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TMI Blog2012 (6) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... falsely implicating the Petitioners in criminal case. They are also seeking further writ, order and direction to award compensation of Rs 1,00,000/-each to the Petitioners to be paid by Respondent No. 1 after recovering the said amount from salaries of Respondent Nos. 5 to 8. They are also seeking direction, directing Respondent No. 2 to take action against Respondent Nos. 5 to 8 for victimizing innocent citizens by holding a departmental inquiry against them. 2. Brief facts giving rise to the present Petition are stated hereinbelow: 3. There is a Gymkhana situated at Andheri, Mumbai and it is known as Andheri Gymkhana which is an Association registered under the Bombay Public Trust Act and also under the Societies Registration Act. It is in existence since more than 25 years and the Petitioners are members of the said Association. The Petitioners are all senior citizens. Petitioner No. 1 is 78 years of age, Petitioner No. 2 is 73 years of age, Petitioner No. 3 is 75 years of age, Petitioner No. 4 is 63 years of age, Petitioner No. 5 is 65 years of age, Petitioner No. 6 & 7 are 72 years of age etc. The average age of all these Petitioners is about 60 to 65 years. Two to three Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners were illegally detained in Police Station from 9.30 p.m to 6.00 a.m. and it is also alleged that, during this time, they were not permitted to take medicines and they were constantly threatened with arrest. They were not offered food and not even allowed to go to the toilet though the Respondents were informed that some of the Petitioners were diabetics and needed regular medication and had to answer nature's call frequently. It is alleged that one of the Petitioners viz S.P. Upadhyay aged 62 years had his leg in a plaster and needed crutches to walk was not even allowed to sit during the entire period from 9.30 p.m. to 6.00 a.m. It is alleged that one Shri Prithvi B. Mhaske who was also playing cards as could be seen from the television footage was not arrested and his name did not appear in the copy of the FIR since he was related to the leader of NCP. Similarly, one Shri Pravin S. Narvekar and Shri Mohinder Singh who were also playing cards in the Card Room were let off at the instance of Shri Sanjay S. Narvekar the brother of Shri Pravin S. Narvekar, who was attached to Andheri Police Station. It is contended that, therefore, two different yardsticks were used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that it has been specifically laid down in the Act that women cannot be arrested after sunset. He submitted that some of the Petitioners who are senior citizens and women were detained in the Police Station throughout the night till 6.00 a.m. He submitted that this is a fit case not only for quashing the complaint but also for awarding compensation to the Petitioners for illegal detention. He submitted that directions may be given to the Police either to register a criminal case against Respondent Nos. 5 to 8 or to direct the Commissioner of Police to hold departmental inquiry against them for their highhanded action and for defaming the Petitioners by inviting news channels who had illegally broadcast on their TV channels that Petitioners were gamblers who were arrested by the Police. 8. The learned Counsel appearing on behalf of the Petitioners in support of his submissions relied upon the following judgments: (1) State of Andhra Pradesh vs. K. Satyanarayana AIR 1968 SC 825 (2) Robert Elangoj vs. Inspector of Police 2004 ALLMR (Cri) 1040 (3) Galib Hussain Khan vs. State of Maharashtra 2004 CrLJ 4896 (4) State of West Bengal vs. Swapan Kumar Guha 1982 AIR (SC) 949 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised by this Court while exercising its jurisdiction under Article 226 of the Constitution of India and under section 482 of the Criminal Procedure Code and it has further held that, normally, this Court should be very slow in interfering with the investigation after FIR is registered disclosing the cognizable offence and only if the case falls under the categories mentioned in the said judgments in order to avoid abuse of process of law this Court under Article 226 of the Constitution of India and under section 482 of the Criminal Procedure Code can quash the complaint. The Apex Court in R.P. Kapur vs State of Punjab AIR 1960 SC 866 has very succinctly summarized the said power and observed that the said power can be exercised in three categories of cases viz (i) Where it is manifestly appears that there is alegal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut a case against the accused. 2 Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3 Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4 Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmit, police were informed that they did not have any such permit and, therefore, women and men were informed that in view of this under the provisions of the Gambling Act, they were being prosecuted and they were searched and during their personal search certain cash amount ranging between Rs 100/-to Rs 1400/-approximately was found from each of them and an amount of Rs 16340/-was found from one Pandurang Kandgaonkar, aged 75 years. Alongwith money, counters were also found with them. Thirteen counters of various colours were seized. Police also seized from the said place 10 packets of playing cards and six receipts issued by Andheri Gymkhana on which the names of the customers and the amounts received from them were mentioned. The statement of the first informant Subhash Chandrakant Ungale was recorded on the laptop and the FIR was registered. 16. It has to be seen whether the averments which are mentioned in the complaint even if they are taken at their face value would constitute an offence under sections 4 and 5 of the Gambling Act. 17. Before taking into consideration averments in the FIR, it would be necessary to take into consideration the relevant provisions of the Gambl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th imprisonment [which may extend to two years] [and may also be punished with fine]. Provided that, (a) for a first offence such imprisonment shall not be less than [three months and fine shall not be less than five hundred rupees; (b) for a second offence such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees; and (c) for a third or subsequent offence such imprisonment shall not be less than [one year and fine shall not be less than two thousand rupees]. (2) Nothing contained in the provisions of the Probation of Offenders Act, 1958 (XX of 1958) or in sub-sections (1), (4), (5) and (6) of Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any person convicted under this section. 5. Gaming in common gaming-house [Whoever is found in any common gaming-house gaming or present for the purpose of gaming [shall on conviction punished] with imprisonment which may extend to six months [and may also be punished with fine] : Provided that.- (a) for a first offence such imprisonment not beless than one month and fine shall not be less than two hundred rupees; (b) for a second offence such imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Apex Court further observed that chance in Rummy is of the same character as the chance in a deal at a game of Bridge. In the said case, the question which fell for consideration before the Apex Court was : whether the premises of a club known as the "Crescent Recreation Club" situated in Secunderabad were being used as a common gambling house and whether the several respondents who were present at the time of the raid by the police could be said to be gambling therein. The facts were that on 4/5/1963, police raided the premises and found five persons playing a card game known as Rummy for stakes. At the time of the raid, there were some counters on the table as also money and the playing cards with the players. The treasurer of the club was also present and was holding the stake money popularly known as "kitty". The Secretary of the Club was also joined as an accused because he was in-charge of the management of the club. The kitty which the 6th Respondent held was Rs 74.62 np and further an amount of Rs 218.00 was recovered from the table of 6th Respondent and 66 counters were on the table and some more money was found with the persons who were indulging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less and continuous and for avoiding likelihood of harassment and expenditure to such accused. Therefore, the prosecution indicated by these writ petitions pending before concerned Courts of Metropolitan Magistrate are hereby quashed by exercising the powers conferred on this Court in view of provisions of Section 482 of the Code of Criminal Procedure and Article 226 of Constitution of India. The bonds furnished by these accused stand cancelled. They need not attend the said Courts in context of these cases. Subordinate Courts are to make a judicial scrutiny of the cases filed in respect of the provisions of BombayPrevention of Gambling Act, 1887 before deciding to issue summonses to such accused. Parties concerned to act on a simple copy of this order, duly authenticated by the Court stenographer/sheristedar of this Court. Petition allowed. 22. In Galib Hussain Khan vs. State of Maharashtra 2004 CrLJ 4896 the facts were that the Petitioner claimed to be a social worker and was also Special Executive Officer. He made a grievance that in Ghatkopar area, there are several clubs which are gambling dens. He named certain clubs in the Petition. According to the Petitioner, though sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point out any provision of law which permitted any authority to issue a gambling license to any club. Secondly, from the averments in the complaint, it can be seen that what was found by police was that certain tokens were placed in front of each of the members and certain money was found in their pockets. It is a common ground that while playing Rummy, use of counters is very often made and, therefore, merely because counters are kept, it cannot be presumed that persons in the club are carrying on gambling activity. In the FIR, it is nowhere stated what type of card game was being played. It is not stated that the Petitioners were playing three card game such as 'flush', 'brag' etc. which is known to be a pure game of chance. Similarly, there is no material on record to indicate that the club was keeping any money out of the winning proceeds of the card game and, as such, it would not fall under the definition of a gambling house. Viewed from any angle therefore, in our view, averments in the complaint do not disclose any offence under sections 4 and 5 of the Gambling Act and, therefore, the complaint is liable to be quashed. 24. A grievance has been made on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dates of hearing of the Petition, Respondent No. 5 had been contacting some of the members and guests of the Gymkhana viz Prakash P. Oza and Vijay Parekh and browbeating them with threats of retribution and directing them to come to the Police Station to record their statements. In our view, this act of the police is not only depricable but is also despicable. Respondent Nos. 5 to 8 have clearly violated provisions of section 46(4), section 54, section 55A read with section 60 of the Criminal Procedure Code, 1973 and, as such, the fundamental rights of the Petitioners under Article 21 of the Constitution of India are clearly violated by the police. No medical tests were performed after arrest of the Petitioners as is now required under the Criminal Procedure Code. It has to be noted that, initially, under section 160 of the Criminal Procedure Code, Police Officer had power to issue summons asking the witness to attend the Police Station. In section 160(1), there is a proviso which stated that woman shall not be required to attend at any place other than the place in which she resides. The said proviso, however, was restricted to attendance of woman as witness on the summons bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of the Police but they were also threatened because they tried to take recourse in the court of law. The Investigating Officer, therefore, should take due care and should be circumspect before conducting such raids in hurry and should take proper care to ensure that procedure which is laid down under the law is followed to the hilt. We have no manner of doubt that there are number of places in the City of Mumbai and elsewhere in the State of Maharashtra where gambling activities are carried out and it is necessary to curb these illegal practices. However, that does not mean that police should act in a hasty manner and harass the innocent citizens. 28. We must however observe that, in the present case, benefit of doubt will have to be given to Respondent Nos. 5 to 8 and we have no manner of doubt that their actions are bonafide and it does not appear from record that there was any malafide intention on their part in conducting the raid. We, therefore, find no substance in the submission of the learned Counsel for the Petitioner that this Court should direct departmental inquiry or any action should be taken against them by the State Government. 29. Writ Petition is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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