Libertatem Magazine

During Raid, Physical Presence of Accused Is Necessary To Hold Him Liable: Bombay High Court

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Brief Facts

The material on record shows that the police allegedly received secret information on 8th December 2017 about gaming activities being conducted at the premises, namely, Kapila Matrix, Pune. A raid was conducted and it was alleged that the Petitioner along with other accused persons had committed offences under the provisions of the Maharashtra Prevention of Gambling Act, 1887. The Petitioner was arrested in connection with the said case but was later released on bail. According to the completion of the investigation, a charge-sheet was filed against the accused persons, including the Petitioner for the offences under Sections 4 and 5 of the Act of 1887 as also certain provisions of the Maharashtra Prohibition Act, 1949 and the Cigarettes and Other Tobacco Products Act, 2003. 

Petitioner’s Arguments 

Learned counsel held that examination of the provisions of the Act of 1887 would show that the offences that were alleged against the Petitioner under Sections 4 and 5 were not made out, even if the material brought on record with the charge-sheet was to be taken into consideration. It was submitted that neither was the Petitioner found in the premises alleged to be the gaming house nor was he connected with the gaming house, in any manner. Hence, there was no question of the petitioner having indulged in any activity that could be said to be an offence under the Act of 1887. 

Respondent’s Arguments

Learned counsel stated that no relief could be granted to the Petitioner as the documents filed along with the charge-sheet indicated the Petitioner’s involvement. 

Court’s observation

The court referred to relevant provisions of the Act of 1887. Section 4 stipulates that a person, who opens, keeps or uses any house, room or place for a common gaming house or being the owner of such premises should allow it to be used for the said purpose or such a person was in the care or management of such a premise or advances money for gaming in such house shall be held liable. After going through the documents and the charge sheet, no connection could be found of the Petitioner to the premise. Even the leave and licence agreement did not show that the Petitioner was either a partner or was entrusted with the occupation of the said premises. It is somewhere alleged that the Petitioner is a partner ofNew World of Sports Club’ and therefore, could be connected with the said premises. But a perusal of the charge-sheet would show that a list of members of the said Club, annexed to the charge-sheet, did not show the Petitioner as a member of the gaming house.

As regards Section 5 of the Act of 1887, the Petitioner could be said to be prima facie connected with such offence only if it could be said that he was gaming in the said common gaming house or he was present for gaming. But the material on record did not show anywhere that when the raid was conducted by the police, the Petitioner was present in the said premises. In the case of the State of Haryana & Ors. vs. M.M.Salgaonkar Bhajan Lal & Ors. 1992 Supp. (1) SCC 335, the Hon’ble Supreme Court held in paragraph 102 observed that Category 1 to 3 that power could be exercised to prevent abuse of the process of any court when the allegations made in the FIR or the complaint do not prima facie constitute any offence or disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code and the evidence collected in support of the same doesn’t disclose the commission of any offence and make out a case against the accused.

Court’s Judgment

The Petitioner was not liable to face trial based on such a charge-sheet and accompanying material. The writ petition and pending application were disposed of.

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