THEERTHESH AND OTHERS Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioners who arraigned as Accused Nos. 1 to 5 in C.C. No. 4565/2017 on the file of the JMFC-IV, Mangaluru, for the offences under Section 78 & 80 of the Karnataka Police Act, 1963, have filed this petition on the ground that the offences under Sections 79 & 80 are not at all attracted. Even after perusal of the entire charge sheet papers and accepting the contents of the charge sheet as evidence, the allegation against the petitioners does not constitute offence under Sections 78 & 80 of the Karnataka Police Act. Therefore, the learned counsel contended that the said proceedings amounts to abuse of process of law and the court and hence, the same is liable to be quashed.

(2.) The brief factual matrix that emanate from the records are that, on 04.05.2017, the Police Sub- Inspector Maruthi G. Nayak attached to Central Sub- Division, Mangaluru East Police Station, after receiving the credible information that, some persons are playing game with the help of machines in Rithesh Recreation Club, Smart Tower, Ground Floor, Near Jyothi Junction, which are the pure game of chance and the same amounts to gambling. He immediately collected his staff and other persons went to that place, raided the Rithesh Recreation Club, situated at Near Jyothi Junction, Mangaluru and they found that the accused persons playing the vedio game with the help of some machines, in the said club. One person by name Santhosh Kumar has in fact explained the game being played with the help of such machines. As could be seen from the final report of the Police, it is stated by the said Santhosh Kumar that the customers will pay Rs. 100/- and play in the said machines and some times they get Rs. 50/- to Rs. 500/- and some times they may not get any amount. But, in what manner, the game is played is not stated by Santhosh Kumar, nor he has explained to the Investigating Officer whether the game is pure game of chance or any skill is required to play the game, in the entire charge sheet papers. Therefore, in the absence of proper explanation by the competent person, who is having knowledge about the functioning of the said machines, it is very difficult for any court to draw inference about the game that it is a pure game of chance and not a game of skill. Unless it is shown to the court that it is a pure game of chance, by means of materials on record, the court cannot say that it is a pure game of chance. In this context, in the similar situation, this court had an opportunity to deal with the matter in Criminal Petition No. 38/2018, wherein this court relying upon a decision reported in Eranna and Others v. State of Karnataka, (1977) 1 KarLJ 274 holding that, in the absence of any elucidation of any factual aspects in the charge sheet attracting the offences under Sections 78 & 80 of K.P. Act and as to how the 'Andar Bahar' game being played and whether that is a game of chance or skill, the proceedings cannot be continued, it has observed as under:-

(3.) If the entire charge sheet is translated into evidence at this stage, there is absolutely no explanation as to how the game alleged was being played by the accused persons and as to whether it is a pure and simple game of chance or whether any skill is required for the playing that game. Therefore, in the absence of any such materials, even the trial goes on, nothing more can be elicited, except contents of the charge sheet.