High Court
Legal Reasoning
904 to 908.Crl.WP.200.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.200 OF 20241.Akshay Anant Matkar2.Shri Datta Raju Mudde3.Shri Abhishek Vijay Dhotre4.Shri Shubhas Dadarao Naikwadi5.Shri Dyaneshwar Laxman Bhakte… PETITIONERS VERSUS1.State of Maharashtra 2.Police Inspector,Osmanabad City Police StationDist. Osmanabad …RESPONDENTS…ANDCRIMINAL WRIT PETITION NO.201 OF 20241.Akshay Anant Matkar2.Nitin Eknath Potdar3.Shri Kundalik Mahadev Shinde4.Shri Sandeep Shubhash More5.Shri Vishwanand Sumitr Jagtap… PETITIONERS VERSUS1.State of Maharashtra 2.Police Inspector,Osmanabad City Police Station Dist. Osmanabad …RESPONDENTS …ANDCRIMINAL WRIT PETITION NO.203 OF 20241.Akshay Anant Matkar2.Sarfaraj Mehmood Mujawar 3.Mohammad Shaikh Rashid1/10 904 to 908.Crl.WP.200.24.odt4.Shri Vijay Bhagawan Kamble5.Shri Gulab Hakkani Tamnboli6.Shri Somnath Manik Mane7.Shri Akshay Satish Tapre8.Shri Firroj Hahiba Fattepure … PETITIONERS VERSUS1.State of Maharashtra 2.Police InspectorOsmanabad City Police Station Dist. Osmanabad …RESPONDENTS …ANDCRIMINAL WRIT PETITION NO.204 OF 20241.Akshay Anant Matkar2.Mahesh Devidas Pawar3.Shri Pradeep Eknath Potdar4.Shri Mahadev Pandurang Survase5.Shri Pandurang Ganpati Hunde6.Shri Jeevan @ Anubule Manik Ingle7.Shri Rajkumar Pralhad Gaikwad8.Shri Hanumant Laxman Koli9.Shri Nagesh @ Ganesh Changdev Gade10.Shri Machindra Rangrao Wadgne … PETITIONERS VERSUS1.State of Maharashtra 2.Police InspectorOsmanabad City Police Station Dist. Osmanabad …RESPONDENTS …ANDCRIMINAL WRIT PETITION NO.205 OF 20241.Akshay Anant Matkar2.Mahesh Devidas Pawar 3.Akshy Satish Tapre2/10 904 to 908.Crl.WP.200.24.odt4.Firoj Hajoba Mattekhane5.Kamlakar Ambadas Tavare6.Amitkumar Dhanykumar Gambhir7.Satish Ramkrushna Gawad8.Satish Vittalrao Tapre… PETITIONERS VERSUS1.State of Maharashtra 2.Police InspectorOsmanabad City Police Station Dist. Osmanabad …RESPONDENTS...Advocate for petitioners in all WPs : Mr. Rushikesh C. BargeA.P.P. for respondent/State : Mr. G.A. Kulkarni… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.Reserved On : 08.03.2024Pronounced On : 19.03.2024 ORDER (PER : MANGESH S. PATIL, J.) :These are petitions filed under Article 226 of theConstitution of India read with Section 482 of the Code of CriminalProcedure, seeking quashment of separate crimes for different offencespunishable under the Maharashtra Prevention of Gambling Act, 1887(herein after the Gambling Act).2.Since the facts and circumstances in all these matters areexactly the same and the offences have been registered pursuant to a raideffected by Assistant Superintendent of Police probably resorting toSection 6 (1) (ii) of the Gambling Act, in order to avoid rigmarole allthese matters are being disposed of by this common judgment. 3/10
Legal Reasoning
904 to 908.Crl.WP.200.24.odt3.We have heard both the sides finally with their consent.4.On a tip off received by the Assistant Superintendent ofPolice Mr. Pankaj Kumavat, the police including him, effected raids onvarious establishment from Osmanabad City perhaps from the samecomplex, one after the other between 17.45 and 19.00 on 13.05.2022. Itis alleged that all these premises were being used as common gaminghouse. The instruments of gaming were seized. These petitioners werearrested except the petitioner No.1. Offences were registered in WritPetition No.200/2024 under Section 12(a), whereas, in the otherpetitions under Section 4 and 5 of the Gambling Act. 5.It appears that the investigating machinery was suspectingthat the game which was being played was known as ‘WINGAME’ and thepetitioner No.1 having a patent and copyright of the software has beenimplicated. There is nothing to demonstrate that he was himself presentwhen the raid was effected.6.The learned advocate for the petitioners would begin withdemonstrating as to how the game developed by petitioner No.1 knownas WINGAME is a game involving pure mathematics and is not a game ofchance. He even demonstrated that he was also implicated in a crime inSatara but a division bench in Criminal Writ Petition No.1175/2023 bythe judgment and order dated 30.03.2023 has held it to be not a game ofchance but involving mathematical skills and the crime has beenquashed.4/10 904 to 908.Crl.WP.200.24.odt7.After going through the papers when we put a query tolearned advocate as to from where it can be discerned that the game thatwas alleged by being played in the premises wherein the raids wereeffected in the matters in hand was a WINGAME. Neither the learnedadvocate for the petitioners nor the learned APP could precisely point outfrom the papers as to what actually was the game that was being playedor suspected that it was being played at these places. If such is the stateof affairs, when there are no specific and precise allegations as to whatwas actually the game that was being played, in our considered view, itcannot be ascertained as to if it was a game of skill or a game of chance.Merely because petitioner No.1 is a proprietor of WINGAME, the learnedadvocate for the petitioners seem to be taking us through the judgment inhis matter, of a division bench at the Principal Seat and has made anendeavour to demonstrate as to how it is a game of mathematical skillsand not a game of chance. Any such inquiry in the present matter wouldbe redundant and would not lead us to anything.8.In view of such peculiar state of affairs, therefore, it wasimperative for the prosecution to demonstrate as to why petitioner No.1is being implicated. No specific and precise charge has been indicated asagainst him. He along with the persons who were actually running thealleged gaming houses and the persons who were actually gaming at thesite have been roped in, in all these crimes. 9.Independently, even if it is assumed for the sake of argument5/10 904 to 908.Crl.WP.200.24.odtthat WINGAME was the game that was being played, apart from the factthat in that case the observations of the division bench at the PrincipalSeat would seal the fate of it being a game of mathematical skill, there isno provision under the Gambling Act for inventing even a game ofchance. The offences therein are in respect of actual gaming and not fordeveloping a game which can be used for gambling. Therefore, neitherthe offence punishable under Section 12(a) or Sections 4 and 5 of theGambling Act could be invoked against petitioner No.1. Therefore, to hisextent, it is indeed a matter which is liable to be quashed as has beendone by the division bench at the Principal Seat, albeit we are resortingto additional reasons.10.So far as the allegations qua the rest of the petitioners,suffice for the purpose to observe that they were found at the spot. Theinstruments have been seized as also money. Even some chits bearingnumbers were found and have been seized and by virtue of Section 7 ofthe Gambling Act there would be a presumption regarding keeping orgaming in a common gaming house.Section 4, 5 and 7 read as under : “4.(1) Whoever — (a) opens, keeps or uses any house, room or place for thepurpose of a common gaming house,(b) being the owner or occupier of any such house, room orplace knowingly or wilfully permits the same to be opened,occupied, kept or used by any other person for the purposeaforesaid,(c)has the care or management of, or in any manner assists inconducting the business of, any such house, room or place6/10 904 to 908.Crl.WP.200.24.odtopened, occupied, kept or used for the purpose aforesaid,(d)advances or furnishes money for the purposes of gamingwith persons frequenting any such house, room or place,shall, on conviction, be punished with imprisonment whichmay extend to two years and may also be punished withfine :Provided that—(a)for a first offence such imprisonment shall not be less thanthree months and fine shall not be less than five hunderedrupees ; (b)for a second offence such imprisonment shall not be lessthan six months and fine shall not be less than onethousand rupees ;and (c)for a third or subsequent offence such imprisonment shallnot be less than one year and fine shall not be less thantwo thousand rupees.(2) Nothing contained in the provisions of the Probation of Offenders Act, 1958, or in sub-sections (1), (4), (5) and (6) of section 360 of the Code of Criminal Procedure, 1973, shall apply to any person convicted under this section.5.Whoever is found in any common gaming-house gamingor present for the purpose of gaming, shall on conviction bepunished with imprisonment which may extend to six monthsand may also be punished with fine :Provided that—(a) for a first offence such imprisonment shall not be less thanone month and fine shall not be less than two hundredrupees ; (b)for a second offence such imprisonment shall not be lessthan three months and fine shall not be less than twohundered rupees ;and(c)for a third or subsequent offence such imprisonment shallnot be less than six months and fine shall not be less thantwo hundered rupees.Any person found in any common gaming-house duringany gaming therein shall be presumed, until the contrary7/10 904 to 908.Crl.WP.200.24.odtis proved, to have been there for the purpose of gaming.7.When any instrument of gaming has been seized in anyhouse, room or place entered under section 6 or about theperson of any one found therein, and in the case of any otherthings so seized if the Court is satisfied that the Police officerwho entered such house, room or place had resonable groundsfor suspecting that the things so seized was an instrument ofgaming, the seizure of such instrument or thing shall beevidence, until the contrary is proved, that such house, room orplace is used as a common gaming house and the person foundtherein were then present for the purpose of gaming, althoughno gaming was actually seen by the Magistrate or the Policeofficer or by any person acting under the authority of either ofthem :Provided that the aforesaid presumption shall be made,notwithstanding any defect in the warrant or order inpursuance of which the house, room or place was enteredunder section 6, if the Court considers the defect not to be amaterial one.”11.True it is that some of these petitioners owned the placeswhere the raid was effected as also the paraphernalia and some of themwere present therein for the purpose of gaming and consequentlydepending upon their such role, they could be tried either under Section4 or 5 but that would be a matter of framing of charge/recording of pleafor specific offence which is to be done by the trial court. We need not beguided by such a distinction.12.True it is, as has been cursorily observed herein above, thereseem to be no specific and precise allegations or investigation to ascertainas to what was the game being played. However, it would be a matter ofevidence to be led by the prosecution which can only happen during the8/10
Decision
904 to 908.Crl.WP.200.24.odttrial. It is in the peculiar circumstances, as has been indicated hereinabove even presumption under Section 7 will have its role.13.In these circumstances, in our considered view, these are notthe fit cases where the request of the petitioners except the request ofpetitioner No.1 for quashment of the crime can be considered under theextraordinary powers under Article 226 of the Constitution India andSection 482 of the Code of Criminal Procedure.14.The writ petitions are partly allowed. The CrimeNo.113/2022 registered with Osmanabad City Police Station, Dist.Osmanabad for the offences punishable under Section 12(a) of theMaharashtra Prevention of Gambling Act 1887, the consequent FinalReport No.53/2022 and Criminal Proceeding bearing SCC No.1450/2022to the extent of petitioner No.1 - Akshay Anant Matkar are quashed andset aside.15.The Crime Nos.109/2022 and 110/2022 registered withOsmanabad City Police Station for the offences punishable under Sections4 and 5 of the Maharashtra Prevention of Gambling Act 1887, theconsequent Final Report Nos.32/2022 and 43/2022, and CriminalProceedings bearing SCC Nos.1049/2022 and 1231/2022 respectively tothe extent of petitioner No.1 – Akshay Anant Matkar are quashed and setaside.16.The Crime Nos.127/2022 and 126/2022 registered withAnandnagar Police Station, Dist. Osmanabad for the offences punishable9/10 904 to 908.Crl.WP.200.24.odtunder Section 4 and 5 of the Maharashtra Prevention of Gambling Act1887, the consequent Final Report Nos.57/2022 and 45/2022 andCriminal Proceedings bearing SCC Nos.1057/2022 and 769/2022respectively to the extent of petitioner No.1 - Akshay Anant Matkar arequashed and set aside. 17.Rest of the writ petitions in respect of rest of the petitionersare dismissed. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb10/10