Lavkush Singh @ Uday Pratap Singh … v. State of U.P. another and

Judgment

1. In the instant case short question has been arisen as to whether the offence punishable under Section 13 of the Public Gambling Act, 1867 is non cognizable offence?

2. The present application under section 482 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) has been filed with a prayer to quash the entire proceedings of Criminal Case No. 21 of 2024 arising out of Case Crime No. 153 of 2023, under Section 13 of the Public Gambling Act, 1867, Police Station Jigana, District Mirzapur as well as cognizance/ summoning order dated 03.01.2024, pending in the Court of Additional Civil Judge (Senior Division)/F.T.C., Mirzapur .

Brief facts of the case are that the first information report dated

25.10.2023 has been lodged by Sub Inspector of local police based on recovery and arresting of 4 accused persons including the present applicant and five other persons under Section 13 of the Public Gambling Act and recovered certain currency and playing cards. After completing investigation as State case, charge-sheet has been submitted 2 on 13.12.2023 and cognizance/ summoning order was passed on

03.01.2024 by the concerned Magistrate.

4. Learned counsel for the applicant submitted that offence, under Section 13 of the Public Gambling Act, as amended by the U.P. Amendment Act No. 21 of 1961, constitutes a non cognizable offence and it provides punishment for first offence is punishable with a fine not exceeding two hundred and fifty rupees nor less than fifty rupees, or to rigorous imprisonment for a term not exceeding one month; and in the case of any subsequent offence punishable with a fine not exceeding five hundred rupees nor less than one hundred rupees, and rigorous imprisonment for a term not exceeding six months nor less than one month. It is further contended that as per Part II of first Schedule of the Cr.P.C., the offence under Section 13 of Gambling Act is a non-cognizable offence. Due to this reason the Investigating Officer has no power to start investigation without prior permission of concerned Magistrate.

5. It is further argued that as per allegations of the F.I.R. four persons had been arrested in chasing conditions. There is no pre-summoning evidence with regard to fact that the act of Gambling is taken place in public place or private place. It is further submitted that charge-sheet has been submitted against the other 5 persons on the basis of confessional statement of arrested co-accused persons before police which is irrelevant. It is further submitted that police report has been submitted as cognizable case after investigating a non cognizable case without any prior permission of Magistrate concerned under Section 155(2) of Cr.P.C. and cognizance order has also been passed thereupon.

7. Learned A.G.A. has vehemently opposed the prayer. Heard Sri Shrey Singh and Ms. Ragini Gupta learned counsels for the applicant and Sri Kamleshwar Singh, learned A.G.A. is present and perused the material on record.

8. Before dealing with arguments of the parties, it is apposite to revisit the position of law. In this regard Section 13 of Public Gambling Act reproduced as under: “Section 13. Gaming and setting birds and animals to fight in public streets - 3 A police officer may apprehend without warrant- any person found playing for money or other valuable thing, with cards, dice, counters or other instruments of gaming, used in playing any game not being a game of mere skill in any public street, place or thoroughfare situated within the limits aforesaid, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the limits aforesaid, or any person there present aiding and abetting such public fighting of birds and animals. Such person when apprehended shall be brought without delay before a Magistrate, and shall be liable - a. In the case of first offence to a fine not exceeding two hundred and fifty rupees nor less than fifty rupees; or to rigorous imprisonment for a term not exceeding one month; and b. In the case of any subsequent offence to a fine not exceeding five hundred rupees nor less than one hundred rupees and rigorous imprisonment for a term not exceeding six months nor less than one month. Destruction of instruments of gaming found in public streets - Any such police officer may seize all instruments of gaming found in such public place or on the person of those whom he shall so arrest, and the Magistrate may, on conviction of the offender, order such instruments to be forthwith destroyed.”

9. Scope of order of the Magistrate to investigate a non-cognizable offence is provided under Section 155(2) of Cr.P.C. for sake of convenience. Section 155 of Cr.P.C. is reproduced herein below; (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

10. ‘Non-cognizable offence’ and ‘Cognizable offence’ defined under Section 2(l) of Cr.P.C. and 2(c) of Cr.P.C. which are reproduced as under: Section 2(l) non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant. 4 Section 2(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

11. After close scrutiny of the aforesaid provisions, it is crystal clear that no police officer can investigate a non cognizable offence without the order of the Magistrate having power to try such case or commit the case for trial and the police officer after passing such order may exercise same power in respect of investigation as may exercise in a cognizable offence. However, the officer has no power to arrest without warrant.

12. It is also settled position of a law that where a case relates two or more offences, if one case is cognizable, the case deemed to be a cognizable case.

13. Offence punishable under Section 13 of the Public Gambling Act as per State amendment, is punishable with imprisonment for not exceeding six months nor less than one month. In Part II of first schedule of Cr.P.C. a list of classification of offences against other laws has been given wherein it has been provided that if any offence punishable with imprisonment for less than 3 years or with fine only, the case deemed to be in the category of non-cognizable offence.

14. It is also significant to note that there is no pre-summoning evidence with regard to the fact that the incident was take place at public place, public street as define under Section 13 of the Public Gambling Act.

15. The cognizance order has been passed without considering the facts, circumstances and position of law as the charge-sheet has been submitted for a non-cognizable offence without any prior order for investigation of the Magistrate concerned having jurisdiction.

16. It is settled position of law that as illustrated in State of Haryana and others Vs. Bhajan Lal and others 1992 SCC (Cri.) 426 wherein 7 categories of cases have been formulated for quashing of FIR/complaint with regard to prevent the abuse of process of law and to secure the ends of justice. In the 5 present case, the trial court has committed grave error in taking cognizance in the offence related to non-cognizable offence without any prior permission of Magistrate under Section 155(2) of Cr.P.C. for investigation.

17. Hence, the present application is liable to be allowed and the entire proceedings of Criminal Case No. 21 of 2024 arising out of Case Crime No. 153 of 2023, under Section 13 of the Public Gambling Act, 1867, Police Station Jigna, District Mirzapur as well as cognizance/ summoning order dated 03.01.2024, pending in the Court of Additional Civil Judge (Senior Division)/F.T.C., Mirzapur are liable to be quashed.

18. The present Application U/S 482 of Cr.P.C. is, accordingly, allowed. (Sanjay Kumar Pachori, J.) April 29, 2026 Ishan

Brief facts of the case are that the first information report dated

25.10.2023 has been lodged by Sub Inspector of local police based on recovery and arresting of 4 accused persons including the present applicant and five other persons under Section 13 of the Public Gambling Act and recovered certain currency and playing cards. After completing investigation as State case, charge-sheet has been submitted 2 on 13.12.2023 and cognizance/ summoning order was passed on

03.01.2024 by the concerned Magistrate.

4. Learned counsel for the applicant submitted that offence, under Section 13 of the Public Gambling Act, as amended by the U.P. Amendment Act No. 21 of 1961, constitutes a non cognizable offence and it provides punishment for first offence is punishable with a fine not exceeding two hundred and fifty rupees nor less than fifty rupees, or to rigorous imprisonment for a term not exceeding one month; and in the case of any subsequent offence punishable with a fine not exceeding five hundred rupees nor less than one hundred rupees, and rigorous imprisonment for a term not exceeding six months nor less than one month. It is further contended that as per Part II of first Schedule of the Cr.P.C., the offence under Section 13 of Gambling Act is a non-cognizable offence. Due to this reason the Investigating Officer has no power to start investigation without prior permission of concerned Magistrate.

5. It is further argued that as per allegations of the F.I.R. four persons had been arrested in chasing conditions. There is no pre-summoning evidence with regard to fact that the act of Gambling is taken place in public place or private place. It is further submitted that charge-sheet has been submitted against the other 5 persons on the basis of confessional statement of arrested co-accused persons before police which is irrelevant. It is further submitted that police report has been submitted as cognizable case after investigating a non cognizable case without any prior permission of Magistrate concerned under Section 155(2) of Cr.P.C. and cognizance order has also been passed thereupon.

7. Learned A.G.A. has vehemently opposed the prayer. Heard Sri Shrey Singh and Ms. Ragini Gupta learned counsels for the applicant and Sri Kamleshwar Singh, learned A.G.A. is present and perused the material on record.

8. Before dealing with arguments of the parties, it is apposite to revisit the position of law. In this regard Section 13 of Public Gambling Act reproduced as under: “Section 13. Gaming and setting birds and animals to fight in public streets - 3 A police officer may apprehend without warrant- any person found playing for money or other valuable thing, with cards, dice, counters or other instruments of gaming, used in playing any game not being a game of mere skill in any public street, place or thoroughfare situated within the limits aforesaid, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the limits aforesaid, or any person there present aiding and abetting such public fighting of birds and animals. Such person when apprehended shall be brought without delay before a Magistrate, and shall be liable - a. In the case of first offence to a fine not exceeding two hundred and fifty rupees nor less than fifty rupees; or to rigorous imprisonment for a term not exceeding one month; and b. In the case of any subsequent offence to a fine not exceeding five hundred rupees nor less than one hundred rupees and rigorous imprisonment for a term not exceeding six months nor less than one month. Destruction of instruments of gaming found in public streets - Any such police officer may seize all instruments of gaming found in such public place or on the person of those whom he shall so arrest, and the Magistrate may, on conviction of the offender, order such instruments to be forthwith destroyed.”

9. Scope of order of the Magistrate to investigate a non-cognizable offence is provided under Section 155(2) of Cr.P.C. for sake of convenience. Section 155 of Cr.P.C. is reproduced herein below; (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

10. ‘Non-cognizable offence’ and ‘Cognizable offence’ defined under Section 2(l) of Cr.P.C. and 2(c) of Cr.P.C. which are reproduced as under: Section 2(l) non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant. 4 Section 2(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

11. After close scrutiny of the aforesaid provisions, it is crystal clear that no police officer can investigate a non cognizable offence without the order of the Magistrate having power to try such case or commit the case for trial and the police officer after passing such order may exercise same power in respect of investigation as may exercise in a cognizable offence. However, the officer has no power to arrest without warrant.

12. It is also settled position of a law that where a case relates two or more offences, if one case is cognizable, the case deemed to be a cognizable case.

13. Offence punishable under Section 13 of the Public Gambling Act as per State amendment, is punishable with imprisonment for not exceeding six months nor less than one month. In Part II of first schedule of Cr.P.C. a list of classification of offences against other laws has been given wherein it has been provided that if any offence punishable with imprisonment for less than 3 years or with fine only, the case deemed to be in the category of non-cognizable offence.

14. It is also significant to note that there is no pre-summoning evidence with regard to the fact that the incident was take place at public place, public street as define under Section 13 of the Public Gambling Act.

15. The cognizance order has been passed without considering the facts, circumstances and position of law as the charge-sheet has been submitted for a non-cognizable offence without any prior order for investigation of the Magistrate concerned having jurisdiction.

16. It is settled position of law that as illustrated in State of Haryana and others Vs. Bhajan Lal and others 1992 SCC (Cri.) 426 wherein 7 categories of cases have been formulated for quashing of FIR/complaint with regard to prevent the abuse of process of law and to secure the ends of justice. In the 5 present case, the trial court has committed grave error in taking cognizance in the offence related to non-cognizable offence without any prior permission of Magistrate under Section 155(2) of Cr.P.C. for investigation.

17. Hence, the present application is liable to be allowed and the entire proceedings of Criminal Case No. 21 of 2024 arising out of Case Crime No. 153 of 2023, under Section 13 of the Public Gambling Act, 1867, Police Station Jigna, District Mirzapur as well as cognizance/ summoning order dated 03.01.2024, pending in the Court of Additional Civil Judge (Senior Division)/F.T.C., Mirzapur are liable to be quashed.

18. The present Application U/S 482 of Cr.P.C. is, accordingly, allowed. (Sanjay Kumar Pachori, J.) April 29, 2026 Ishan