S.13A Public Gambling Act Non-Cognizable Offence, Raid Conducted Without Magistrate's Permission Sufficient Ground To Quash Case: Punjab & Haryana HC

The Bench of Justice Aman Chaudhary observed,

"The reply of the State does not disclose that there was an order passed by the Magistrate to investigate the non-cognizable offence as required under Sub Section 2 of Section 155 Cr.P.C. The procedural infirmity in this case goes to the root of the matter, vitiating the proceedings thus initiated."

The court was dealing with a case where the Police raided petitioner's house and recovered Rs.1,23,50,000/- along with laptop and mobile phone after receiving secret information about the petitioner's involvement in gambling.

Consequently, an FIR under Section 13-A of the Public Gambling Act, 1867 was registered and later, a charge-sheet was filed.

Petitioner's application for discharge was also dismissed by the trial Court on the ground that at the time of framing of the charges only prima facie case was to be seen.

The High Court noted that the investigation in a non-cognizable offence by the police without permission of the competent Magistrate is impermissible.

Court further noted that the police officer concerned was not authorised to enter by way of issuance of a warrant and search the house of the petitioner as per Section 5 of the Act. This procedural infirmity vitiates the proceedings thus initiated.

Adverting to the facts of the case in hand, indubitably it has not been brought out by the State that the police officer concerned was authorised to enter by way of issuance of a warrant and search the house of the petitioner, which is mandated as per Section 5 of the Act, a pre-requisite for which is that, upon receipt of credible information, the officer invested with power of Magistrate or District Superintendent of Police after conducting enquiry may either himself or by warrant authorise any other police officer to enter and search the place.

Furthermore, there is no specific reply by the State justifying the competence of the police officer.

The paras of the present petition particularly 5A to 5M wherein grounds have been raised to substantiate that the FIR was a clear abuse of process of law have not been specifically responded to except for stating "that the position has already been explained in the forgoing paragraphs", which have been reproduced hereinabove in this judgment, which also merely make a reference to the alleged recovery, investigation and confessional statement but nothing justifying either the competence of the officer or the registration of FIR in a non-cognizable offence or that the raid was conducted in pursuance of an order of the concerned Magistrate, passed after due enquiry on having received credible information.

As far as the classification between cognizable and non-cognizable offences as per Schedule 2 of Cr.P.C. is considered, the court noted that the same is that the lesser offence requires stronger scrutiny by the Magistrate.

According, the court concluded that the trial Court has committed grave error in proceeding to frame charges based on final report since the investigation could have been done only after complying with the provisions of law, as contemplated.

As sequel thereto, the present petition was allowed by the court.