IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.09.2008 CORAM: THE HONOURABLE MR.JUSTICE K. MOHAN RAM Crl.O.P.No.20722 of 2008 and M.P.No.1 of 2008 Sheik Syed alias Sheik Subhani .. Petitioner. Versus The Inspector of Police, E-3, Police Station, Korattur, Chennai. .. Respondent Petition filed under Section 482 Cr.P.C to call for the records and quash the First Information Report in Crime No.595 of 2008 as against the petitioner pending on the file of the respondent. For Petitioner : M/s. Su. Srinivasan For Respondent : Mr. A.Saravanan Government Advocate (Crl. Side) O R D E R This petition is filed seeking for a direction to call for the records and quash the First Information Report in Crime No.595 of 2008 as against the petitioner pending on the file of the respondent. 2. The above petition has been filed to quash the First information Report in Crime No.595 of 2008 on the file of the respondent. As per the allegations contained in the First Information Report, when the Sub-Inspector of Police, attached to the Korattur Police Station along with his raiding party was conducting inspection, he received information that at the premises located at No.4/1, Anna, third Cross Street, Padi, where the Seshadri Recreation Club is located, gambling is going on. He inspected the said premises after getting necessary permission from the learned Judicial Magistrate, Ambattur. During the course of inspection, it was found that A1 was supervising the playing https://hcservices.ecourts.gov.in/hcservices/ cards by A2 to A9 inside the said premises and A2 and A9 were playing the game of Mangaatha and having different colour tokens; when questioned, A1 threatened the raiding party stating that A10 namely, Sheik Syed alias Sheik Subhani (the petitioner herein) is the owner of the club and thereafter all of them tried to run away from the premises, but they were caught. It is also stated in the First Information Report that A10 was not present in the recreation club at the time of inspection. Thereafter, after returning to the station, a case has been registered in Crime No.595 of 2008 for the alleged offences under sections 8 and 9 of the Tamil Nadu Gaming Act, 1930 (herein after called as Act) read with section 506(2) IPC and section 5 of the TNPD Act. Challenging the registration of First Information Report as against A10, the above Criminal Original Petition has been filed seeking to quash the First Information Report. 3. Mr. Su.Srinivasan, learned counsel for the petitioner submitted that one Mr.S.Sundararajan, an Advocate has been appointed as Advocate Commissioner by this Court by order dated 12.09.2005 passed in W.P.No.28769 of 2005 to inspect the premises of the petitioner, Seshadri Recreation Club, Padi, particularly the card rooms of club and prepare a monthly report as to the activities of the recreation club and report to the Court and pursuant to his appointment, Advocate Commissioner has periodically reported and the Advocate Commissioner has not pointed out any illegality or irregularity in the conduct of the activities of the recreation club. Therefore, according to the learned counsel, the First Information Report registered is highly motivated and has no basis. Learned counsel further submitted that in the same order, this Court has directed the police authorities, the respondents therein not to interfere with the activities of the recreation club so long as it carries on its welfare activities in accordance with the conditions of licence and in accordance with law. Learned counsel further submitted that the petitioner herein is not the owner of the recreation club and he was the secretary of the club and as such no offence has been committed by him and therefore the proceedings in Cr.No.595 of 2008 is liable to be quashed. Learned counsel further submitted that since Seshadri Recreation Club is a registered society, the premises wherein the recreation club is being run cannot be called as common gaming house. The learned counsel for the petitioner further submitted that since Mr.M.Rangarajan, Inspector of Police, C3 Police station, Korattur, tried to interfere with the activities of recreation club on an earlier occasion, a contempt petition was filed in Contempt Petition No.378 of 2008 before this Court and the Contempt petition was closed by order dated 28.04.2008 and in view of the filing of the contempt petition, with a malafide intention, the First Information Report has been registered. https://hcservices.ecourts.gov.in/hcservices/ 4. I have considered the submissions made by the learned counsel on either side. 5. To appreciate the aforesaid contention of the learned counsel for the petitioner, it will be useful to refer to the order of this Court dated 12.09.2005 passed in W.P.No.28769 of 2005 which was filed by Seshatri Recreation Club. In the said order, the learned Judge issued the following direction which reads as follows: "i. The respondents are directed not to interfere with the activities of the petitioner, so long as the petitioner carries on its welfare activities in accordance with the conditions of licence and in accordance with law. ii.Without prejudice to the rights of both the parties, Mr.S.Sundararajan, Advocate, residing at No.5, Patel Street, Vijayalakshmipuram, Ambattur, Chennai-53 is appointed as Commissioner to inspect the premises of the petitioner association referred to above, particularly the card rooms of the petitioner association and prepare a monthly report as to the activities of the petitioner association and report to the Court. The remuneration of the Commissioner is fixed at Rs.5,000/- per month, which shall be paid by the petitioner." It will also be useful to refer to the definition of common gaming house as found in section 3 of the Act, which reads 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 of 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 include a lottery but includes wagering or betting, except wagering or betting on a horse race then such https://hcservices.ecourts.gov.in/hcservices/ 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. Explanation: For the purposes of this definitions, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution. "instruments of gaming" includes any article used or intended to be used as a subject of means of gaming any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or otherwise, distributed or intended to be distributed in respect of any gaming." Sections 8 and 9 of the Act reads as under: 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 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. If the allegations contained in the First Information Report are considered in the light of the definition of common gaming house as defined in section 3 of the Act, it could be easily seen that since there are allegations to the effect that the premises at No.4/1, Anna third Cross Street, Padi, wherein the https://hcservices.ecourts.gov.in/hcservices/ Seshadri Recreation Club is being run had been allowed to be used as common gaming house by A1 to A9; the said place comes under the definition of common gaming House. Similarly, as per section 8 of the Act, if any person permits any premises to be used as common gaming house or conducts or assists in conducting the business of any common gaming-house is liable to be prosecuted under section 8 of the Act. The allegations in the First Information Report, as far as the petitioner herein is concerned, attracts the ingredients of the offence under section 8 of the Act and therefore, the contention of the learned counsel that no allegations have made against the petitioner herein cannot be countenanced. Since the petitioner was admittedly not found in the common gaming house at the time when the raid was conducted by the respondent, section 9 of the Act is not attracted as against the petitioner herein. Simply because there was no mention about playing of the game of Mangaatha when the recreation club was inspected by the Advocate Commissioner, it does not mean that the said game was not being played at any point of time in the premises of the recreation club. Even in the order dated 12.09.2005 passed in W.P.No.28769 of 2005, the learned Judge has made it very clear that the respondents are directed not to interfere with the activities of the petitioner, so long as the petitioner carries on its welfare activities in accordance with the conditions of licence and in accordance with law. It is not the contention of the learned counsel for the petitioner that the licence granted to the petitioner permits the petitioner to conduct the game of Mangaatha inside the recreation club and as such the raid conducted by the respondent police in the recreation club does not in any any way violate the directions issued by the learned Judge. 7. In a recent decision rendered by the Apex Court in the case of "Central Bureau of Investigation vs. K.M.Sharan," the Apex Court after recapitulating the legal position which has been crystallised by a series of judgments of the English Courts and the Indian Courts and after referring to the leading cases on the scope of Section 482 of the Cr.P.C., has laid down in paragraphs 35 and 36 as under:- "35. At this stage, the High Court in its jurisdiction under Section 482 Cr.P.C was not called upon to embark upon the inquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the Court concerned after the entire material is produced before it on a thorough investigation and evidence is led. https://hcservices.ecourts.gov.in/hcservices/ 36. In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in the First Information Report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused (the respondent herein)" On a careful scrutiny and analysis of the allegations incorporated in the First Information Report, it is abundantly clear that the ingredients of Section 8 of the Tamil Nadu Gaming Act, 1930 are clearly made out in the instant case justifying the registration of a case and investigation thereon. 8. At this stage, while exercising the power under Section 482 of the Cr.P.C, this Court is not called upon to embark upon the enquiry whether the allegations in the First Information Report are reliable or not and thereupon to render a definite finding about the truthfulness or veracity of the allegations. These are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and evidence is led. This Court has to examine whether the allegations in the First Information Report taken on their face value are accepted in their entirety would prima facie constitute an offence for making out a case against the accused (petitioner herein). Section 482 Cr.P.C., is not an instrument handed over to an accused to short circuit the prosecution and bring about its sudden death. The inherent power should not be exercised to stifle a legitimate prosecution. In the light of the said principles, if the facts and materials available on record are scrutinised this Court can come to the only conclusion that the petitioner has not made out a case for quashing. 9. For the aforesaid reasons, this Court is not able to countenance the contention putforth by the counsel for the petitioner. The Criminal Original Petition fails and the same is dismissed. Consequently, connected Miscellaneous Petition is dismissed. Mra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Inspector of Police, E-3, Police Station, Korattur, Chennai. 2. The Public Prosecutor, High Court, Madras + 1 cc to Mr. Su. Srinivasan, Advocate SR No.50796 Crl.O.P.No.20722 of 2008 and M.P.No.1 of 2008 CK(CO) SR/17.10.2008 https://hcservices.ecourts.gov.in/hcservices/