1985 (4) TMI 344 - HC - Indian Laws

Summary

Issues Involved:
1. Invocation of Section 482 of the Code of Criminal Procedure.
2. Legality of the charge under Sections 7 and 8 of the Kerala Gaming Act.
3. Definition and existence of a "common gaming house."
4. Compliance with mandatory statutory formalities under Section 5 of the Kerala Gaming Act.
5. Validity of the search and seizure conducted by the Assistant Sub Inspector of Police.

Issue-wise Detailed Analysis:

1. Invocation of Section 482 of the Code of Criminal Procedure:
The petitioners filed under Section 482 of the Code of Criminal Procedure to quash the charge in Crime No. 237 of 1984. Section 482 is intended for cases of grave and clear injustice to give effect to orders under the Code, prevent abuse of process, or secure the ends of justice. It cannot be used in trivial or doubtful cases of injustice. The inherent power of the High Court is preserved to prevent abuses and secure justice, even in the absence of specific provisions.

2. Legality of the charge under Sections 7 and 8 of the Kerala Gaming Act:
The first petitioner was charged under Section 7, and petitioners 2 to 6 under Section 8 of the Kerala Gaming Act. Section 7 penalizes opening or keeping a common gaming house, while Section 8 penalizes being found gaming in such a house. The charge did not disclose the necessary ingredients to constitute these offences. The initiation of proceedings was by an unauthorized person, based on insufficient information, and the procedure was irregular.

3. Definition and existence of a "common gaming house":
For Sections 7 and 8 to apply, the existence of a "common gaming house" is a prerequisite. Section 2(a) defines a common gaming house as a place where gaming instruments are kept or used for profit or gain. The allegations did not indicate the existence of such a house. The petitioners were found gaming in a private apartment used as a residence, which does not qualify as a common gaming house. The Act aims to prevent public nuisance caused by common gaming houses, not private gaming.

4. Compliance with mandatory statutory formalities under Section 5 of the Kerala Gaming Act:
Section 5 outlines the procedure for entering and searching a suspected common gaming house. It requires credible information, necessary enquiry, and recording of reasons for belief by a Magistrate or a Police Officer not below the rank of Sub Inspector. The Assistant Sub Inspector conducted the search without fulfilling these requirements. The provisions of Section 5 are mandatory and must be strictly observed to prevent misuse of power and harassment of innocent persons.

5. Validity of the search and seizure conducted by the Assistant Sub Inspector of Police:
The search was conducted by an Assistant Sub Inspector, who is not authorized under Section 5. The Public Prosecutor argued that a Government Order authorized Assistant Sub Inspectors with the powers of Sub Inspectors. However, the court held that rank and authorization of powers are distinct; an Assistant Sub Inspector remains below the rank of Sub Inspector despite the authorization. Therefore, the search was invalid. Additionally, the necessary information and enquiries were not conducted, and the presumption under Section 6 was not available.

Conclusion:
The court concluded that the allegations did not disclose any offences under Sections 7 and 8 of the Kerala Gaming Act. The search conducted by the Assistant Sub Inspector was unauthorized and invalid, and the necessary statutory formalities were not observed. Consequently, the cognizance taken by the Magistrate was illegal, and the trial would be an abuse of process. The petition was allowed, and the charge was quashed.