ROBERT ELANGO J Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) BY these writ petitions, the prosecution pending in different Courts at Metropolitan Magistrate in Greater Mumbai are being assailed and the action of Police Officers of various police stations have been challenged in context with the prosecutions initiated against the petitioners, in view of provisions of the Bombay Prevention of Gambling Act, 1887 (hereinafter referred to as Bombay Gambling Act for convenience ). The main point of debate in all these writ petitions is, whether gaming on video machines is gambling in view of provisions of Bombay gambling Act. Incidently the point in debate is whether those video machines are "instruments of gaming" within the meaning of the provisions of Bombay Gambling Act.

(2.) SOME of the petitioners, had opened video game parlours at different places within the areas of Police Stations of Chembur, Dharavi, Deonar, khar, Bandra, Neharu Nagar, Shivaji Nagar, Nirmal Nagar, Kurla, Vile parle, etc. The police officers of these police stations effected raids at various beats of some video parlours and filed number of prosecutions, some against petitioner K. L. Mansukhani and some against his employees. Those cases are pending in various Courts of Metropolitan Magistrates in Greater Mumbai. Those prosecutions are based on the allegations that when the officers of concerned police stations made entry with panch witnesses for effecting raids, when punters were sent for the purposes of playing on those video games by purchasing tokens from persons sitting on counters, the said officers found the owners of said video game parlours, were gambling by means of those video machines in those video parlours and that amounted to gaming in common gaming house. Shri. S. R. Chitnis, Counsel appearing for the petitioners and Shri. Prakash naik, Counsel appointed for arguing for one petitioner, whose whereabouts are not traced, submitted that the prosecution pending in the said courts of Metropolitan Magistrate suffer on account of legal infirmities, because in all those prosecutions, the first information reports even prima facie do not disclose that whatever was seen by those police officers and panch witnesses was gambling in view of provisions of Bombay Gambling Act. Shri. Chitnis and Shri. Prakash Naik submitted that no description of such gaming has been given in those F. I. Rs. and in the absence of that, even prima facie, no offence, indicated by provisions of Bombay gambling Act has been disclosed. Both of them submitted that at the most that can be said to be the game of amusement and all these petitioners were having necessary licence for that. They further submitted that if at all there was any breach of conditions of the concerned rules, the petitioners should have been prosecuted for such infringement and not in view of Bombay Gambling Act. They further, submitted that some of the video games are games of skills and that cannot be described as "games of mere chances". Finally, they submitted that when no offence was disclosed, it was totally an error of fact and law on the part of concerned metropolitan Magistrates to issue summonses to the petitioners and other accused to remain present before the concerned Courts for facing trial. They prayed that those prosecutions be quashed by exercising powers granted to this Court in view of Constitution of India, as well as in view of provisions of Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Code for convenience ).

(3.) BOMBAY Gambling Act defines "gaming", "gaming" includes wagering or betting except wagering or betting upon a horse-race, when such wagering or betting takes place -