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Judgment
Natarajan, J.—The petitioners who are members of the Cosmopolitan Club, Kovilpatty, have filed this petition under S. 482. Crl.P.C., for
quashing the proceedings against them in C.C. No. 308 of 1981 on the file of the Judicial Second Class Magistrate, Kovilpatty.
The said case has been taken cognizance of by the Magistrate on the basis of a charge-sheet filed by the Sub Inspector of Police, Kovilpatty,
regarding the commission of offences under Ss. 8 and 9 of the Madras Gaming Act. The charge-sheet is to the following effect: On 28th February,
1981, the Sub Inspector of Police received reliable information that gambling activities were going on at Door No. 54, in Shandypet Street,
Kovilpatti. After obtaining permission from the Assistant Superintendent of Police to raid the premises, the Sub Inspector, under the supervision of
the Inspector of Police, and in the company of the Assistant Sub Inspector of Police and certain constables, went to the premises in question along
with two witnesses, Duraipandian and Arumugham at about 3 a.m. on 1st March, 1981. On reaching the premises, he found the doors to be
closed. On knocking the doors, Kaliappan (accused No. 10) opened the door. On entering the premises, it was found that accused 1 to 9 were
seated around a round-table in the hall beyond the verandah. There were 52 cards and a cash of Rs. 1,216. 10ps. on the table. Accused 1 to 9
were saying ""close card Rs. 10, Open Rs. 10, winning and losing."" and shuffling and picking up the cards . The Police party arrested accused 1 to
9 and seized the cards and cash and also arrested the 10th accused for having permitted accused 1 to 9 to indulge in gambling activities in the
premises. The accused were taken to the police station and a case was registered in Crime Nos. 141 to 150 of 1981 under Ss. 8 and 9 of the
Madras Gaming Act (hereinafter referred to as the Act).
The petitioners (accused) subsequently obtained bail from Court and now they have come forward with this petition to quash the said
proceedings.
In their petition, the petitioners have stated as follows : They are members of the Cosmopolitan Club, Kovilpatty, which has been registered as a
Society under the Tamil Nadu Societies Registration Act, 1860. The Club has a membership of 74 members and the members are drawn from a
respectable cross section of the local population including Government servants, Doctors, Engineering Contractors and businessmen. The club
provides facilities for various indoor games, such as table tennis, carrom, etc., and some of the members play card games of Bridge and Rummy.
The affairs of the Club are conducted in accordance with the Memorandum and Bye-laws framed and registered with the Registrar of Societies. It
his a governing body, headed by a President with an Executive Committee consisting of a Secretary and other office bearers duly elected every
year. By way of sports activities, the club conducts Rummy, Knock Out tournaments. Carrom and ball-badminton tournaments, every year and
prominent citizens of the town are invited for the tournaments and prizes and distributed to the winners. The holding of the tournaments is published
in the newspapers and circulars are also issued to the members of the public. Specific rules and regulations have been framed for conducting the
tournaments, besides maintaining regular sports sheets for recording the scores during the actual games. Such of the members who played cards
used to play only the game Rummy which is not a prohibited game under the Gaming laws of the State. On the night of 28th February, 1981/1st
March, 1981, the petitioners 1 to 9 and some other members of the club were playing Rummy (International) without stakes. They were playing in
two tables and using three packets of cards for each table. While so, the Sub Inspector of Police with 3 or 4 constables came to the club and
asked the members to stop the game. The petitioners and the other members who were present there, explained to the police officials that they
were only playing Rummy and they were not contravening the law in any manner. Furthermore, the certificate of registration, the bye-laws of the
society and the documents showing the holding of annual knock-out tournaments in Rummy were also shown to the police Officers in order to
show that no offence had been committed by the persons present there. Inspite of it, the Sub-Inspector and the policemen told that the petitioners
that they can give their explanation in the police station and brusquely marched the petitioners to the police station. They also seized the six packets
of cards used by the petitioners and all the cash the members had kept in their wallets and another sum of Rs. 3,065, kept in the almirah after
breaking open the lock. After being taken to the police station, the petitioners were placed inside the lock-up. The President of the Club, who is a
leading businessman, requested the police officials to release the arrested members on bail, so that the reputation of the Club and that of the
members could be salvaged to some extent. But this request was turned down and after spending the rest of the night in the lock-up, the petitioners
were allowed to go home only in the morning. The action of the Police officials was highhanded and totally unwarranted by law. As a follow-up to
the illegal arrest of the members of the Club and the Seizure of materials from the Club, the police have registered a case under S. 9 and S. 8 of the
Act. On a prior occasion, the Sub-Inspector of Police had filed a similar case against some of the members of the Club and the case ended in
acquittal. Aggrieved with the acquittal of the members, the Sub-Inspector and his subordinates used to enter the club premises in police Uniform
off and on in order to create an impression in the minds of the general public that the members of the club were indulging in unlawful activities in the
name of playing pastime games. The alleged raid on the night of 28th February, 1981 and the arrest of the members was yet another high handed
action of the police officials. The proceedings are liable to be quashed because playing of rummy is not an offence, as the game of rummy is not a
game of chance. Moreover, the well known distinction between a ''Members ''Club'' and a ''Gaming House'' has been wantonly failed to be
noticed. There is absolutely no material in the case to show that the premises in question was a common gaming house. The mala fides of the
officers can be seen from the fact that the 10th petitioner, who is a watchman of the Club, has been charged under 5.8 of the Act for running a
gaming house. The averments in the first information report that the members were playing ''Mangatha'' or Vettu Cheettu'' and shouting ''Open
card, Close Card'' and continuing the game even after the arrival of the police, are too puerile a story to merit acceptance in any Court. Unless the
police bad sent someone to act as a decoy to find out what was the nature of the cards'' game that was being played, they cannot conclusively
allege that a set of card-players were indulging in playing a game of chance like ''Mangatha'' or ''Vettu Cheettu''. The essential ingredients of Ss. 8
and 9 of the Act have not been alleged. As such, the trial of the case, if it is to take place, will only be an exercise in futility. Hence, the petitioners
should be spared the ordeal of a trial by quashing of the proceedings pending against them in the Court below.
Mr. I. Subramaniam, learned counsel for the petitioners submitted that the prosecution case is, on the face of it, a false one, that it has been filed
with male fide intentions and over and above all these things, the police report does not disclose the commission of any offence. He argued that the
place where the petitioners were found playing cards was the premises of a registered Club and it was not a private individual''s house or a
common gaming house run by anybody. The members of the Club were drawn from respectable sections of society and it is unthinkable that they
would have been playing a cheap and speculative game as ''Mangatha'' or ''Veetu Cheettu'' in the club premises. He pointed out that there is
absolutely no mention in the report about the place being used as a common gaming house as defined in the Act. The fact that a registered Club
was being run in the premises in question cannot be a matter of dispute, but strangely enough, the Sub Inspector had suppressed that fact in the
report and tried to make it appear that the premises belonged to the 10th petitioner, viz., watchman and he was allowing the other petitioners to
use the premises for gambling activities. This, according to the petitioners, clearly shows the mala fide intention of the prosecuting Officer. Yet
another contention put forward is that the Sub Inspector had not obtained a search warrant from the Magistrate even though he had ample time for
it. The Sub Inspector has sent an intimation to the Magistrate at 10:30 p.m. stating that he received information that in the Cosmopolitan Club
gaming is going on throughout the night and that he felt that the delay in receiving search warrant from the Court may allow the gamblers to escape
and therefore, he was proceeding to the spot to raid the Club. Mr. Subramaniam pointed out that if gaming was going on throughout the night, the
Sub Inspector Could as well have taken a search warrant and proceeded to the Club half an hour later, as there was no possibility of the gamblers
who would be playing throughout the night, getting away from the premises before the raid was conducted. The counsel further stated that a few
months earlier, the police authorities had raided the Club and booked a case against some of the members for offences under the Gaming Act, but
that case had ended in acquittal and in order to wreak vengeance on the Club members, this case has been foisted on them, Mr. Subramaniam
therefore prayed that the proceedings pending in the court below may be quashed.
The learned Public Prosecutor opposed the arguments of Mr. Subramaniam and stated that the Sub Inspector of Police had sent advance
intimation to Court and then proceeded to the Club and raided the premises, that he and the mahazar witnesses should have actually seen the
petitioners playing the game of ''Vettu Cheettu'' and that in any event, the merits of the case can be decided only after the prosecution witnesses are
examined and their evidence assessed.
Dealing with the contentions of the petitioners, it has to be first seen whether the charge-sheet contains the ingredients for a prima facie opinion
being formed that a triable offence has been committed by the petitioners. Ss. 8 and 9 of the Act read as follows:
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.
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.
From the above sections, it may be seen that under S. 8, the running of a common gaming house is made punishable and under S. 9, the indulgence
in gaming of a person in a common gaming-house is also made punishable. Such being the case, there must be some material in the report to show
that a common gaming house was being run. The words ''common gaming-house'' have been defined in S. 3 of the Act, as under:
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 profits 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 or 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;
(emphasis supplied).
Before ever a person can be convicted under S. 8 or under S. 9, there must be proof that a common gaming house was being run by someone and
that such place was being made use of for gaming activities. In the instant case, there is absolutely no mention in the report about anybody running
a common gaming house. All that is stated is that the 10th petitioner (watchman) had permitted the other petitioners to play cards'' games inside the
premises. There is absolutely no mention about the 10th petitioner permitting the use of the premises for gaming activities with a view to derive
profit or gain himself.
In a number of cases, it has been held that the running of a common gaming house is a primordial requisite before anyone can be convicted
under Ss. 8 or 9 of the Act. As early as in Santhanam Iyengar v. State, 1959 M.W.N. (Crl.) 43 Ramaswami, J. has pointed out as follows:
Gaming is not an offence per se. It is an offence only when it is carried on in a public place or in a common gaming house as defined in the Public
Gambling Act or its local variants�The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the
ambit of S. 8 nor of S. 12, is not an offence under the Act.
Again in C.R Suhramaniam and others In re, 1966 L.W. (Crl.) 38 (Summary of Recent cases) Natesan, J., has pointed out that:
The cardinal constituent for an offence under Ss. 45 and 46 of the (City Police) Act is that the place used for gaming should be a common gaming
house as defined in the (City Police) Act. Profit or gain to the persons owning, occupying, using or keeping the place, whether by way of a charge
for the instruments of gaming or of the place or otherwise howsoever is a necessary and primary element and when that is not established, there
can be no offence under S. 45 or S. 46 of the Act. . . What is prohibited is not game of cards for stakes, but playing the game in a common
gaming house.
I myself had consider this question in Padmanabhan, etc. v. State Crl.M.P. No. 7185/76 judgment dt. 15th April, 1977 and I have held as
follows:
Having regard to the standing of the Club in the present case and its activities and the strata of society from which its office bearers are drawn, it is
very doubtful if the Club would have been used as a common gaming house. As I have stated at the outlet, the mere playing of cards for stakes will
not make the Club a common gaming house as envisaged under the Gaming Act or the City Police Act. It is rather unfortunate that law enforcing
agencies have still not realised the marked difference between play of games in a Club or house and gaming activities carried on in a common
gaming house. This lack of understanding often leads to harassing prosecutions and needless embarrassments.
Still later, Sathar Sayeed, J., had to consider this question in Arumugham etc. v. State Crl.M.P. No. 4733 of 1977 judgment dt. 17th October,
1978. The learned Judge ordered the quashing of the proceedings against the petitioners in that case and held as follows:
In the charge-sheet filed by the police, I do not find any allegation that the petitioners, who are the members of the Club, were playing for
commercialisation purposes nor there are any such allegations so as to come within the purview of Ss. 8 and 9 of the Gaming Act. There is not
even a whisper in the charge-sheet that the Indian Officers Club is a gaming house or for that matter, any money was collected or that the premises
was used for profit or gain. The charge-sheet taken on its face value, I am of the view, does not some within the purview of Ss-8 and 9 of the
Gaming Act.
In spite of the legal position being well settled, the police authorities, particularly the lower strata of Officers seem to be completely unaware of
the provisions of law. It is not known whether their ignorance of the correct legal position is on account of lack of proper instructions or due to a
wanton attitude to flout the law. On this one ground alone, the proceedings pending before the Court below deserve to be quashed. But something
more has to be said in this case.
The Sub Inspector of Police without obtaining a search warrant from the Magistrate has gone to raid the premises after sending advance
intimation to the Magistrate. In the advance intimation it is stated that gaming activities are going on throughout the night. If so, there was no danger
of the offenders dispersing from the premises before day-break. Such being the case there was no urgency in the matter, and the Sub Inspector
could have very well obtained a search warrant and then proceeded to the premises to make a search of it, and that too, only at 2.A.M.
Secondly, in the advance intimation, the Sub Inspector of Police has stated that he had received reliable information that gaming activities are
going on in the Cosmopolitan Club situate in Shandypet Street, Strangely enough, in the first information report and the charge-sheet, there is no
reference whatever to the premises belonging to the Cosmopolitan Club. In fact, the averments contained would make it appear that the place
belonged to the 10th petitioner, who is the watchman of the Club and that he had permitted the other members to enter the premises and indulge in
gaming activities. There is, therefore, a clear and deliberate suppression in the charge sheet about the existence of the Club in the premises. The
suppression cannot but be considered a wanton one and very likely it had been made with a view to make it appear to the Court that the
petitioners 1 to 9 were found playing a game of chance in someone''s house and not in a Club building.
Thirdly, it is seen that hardly a few month ago, the police authorities of the identical station had raided the Club and arrested some persons and
prosecuted them for having committed offences under the Gaming Act. But that case ended in acquittal. Inspite of it, the police have booked more
members on the very same grounds set out in the earlier case. This would only mean that the present prosecution is a motivated one and the case
should have been filed by the police only with a view to harass the members of the Club once again.
Lastly, the story contained in the charge-sheet that petitioners 1 to 9 were found playing the game of ''Vettu Cheettu'' is too preposterous a
story to merit even superficial acceptance. The Club is a registered Society and its members are said to be drawn from leading sections of the
community in the town. The Club had been conducting tournaments periodically and had been inviting dignitaries and important people to witness
the tournaments and the prize giving ceremonies. The members of such a Club would never therefore have engaged themselves in playing a game
like ''Mangatha'' or ''Vettu Cheettu''. This averment is, on the face of it, a false one and should undoubtedly have been made by the Sub Inspector
with full knowledge of the falsity of the averments. It is deplorable that law) enforcing Officers should resort to such despicable practices with a
view to make their importance felt in the town and with a view to nullify the effect of the verdict of Court in favour of the Club members in an
earlier case. Instances like this if allowed to go unchecked by the superior police Officers will only lead to the public losing confidence in the fair
manner of functioning of the police force and the Courts also finding it difficult to give credence to the statements of police Officers.
For all the aforesaid reasons, the proceedings against the petitioners deserve to be quashed unhesitatingly. There can be no doubt that if the
trail is allowed to take place, the petitioners would be able to expose the hollowness of the prosecution case. But, that is no reason why the
petitioners should be made to undergo the ordeal of a trial, when the charge-sheet appears to have been riled for motivated reasons and when it
does not at all contain the ingredients of the offences complained of. Hence, the petition will stand allowed and the proceedings in C.C. No. 308 of
1981 on the file of the Judicial Second Class Magistrate, Kovilpatti, will stand quashed.