1 142.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.142 OF 2011 Damodar Ganpat Khopade & Ors. ...Petitioners Versus Commissioner of Police & Ors. ...Respondents WITH CRIMINAL WRIT PETITION NO.143 OF 2011 Jaysingh Vishnu Desai & Ors. ...Petitioners Versus Commissioner of Police & Ors. ...Respondents ...... Mr.Shirish Gupte, Sr.Counsel with Mr.Rohan Darandale & Mr.U.R.Agandsurve for Petitioners in both Petitions. Ms.M.H.Mhatre, A.P.P. for State in Cri.WP/142/11. Mr.K.V.Saste, A.P.P. for State in Cri.WP/143/11. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- JANUARY 25, 2011. P.C. 1. By these two Petitions, it is prayed that the F.I.R. registered against the respective Petitioners by the Officer In-charge of Thane Nagar Police Station dated 14th November, 2010 be quashed and set-aside. The F.I.R. is registered against the named accused for offence punishable under Sections 4 and 5 of the Bombay Prevention of Gambling Act, 1887 and Sections 2 142.11 33(w)(i) and 131 of the Bombay Police Act, 1951. In the F.I.R., it is stated that raid was conducted at the respective locations when it was noticed that the persons gathered at the said places were playing cards and it was obvious that it was a gambling activity as plastic counters were seized from the cashier’s counter as well as from the respective tables where the said persons were found to be playing cards. Besides, the F.I.R. records that mmediately after the raid was conducted, panchnama has been drawn recording all the relevant facts which were noticed at the relevant time and seizure of the plastic counters from the respective persons as well as the cashier’s counter was done. The Petitioners, however, submit that playing rummy is not a game of chance but it involves considerable skill and therefore the offence as registered against them cannot proceed inspite of the fact that plastic counters were recovered from the spot. 2. To buttress this submission, reliance is placed on the Judgment of the Apex Court in the case of The State of Andhra Pradesh vs. K.Satyanaraana & Ors. reported in AIR 1968 SC 825. In the first place, this Judgment cannot be an authority on the question whether the F.I.R. ought to be quashed in the fact situation of the present case. We may agree with the submission of the Counsel for the Petitioners that the broad facts 3 142.11 involved in the reported decision and the case on hand may appear to be similar. However, the decision of the Apex Court is in the matter where case went for trial resulting in finding of guilt and conviction by the Trial Court in the first place. Indeed, the Apex Court has upheld the opinion of the High Court which reversed the decision of the lower Court. While considering the matter in this background, the Apex Court has observed that the game of rummy is not entirely game of chance like the three-card game which goes under different names such as `flush’, `brag’, etc. which are game of pure chance. Rummy on the other hand, requires certain skill because the fall of the cards has to be memorized and the building up of rummy requires considerable skill in holding and discarding cards. It is further observed that the game of rummy cannot be considered as a game of entire chance. At the same time, the Apex Court in the same Judgment in Paragraph 12 went on to observe that if there is evidence of gambling in some other way or that the owner of the house or the club is making profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home. In that case of the Apex Court, the Court opined that those elements were missing in which the decision of the High Court was upheld. In the present case, we are at the threshold stage of F.I.R. The Petitioners are inviting us to quash the F.I.R. as registered. 4 142.11 3. Going by the F.I.R., it is not possible to accept the argument of the Petitioners that no case whatsoever indicating the commission of offence of gambling has been made out at all. The F.I.R., if read as a whole, and more so, along with the material such as spot and seizure panchnama, we are unable to accept the request of the Petitioners of quashing of the F.I.R. Indeed, after the investigation is complete and police report/charge-sheet is filed under Sections 173(2) of the Code, the Petitioners- all of them or individually may be able to demonstrate that no case to proceed with the offence against them is made out and apply for discharge at the appropriate stage. Those proceedings will have to be considered on its own merits in accordance with law. Suffice it to observe that going by the F.I.R. in question, it is not possible to accept the grievance of the Petitionerd that the same cannot proceed further in law. 4. Counsel for the Petitioners also placed reliance on the unreported decision of the Division Bench of our High Court in the case of The Cricket Club of India Ltd. & Ors. vs. State of Maharashtra & Ors. in Writ Petition No.1389/2008 and companion Writ Petitions decided on 14th July, 2008. The question in the said matter, however, was somewhat different and cannot be the basis to answer the relief claimed in the present 5 142.11 Petition for quashing of F.I.R. The fact where the premises in which the Petitioners were found at the relevant time was a private place or for that matter, no license was required to be obtained by the Trust for allowing such activity to be performed in the said place, will be of no avail. The fact remains that the allegation in the F.I.R. proceeds on the basis that there is evidence of gambling and making of profit or gain from the game of rummy by the stakeholders who were arrested on the spot during the raid. Those are matters which will have to be investigated and tried by the Court at the appropriate stage. 5. Our attention was invited to other orders which form part of the compilation which however are only ad-interim orders or interim orders passed during the pendency of the Writ Petitions. That can be no basis to answer the controversy before us. Accordingly, both these Petitions fail. The same are dismissed. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)