that the act of Gambling is taken place in public place or private place. It is further submitted that charge-sheet has been submitted against the other 5 persons on the basis of confessional statement of arrested co-accused persons before police which is irrelevant. It is further submitted that police report has been submitted as cognizable case after investigating a non cognizable case without any prior permission of Magistrate concerned under Section 155(2) of Cr.P.C. and cognizance order has also been passed thereupon.

6. Learned A.G.A. has vehemently opposed the prayer.

7. Heard Sri Shrey Singh and Ms. Ragini Gupta learned counsels for the applicant and Sri Kamleshwar Singh, learned A.G.A. is present and perused the material on record.

8. Before dealing with arguments of the parties, it is apposite to revisit the position of law. In this regard Section 13 of Public Gambling Act reproduced as under:

“Section 13. Gaming and setting birds and animals to fight in public str