THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Crl.R.C.No.1451 of 2009 Date:02nd September, 2009 Between: 1. Yele Narasimhulu & Ors. …Petitioners/Accused AND The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. ….Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Crl.R.C.No.1451 of 2009 JUDGMENT: This Criminal Revision Case is directed against the order dated 04.08.2009 passed in Crl.M.P.No.421 of 2009 in C.C.No.71 of 2009 on the file of II Additional Judicial Magistrate of First Class, Proddatur, whereby and whereunder the learned Magistrate dismissed the application filed under Section 239 Cr.P.C. seeking discharge from the case for the offences under Section 420 IPC and under Section 9(1) of the A.P. Gaming Act, 1974. 2. Background facts of the case leading to filing of this revision by the accused in C.C.No.71 of 2009 are: The petitioners 2, 3, 5 and 6 (A2, A3, A5 and A6) are residents of Proddatur town, and while petitioners 1 and 4 are residents of Khadarabad and Dorasanipalli villages of Prodddatur Mandal respectively. LW.6 U.Sada Sivaiah, Sub-Inspector of Police, Proddatur Rural P.S., obtained search notice from the Sub-Divisional Police Officer, Proddatur. He secured two mediators viz., LW.1 Kandula Raja GopalReddy and LW.2-Kalamadi Venkata Krishna Murthy and searched the house bearing No.2- 218, S.B.I. Colony, Proddatur on 30.08.2008 at about 1.40 P.M. All the petitioners were found in the house. They confessed to have organized cricket betting by taking the house bearing No.2-218 of SBI Colony, Proddatur, owned by LW.3 Balla Gurivi Reddy @ Meesala Bala Gurivi Reddy for rent and booked parties by contacting from their respective cell phones. 5 Cell Phones and cash of Rs.1,25,000/- from the possession of 1st petitioner/A1; 5 cell phones and cash of Rs.85,000/- from the possession of 2nd petitioner/A2; 5 cell phones and cash of Rs.1,20,000/- from the possession of 3rd petitioner/A3; 5 cell phones and cash of Rs.70,000/- from the possession of 4th petitioner/A4; 2 cell phones and cash of Rs.65,000/- from the possession of 5th petitioner/A5 and 2 cell phones and cash of Rs.45,100/- from the possession of 6th petitioner/A6, totaling to Rs.5,10,000/- and 24 cell phones along with 6 lists containing the names of persons who participated in the above cricket betting, 3 cell phone chargers, one Videocon Television and one stabilizer, came to be seized under the cover of panchanama in the presence of Lw.1- Kandula Raja Gopal Reddy and LW.2-Kalamadi Venkata Krishna Murthy. Basing on the panchanama, a case in Crime No.168 of 2008 for the offences under Section 420 IPC and under Sections 3 and 4 of the A.P. Gaming Act (Cricket betting) came to be registered. After due investigation, a charge-sheet came to be presented before the 1st Additional Judicial Magistrate of First Class, Proddatur. The learned Magistrate took the charge-sheet on file as CC No.71 of 2009 and issued summons. The petitioners/accused entered appearance and filed Crl.M.P.No.421 of 2009 seeking discharge from the case for the offences under Section 420 IPC and under Section 9(1) of the A.P. Gaming Act. The learned Magistrate, on considering the material brought on record and on hearing the prosecution and the accused, dismissed the application by order dated 04.08.2009. The said order is assailed in this revision. 3. Heard learned counsel appearing for the petitioners/accused and learned Additional Public Prosecutor appearing for the respondent/State. 4. Learned counsel appearing for the petitioners/accused submits that the place from where incriminating material came to be seized is not a public place and therefore, the provisions of Section 9 of the A.P. Gaming Act, 1974, cannot be pressed into service and in which case, the petitioners/accused are entitled to be discharged from the case for the offences under Section 420 IPC and under Section 9(1) of A.P. Gaming Act, 1974. In support of her contention, reliance has been placed on the following decisions: 1) Rajan Bharathi v. Damodaran[1] 2) Erappa v. State of Mysore[2] 3) In re. K.Munirathnam[3] 5. The Mysore High Court in Errappa's case (2 supra), it has been observed at para.7 of the judgment as follows: ..There is no evidence to show that to this hotel, the public had access, or that the public usually used to resort to it. More than that, the evidence on record does not justify the conclusion that the place where the gambling was going on was a place to which the public had access or that they used to resort to it........” 6. In In re K.Munirattnam's case (3 supra), it has been held that under the Gaming Act, gaming as such is not an offence but only gaming in a common gaming-house or in a public place is made punishable, the one under S.9 & the other under S.12 of the Act. Therefore, unless it is shown that the ancillary or accessory acts contemplated by the Explanation to the definition of gaming in S.3 are themselves committed in a public place, the person concerned cannot be said to be found gaming in a public place, so as to render himself liable under S.12. 7. Learned Additional Public Prosecutor appearing for the respondent/State supported the order impugned in the revision. 8. The contention of the learned counsel appearing for the petitioners/accused appears to be sound on first blush, but on close scrutiny of the provisions of Section 9 of the A.P. Gaming Act, 1974, I do not detain myself long to reject the contention advanced by the learned counsel appearing for the petitioners/accused. Section 9(1) of the A.P. Gaming Act reads as hereunder: “ 9. Penalty for gaming or setting birds or animals to fight in a public street or place:- (1) Whoever is found gaming or reasonably suspected to be gaming in any public street or thorough fare or in any place to which the public have, or are permitted to have, access shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to three hundred rupees or with both. (2) …..” The accusation made against the petitioners/accused is that they took the house owned by LW.3Balla Gurivi Reddy @ Meesala Bala Gurivi Reddy for rent and permitted the public to have an access for participating in cricket betting. Therefore, prima facie, the premises from which incriminating material came to be seized comes within the purview of Section 9(1) of the A.P. Gaming Act, 1974. Therefore, I do not see any irregularity or illegality in the order impugned in the revision warranting interference of this Court in exercising powers either under Section 397 Cr.P.C. under Section 401 Cr.P.C. 9. Accordingly, the Criminal Revision Case is dismissed at the admission stage. ______________________ B.SESHASAYANA REDDY, J. Date:02nd September, 2009. cs [1] AIR (37) 1950 Madras 730 (C.N.305) [2] AIR `964 Mysore 53 (V 51 C 17) [3] AIR 1958 A.P.327