Allowed

Mathew v. State of Kerala

Kerala HC1 Aug 2023Crl.MC/7311/2015

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings for offences under the Kerala Gaming Act, 1960. The Court held that the search and seizure conducted by police officers failed to comply with Section 5 of the Act. Without valid compliance demonstrating credible belief and recorded reasons, the subsequent presumption and proceedings were invalid.

What did the court decide?

Final report in Crime No.1484 of 2015 and all further proceedings pursuant thereto pending as C.C No.2484 of 2015 are quashed.

Mathew Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2023)

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INTHEHIGHCOURTOFKERALAATERNAKULAM
PRESENT
THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV
TUESDAY,THE1STDAYOFAUGUST2023/10THSRAVANA,1945
CRL.MCNO.7311OF2015

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INCC2484/2015OFJUDICIALMAGISTRATEOFFIRSTCLASS-III,THRISSUR
PETITIONERS/ACCUSEDNOS.1TO12&14TO21:

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1MATHEW
AGED81YEARS
S/O.VARGHESE,CHETTUPUZHAKARANHOUSE,ANCHERYNEHRUNAGAR.
2PREMNAZEER
AGED65YEARS
S/O.MUHAMMED,VIPPINKATTILHOUSE,MANATHALA,CHAVAKKAD.
3BINU
AGED48YEARS
S/O.JOSEPH,PADINJAREKKARAHOUSE,ARAJUTTY,KOTTAYAM.
4RAJESH
AGED43YEARS
S/O.APPU,MUZHUVANPILLYHOUSE,ANCHERY,OLLURVILLAGE.
5SAKKIRIYA
AGED64YEARS
S/O.KOCHUNNY,MUDUMPALHOUSE,NADATHARADESOM.
6LALSAN
AGED69YEARS
S/O.KESAVAN,THOTTATHILHOUSE,UNIVERSITYNAGAR,MANNUTHY.
7HABEM
AGED44YEARS
S/O.ABOOBACKER,REYAMARAKKARAHOUSE,KANDANASSERRY,
ARYANNURVILLAGE.
8ALI
AGED36YEARS
SO.ABDUKADAR,KARUPPAMVEETTILHOUSE,PAVARTY,
VENGIDANGUVILLAGE.
9BABU
AGED45YEARS
S/O.GEORGE,CHUNGATHHOUSE,PULLAZHIDESOMVILLAGE.
10JOHNSON
AGED49YEARS
S/O.PORINCHU,PUDUKADANHOUSE,OLLLURDESOMVILLAGE.
11YOUSUF
AGED59YEARS
S/O.BEERAN,EDAKATTILHOUSE,KOTTURDESOM,PONJAM.

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CRL.MCNO.7311OF2015

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12KABIES
AGED54YEARS
S/O.MERAKANNAN,KOLLANPARAMBILHOUSE,ERATTUPETTA,
KOTTAYAM.

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13 SEBASTIAN

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AGED46YEARS
S/O.KURIYAPPEN,KANDUKULANGARAHOUSE,KALATHODE,
OLLUKKARAVILLAGE.

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14 NAZAR

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AGED51YEARS
S/O.MUHAMMED,KALATHILHOUSE,KARUVAPEDANNA,
VELLANGALLURVILLAGE.

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15 SHAJI

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AGED46YEARS

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S/O.SHEKARAN,MARAKATHHOUSE,THURTHIKKAD,PORKULAM,
KUNNAMKULAM.

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16 SIROJAN

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AGED 45 YEARS S/O.ANTHONY, PEDIKATH HOUSE, NEMANIKKARA DESOM VILLAGE.

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17 MUHAMMED AKBAR

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AGED45YEARS

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S/O.KUNJU,RAYMARAKKARHOUSE,THAIKKADDESOM,GURUVAYOOR
VILLAGE.

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18 SABU

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AGED46YEARS
S/O.GEORGE,BRAMAKULAMHOUSE,NEARKARTHIYANITEMPLE,
AYYANTHOLEVILLAGE.

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19JAYAKUMAR
AGED45YEARS
S/O.RAMAKRISHNAN,KURULIHOUSE,NEDUPUZHA,
KANIMANGALAMVILLAGE.

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20 KANAKARAJ

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AGED46YEARS
S/O.RAMAN,KUNNATHULLYHOUSE,MANALURDESOM,VILLAGE.

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BYADVS.

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SRI.P.VIJAYABHANU(SR.)
NIKITAJ.MENDEZ
SRI.M.REVIKRISHNAN
SRUTHYN.BHAT(K/000579/2017)

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CRL.MCNO.7311OF2015

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RESPONDENT/COMPLAINANT:

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STATEOFKERALA
REPRESENTEDBYPUBLICPROSECUTOR,
HIGHCOURTOFKERALA,ERNAKULAM.
SRI.VIPINNARAYAN,SR.PP
THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON
01.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING:

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CRL.MCNO.7311OF2015

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ORDER

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The petitioners herein are accused Nos.1 to 12 and 14 to 21 in C.C No.2484 of 2015 on the file of the Judicial Magistrate of First Class – III, Thrissur. In the aforesaid case, they are accused of having committed the offences punishable under Sections 7 and 8 of the Kerala Gaming Act 1960.

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The prosecution allegation is that on 15.8.2015, with the knowledge of the 1st accused, who is the President of Regency Club situated at Ollur village, accused Nos.2 to 11 were found indulging in a game of cards around a table in a room classified as one for ‘members only’ in the club. Accused Nos.12 to 21 were also found indulging in a game of cards on another table in the same room.

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Miss. Sruthy N. Bhat, the learned counsel appearing for the petitioners, submitted that the registration of the crime against the petitioners cannot be sustained under law in view of the law laid down by this Court in Kunhikannan and Ors. v. Asst. Sub Inspector of Police¹ , Danykutty v. State of Kerala² , Sunil and Ors. v. State of Kerala³ and that of a Division Bench of this Court in

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Sugathan v. State of Kerala and others [2018 (4) KHC 45].

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I have heard the learned Public Prosecutor.

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Section 5 of the Kerala Gaming Act, 1960, confers power to enter and

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search. The said provision reads thus:

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1 [1985 KLT 484]

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2 [1999 (3) KLT 930]

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3 [2014 (1) KHC 469]

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CRL.MCNO.7311OF2015

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If a Magistrate or any Police Officer not below the rank of a Sub Inspector of Police upon credible information and after such inquiry as he may think necessary, has reason to believe that any place is used as a common gaming house, he may-

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(a) after recording his reasons for such belief, either himself enter or by his warrant authorise any officer of police not below the rank of a Head Constable to enter, with such assistance as may be found necessary, by night or by day, and by force, if necessary, any such place;

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(b) either himself take into custody or authorise such officer to take into custody all persons whom he or such officer finds therein whether then actually gaming or reasonably suspected to have been present for purposes of gaming;

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(c) seize or authorise such officer to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming, which are found therein;

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(d) search or authorise such officer to search all parts of such place, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein and also the person of those whom he or such officer so takes into custody; and

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(e) seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search.

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In Sugathan (supra), this Court has held that the purpose of Section 5 of the Act is to ensure that before a Police Officer or a Magistrate proceeds to enter into premises for the purpose of conducting a search, the concerned Magistrate or the Police Officer should have reason to believe that any place is used as a 'common gaming house' and further, he has to record his reasons for such belief before making an entry into such place. Therefore in order to conduct

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CRL.MCNO.7311OF2015

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a proper search within the meaning of Section 5 of the Act, two preconditions are to be satisfied.

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His reason to believe that said place is used as a 'common gaming house'

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and;

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He has to record his reasons to entertain such a belief.

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This Court had held that the legislature has enacted the provision to ensure that the action of the officer by whom the search is conducted is based on credible information and that sufficient inquiry as is necessary was made with a view to satisfying themselves regarding the correctness of their beliefs. The same should also be recorded. If there is no material to indicate that Section 5 of the Act has not been complied with and the seizure report does not contain any material to indicate that the requirement of Section 5 of the Act has been complied with, the exercise of power under Section 5 of the Act will become invalid. It was further held that the presumption under Section 6 of the Act could arise only if Section 5 of the Act has been complied with in its letter and spirit. If there is no material to show that the provisions have been complied with in its letter and spirit, the search and seizure will become illegal.

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In the case on hand, there is no material to substantiate that the place of occurrence is a common gaming house. Furthermore, the officer who conducted the search and seizure has not complied with Section 5 of the Act in its letter and spirit as outlined by this Court in the decisions above.

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In that view of the matter, the petitioners are entitled to succeed. This petition will stand allowed. Annexure-B final report in Crime No.1484 of 2015 of

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CRL.MCNO.7311OF2015

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the Ollur Police Station and all further proceedings pursuant thereto against the petitioners now pending as C.C No.2484 of 2015 on the file of the Judicial

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Magistrate of First Class – III, Thrissur, are quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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Sru

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CRL.MCNO.7311OF2015

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APPENDIX OF CRL.MC 7311/2015

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PETITIONERSANNEXURES

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ANNEXURE-ATRUECOPYOFTHEF.I.RINCRIMENO.1484/2015OF
OLLURPOLICESTATIONTHRISSURCITYREGISTERED
INTHECASE.
ANNEXURE-BTRUECOPYOFTHEFINALREPORTLAIDINTHECASE
AFTERINVESTIGATIONBYTHEPOLICENOWPENDING
ASC.C.NO.2484OF2015ONTHEFILESOFTHE
COURTOFTHEJUDICIALMAGISTRATEOFTHEFIRST
CLASS-III,THRISSUR.

Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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