IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.MC.No. 3563 of 2006 ------------------------- ST.6984/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... PETITIONER(S): ACCUSED: ----------------------------- 1. CHULLIKULATH MUHAMMED BASHEER, S/O.ABDULLA HAJI, ELAMKOOR, MALAPPURAM DISTRICT. 2. CHULLIKULAVAN SAINUDHEEN S/O.MUHAMMED, ELAMKOOR, MALAPPURAM DISTRICT. 3. KALLINGALTHODIKA USMAN, S/O.KUNHIMOHAMMED, KARAKUNNU, MALAPPURAM DISTRICT. 4. CHULLIKULATH ABOOBACKER, S/O.ALAVI ELAMKOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE: ----------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPCTOR OF POLICE, MANJERI POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MA.5923/06 IN CRL.M.C.3563/2006. DISMISSED. 18/9/2009. SD/- A.K.BASHEER, JUDGE. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. 3563 of 2006-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2009. ORDER Petitioners who are four in number are being prosecuted along with 46 others, for offences punishable under section 294A of the Indian Penal Code and also under Sections 7 and 8 of the Kerala Gaming Act 1960. 2. The case of the prosecution appears to be that petitioners who have been arraigned as accused 15, 17, 19 and 22 were found inside a room where some kind of activity called “single digit lottery” was going on. The specific case of the prosecution is that accused Nos.1 and 2 were running the show while accused Nos.3 to 6 were aiding the said business. Accused Nos.7 to 50, going by the prosecution case, were found in the room allegedly participating in the activity. 3. Section 294A IPC reads thus: “294A. Keeping lottery office:--Whoever keeps any office or place for the purpose of drawing any lottery not being a State lottery or a lottery authorised by the State Government, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. And whoever publishes any proposal to pay any sum, or to delivery any goods, or to do or forbear doing anything for the benefit of any person, on any event or contingency relative or Crl.MC.3563/2006. 2 applicable to the drawing of any ticket, lot, number or figure in any such lottery, shall be punished with fine which may extend to one thousand rupees.” As mentioned earlier, petitioners who were admittedly found inside the room had nothing to do with the running of the show. According to the prosecution, accused Nos.1 and 2 were running the business. 4. Section 7 of the Gaming Act provides for penalty for opening, keeping or using, or permitting to be used any common gaming house or for conducting or assisting in conducting the business of any common gaming house. Obviously Section 7 will not be attracted against the petitioners. Section 8 provides for penalty for being found gaming in a common gaming house. 5. Gaming has been defined in Section 2(b) of the Act thus: “2(b) “gaming” does not include a lottery but includes wagering or betting” 6. Having gone through the final report and other materials available on record, there is nothing to indicate that petitioners were actually found wagering or betting. The only allegation is that petitioners were also found in the room in question. 7. Having carefully perused the materials available on record, I do not find any justification in allowing the petitioners to be prosecuted for the offences alleged against them. Therefore the proceedings pending against the petitioners in S.T.No.6984/2003 on the file of the Judicial Magistrate of First Class, No.I, Manjeri are quashed. The Crl.M.C is allowed. A.K. Basheer Judge. an.