1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.8971 of 2011 & M.P(MD)NOS. 1 and 2 of 2011 1.Vasantha Kumar 2.Rahavan 3.Nepolian 4.Sundar 5.Kumaran 6.Anand 7.Vijayan 8.Arumugam 9.Jeganathan 10.Babu .. Petitioners -Vs-. The State rep.by The Sub-Inspector of Police, Thirunagar, Madurai District. .. Respondent Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records relating to the proceedings in Crime No.268 of 2011 now pending on the file of the respondent herein and to quash the same as illegal. For Petitioners:Mr.S.Subbiah For Respondent :Mr.A.P.Balasubramani Govt. Advocate (Crl.side) O R D E R The petitioner approaches this Court with a prayer to call for the records relating to the proceedings in Crime No.268 of 2011, pending on the file of the respondent herein and to quash the same as illegal. 2.The learned Counsel appearing for the petitioner submits that the FIR in Crime No.268 of 2011 is filed under Sections 8 and 9 of the Tamil Nadu Gaming Act, 1930. He further submits that the place of occurrence is belonging to the first accused and they are watching the T.V only, but there was a previous motive against those persons, who raid the place and a false case has been registered. He further submits that the ingredients of Sections 8 and 9 of the Tamil Nadu Gaming Act, 1930, have not been made out https://hcservices.ecourts.gov.in/hcservices/ 2 to substantiate the arguments. He relied upon the judgment in Siddaraj and others -Vs- State of Tamil Nadu and another reported in 1996 CRL.L.J.1024 and prayed for quash the proceedings. 3.The learned Government Advocate(Criminal Side) submits that there are ten persons who are playing cards for profit motive and hence, the ingredients of Sections 8 and 9 is made out in the present case and hence, he seeks for dismissal of the petition. 4.Considering the rival submissions made by either side in pursuant of records, as per the F.I.R, a case has been registered under Sections 8 and 9 of the Tamil Nadu Gaming Act, 1930 and the alleged occurrence is taken place on 05.07.2011 at 16.30 hours. In that it was specifically mentioned that the occurrence is taken place at Door No.12, Meenakshi Street, Balaji Nagar, Thirupparankundram, Madurai. At this juncture, it is appropriate on the part of this Court to refer to the Tamil Nadu Gaming Act, 1930, wherein Clause-III, defines as follows: "3.Definitions:- In this Act, unless there is anything repugnant in the subject or context- "Common gaming-house" means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever and includes any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened kept or used for the purpose of gaming; 'gaming' does not includes a lottery but includes wagering or betting, except wagering or betting on a horse race then such wagering or betting takes places: (i)On the date of which such race is to run; and (ii)In a place or places within the race enclosure which the authority controlling such race has with the sanction of the (State) Government set apart for the purpose." 5.But, admittedly, the place where the alleged occurrence is taken place, is not a common gaming house as defined under Section 3 of Tamil Nadu Gaming Act, 1930. At this juncture, it is also appropriate to consider Sections 8 and 9 which reads as follows: "8.Penalty for opening etc., a common gaming-house:- Whoever opens, keeps or uses or permits to be used any common gaming-house, or conducts or assists in https://hcservices.ecourts.gov.in/hcservices/ 3 conducting the business of any common gaming-house or advances or furnishes money for gaming therein, shall be liable on conviction to fine not exceeding five hundred rupees, or to imprisonment not exceeding three months, or to both. 9.Penalty for being found gaming in a common gaming- house: Whoever is found gaming or present for the purpose of gaming in a common gaming-house shall, on conviction, be liable to fine not exceeding two hundred rupees or to imprisonment not exceeding one month; and any person found in any common gaming- house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming." 6.In Siddaraj and others -Vs- State of Tamil Nadu and another reported in 1996 CRL.L.J.1024, paragraph '4' reads as follows: "4.As per Section 8 of the Tamil Nadu Gaming Act, whoever opens, keeps or uses or permits to be used any common gaming house for gaming therein is liable to be punished. And under Section 9 of the Act, whoever is found gaming or present for the purpose of gaming in a common gaming house is guilty. And any person found in any common gaming house during any gaming or playing therein shall be presumed until the contrary is proved to have been there for the purpose of gaming. The existence of a common gaming house is an essential pre-requisite for initiation of proceedings under Sections 8 and 9 of the Act. In the absence of any common gaming house no offence is made out under these two sections." 7.So, the existence of common game house is essential for pre-requisite under Sections 8 and 9 of the Act. In the absence of common Gaming House the ingredients of Sections 8 and 9 of Tamil Nadu Gaming Act, is not made out. As already stated that the place where the offence is alleged to have committed belongs to the first petitioner, it is not a common gaming house as per the Tamil Nadu Gaming Act, 1930. Since, the ingredients of Sections 8 & 9 of the Tamil Nadu Gaming Act, 1930 is not prima facie made out, I am inclined to quash the same. 8.With the above observations, this petition is allowed and the proceedings in Crime No.268 of 2011 is quashed. Consequently, connected Miscellaneous Petitions are closed. Sd/- Deputy Registrar(Writs) /True Copy/ Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Sub-Inspector of Police, Thirunagar, Madurai District. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Gsr ssk/22.09.2011 /3c -4p/- Crl.O.P.(MD)No.8971 of 2011 https://hcservices.ecourts.gov.in/hcservices/