ANIL KUMAR SIPANI@ANIL SIPANI vs STATE OF ODISHA
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR
CRLMC No.2417 of 2023
An application under Section 482 of the Code of Criminal Procedure.
Anil Kumar Sipani @ Anil Sipani Petitioner
….
-versus-
State of Odisha
…. Opposite Party
Advocates who appeared in this case through Hybrid Mode :
For Petitioner : Mr. D. Panda, Advocate
along with Mr. S. Panda, Advocate
For Opposite Party : Mr. Saroj Kumar Rout, ASC
CORAM:
JUSTICE SAVITRI RATHO
HON’BLE MISS
…………………………………………………………………………
Date of hearing: 22.01.2026 :: Date of Judgment: 14.05.2026
…………………………………………………………………………
Savitri Ratho, J. The CRLMC has been filed challenging the order dated
06.04.2022 passed by the learned Sub-Divisional Judicial Magistrate
(Sadar), (in short, Cuttack in G.R. Case No.1169 of 2019
“SDJM”),
which arises out of Purighat P.S. Case No 139 of 2019 , taking
cognizance of offences under Sections 294-A, 420, 120(B) of the Indian
Penal Code (in short, “ the IPC ” ) read with Section 7(3) of the Lotteries
(Regulation) Act, 1998 (in short, “Lotter ies Act”) against the Petitioner
and co-accused persons.
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2. The Petitioner had earlier filed CRLMC No. 262 of 2022
for quashing the Criminal Proceeding in G.R. Case No.1169 of 2019,
against him. It was permitted to be withdrawn on 08.07.2022, with
liberty to file a better application. CRLMC No. 1991 of 2022 filed
thereafter by the Petitioner for quashing the Criminal Proceeding in
G.R. Case No.1169 of 2019 has been dismissed for non-prosecution on
27.06.2023.
FACT OF THE CASE IN BRIEF
3. On 09.07.2019, at 08:40 P.M., Dillip Kumar Dhal, S.I. of
Purighat Police Station, had accompanied S.I. Abinash Rout of Special
Squad and other staff to Haryana Bhawan, Manikghosh Bazar, to verify
the allegation of illegal betting on results of cricket match. On their
arrival at Haryana Bhawan, some persons who had gathered there and
were participating in the betting, fled from the spot. The police
managed to catch three persons including the Petitioner. On being
asked, they could not produce any license or authority for such betting,
but disclosed their names and also confessed that they were collecting
money from general people with an assurance to return huge amount to
them, by alluring them to place bets in favour of the different teams that
were participating in the Cricket World Cup, 2019. The accused persons
stated that they were distributing cash through different methods after
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the game was over, in order to avoid police action. During personal
search, 2 mobile phones were seized from Amit Kumar Agrawal, 2
mobile phones from Ankit Agrawal and one mobile phone from the
Petitioner. Two monitors and 2 CPUs and one Laptop were seized from
the house of Amit Kumar Agrawal. They have been released
subsequently by the learned SDJM.
IMPUGNED ORDER
4. On 06.04.2022, the learned SDJM has taken cognizance of
the offences under Sections 294-A/ 420/ 120(B) of the I.P.C. and
Section 7(3) of the Lotteries Act observing that materials for the
offences under Sections 294-A/ 420/ 120(B) of the I.P.C. and Section
7(3) of the Lotteries Act is available against the Petitioner. After
completion of the investigation, chargesheet dated 05.02.2022 has been
submitted under Sections 294-A/ 420/ 120(B) of the I.P.C. and Section
7(3) of the Lotteries Act against the Petitioner and two others.
SUBMISSIONS
5. I have heard Mr. D. Panda and Mr. S. Panda, learned
counsel for the Petitioner and Mr. S.K. Rout, learned Additional
Standing Counsel for the State of Odisha. I have gone through the
written note of submission filed by the learned counsel for the
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Petitioner and also perused the case diary produced by the learned State
Counsel.
PETITIONER
6.
Mr. D. Panda and Mr. S. Panda learned counsel for the Petitioner
have submitted that the Petitioner is innocent and he has been falsely
implicated in the case along with the other accused. He has submitted
that :-
i) A perusal of the FIR discloses tampering of the formal FIR after
it was uploaded on the Commissioner of Police’s website. Col. 9
relating to 'Particulars of properties of interest' has been tampered with
and insertions have been made therein in ink which creates suspicion.
These entries / insertions by hand were not there in the formal FIR
uploaded on the website immediately after its. The FIR is shown to be
lodged at 22:00 hrs. on 09.07.2019 but at Column No. 3 (c) thereof the
General Diary Reference is No. 003 dt.10.07.2019 time is at 09:27 hrs.
which makes the date and time of registration of the FIR suspicious as
the G.D. Reference should have been timed just prior to 22:00 hrs. on
09.07.2019 and not at 09:27 hrs. on 10.07.2019. This indicates that the
FIR has been ante timed.
(ii) The seizure lists at Annexure-3 series are timed as at 09:15 pm,
09:20 pm, 09:25 pm & 09:40 pm respectively on 09.07.2019. Although
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seizures were claimed to have been made, before the FIR was lodged
and P.S. case was registered, but surprisingly the P.S. Case has been
mentioned on the top of the seizure list dated 09.07.2019, which
renders the seizures suspicious, doubtful and improbable.
(iii) In the Formal FIR uploaded on the CCTNS portal, seizure of
mobile phones and seizures of Monitors had been mentioned about. But
it had not been mentioned that Monitors, CPUs and Laptop had been
mentioned in the printed format. But in the FIR sent to the Court,
interpolations have been made in ink by hand later, but without any
endorsement of the I.I.C., in the printed copy that was sent to Court. At
col. 9 'Particulars of properties of Interest' in the formal FIR, at Point
No. 3, it has been inserted by hand (2 monitors, 2 CPUs and one
laptop) without their descriptions or their values.
(iv) On the date of incident the World Cup 2019, cricket match was
not played due to rain as stated in the records of investigation and no
record has been seized to establish that Petitioner and other co-accused
had indulged in any lottery and that it is a scheme for distribution of
prizes by lots or chance to those persons participating in the chances of
a prize by purchasing tickets, no material is available to corroborate the
aforesaid allegation except their so called alleged confessions made
before the police. There is also no material to show that any tickets
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were being sold by the petitioner or any tickets purchased by anybody
from the Petitioner.
(vi) The charge-sheet annexed as Annexure-4 to the CRLMC does
not contain names of any witnesses belonging to the locality of the spot
or any participant / investor / purchaser in the alleged betting having
been examined. Manik Ghosh Bazar is a bustling market area being
densely populated and the I.O. having not cited any local witnesses or
any participant to the alleged betting, casts serious doubt as to the truth
of the allegations.
(vii) Section 7(3) Lotteries Act punishes a person who acts either as
agent or promoter or trader in any lottery organized, conducted or
promoted contravening that act or a seller, distributor or purchaser of
the ticket of such lottery. There is total absence of material showing any
organization, conduct or promotion of any lottery by the Petitioner as
well as absence of materials showing that the Petitioner was either a
seller, distributor or purchaser of tickets of such lottery for which
cognizance taken is illegal. No tickets having been found or seized nor
the seized cell-phone of Petitioner containing any material to show any
lottery being organized, conducted or promoted or it's tickets being
sold, distributed or purchased to which Petitioner can be linked, so it
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can be safely concluded that no offence under Section 7(3) of the
Lotteries Act is made out.
(viii) Section 294-A IPC makes punishable keeping of any office or
place for the purpose of drawing a lottery not being a lottery authorized
by the State Government. The materials available on record filed along
with the charge-sheet do not establish prima-facie that the spot house
which is described in the seizure lists at Annexure-3 series to the
CRLMC as being the residential house of Amit Kumar Agrawal @
Chhotu named as 'Haryana Bhawan' was being used by Petitioner as an
office or place for operating any lottery which was not lottery
authorized by the State Government or that he either resided in the spot
house or had taken it on rent or had an office that was in any way
connected with any lottery scheme as defined in the Lotteries Act.
(ix) Section 420 IPC mandates the prosecution to prima-facie show
that there was any inducement by the Petitioner to any person from
whom either any money, property or valuable security was received by
Petitioner to purchase tickets which material is not available in the
charge-sheet for which cognizance thereunder is bad.
(x) Confessions made to a policeman are not admissible as evidence
being hit by Section 25 of the Indian Evidence Act, 1872 and the
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seizure lists at Annexure-3 Series to the CRLMC discloses that the
seizures were made by a policeman.
(xi) Confessions said to have been made before Chargesheet
Witnesses No. 9 & 10, who are chance witnesses have not been stated
by them in the verbatim and being in the nature of extra-judicial
confessions are extremely weak piece of evidence and can only be used
to corroborate other evidence which is 'nil' in this case.
(xii) There is no proof of Petitioner having collected any money from
any person or distributed any tickets or to have lured or induced any
person for the purpose of placing bets to hold him liable for having
committed any offence.
(xiii) The Petitioner has not been charge-sheeted under Section 120-B
IPC, as can be seen from the cognizance order at Annexure-1 to the
CRLMC and so there is no meeting of minds between him and other
co-accused to do anything illegal.
In support of the above submissions, the following decisions
were relied upon :-
(i) State of Haryana v. Bhajanlal : 1992 Supp 1 SCC 335 ,
(ii) R.P. Kapur v. State of Punjab: 1960 SCC OnLine SC 21 and
(iii) Aghnoo Nagesia v. State Of Bihar; 1965 SCC Online SC 109 .
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STATE
7. Mr. Rout, learned Additional Standing Counsel has submitted
that the date of the General Diary Entry mentioned in the FIR is result
of typographical error and should be read as 09.07.2019. He has also
submitted that seizures in the case had been made before the case was
registered and the P.S Case number was mentioned subsequently on the
seizure list and that mere mention of the P.S. Case number on the
seizure lists cannot render the seizures to be illegal. He has also
submitted that the activities of the accused persons were intended to
cheat others for their personal gain by forming criminal conspiracy and
several persons were involved who were collecting money by alluring
the general public through betting. Hence the impugned order taking
cognizance of the offences against the Petitioner and the co -accused
does not call for any interference.
STATUTORY PROVISIONS
8. To decide this case, it would be apposite to extract the
relevant statutory provisions for easy reference:-
Lotteries (Regulation) Act, 1998-
― Section 2(b) “lottery” means a scheme, in whatever form a nd
by whatever name called, for distribution of prizes by lot or
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chance to those persons participating the chances of a prize by
purchasing tickets.
”
Section 7 (3) - If any person acts as an agent or promoter or
“
trader in any lottery organised, conducted or promoted in
contravention of the provisions of this Act or sells, distributes or
purchases the ticket of such lottery, he shall be punishable with
rigorous imprisonment for a term which may extend to two
years or with fine or with both.”
Indian Penal Code
― Section 294A. Keeping lottery office. — Whoever keeps any
office or place for the purpose of drawing any lottery not being a
State lottery or a lottery authorised by the State Government,
shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine, or with both.
And whoever publishes any proposal to pay any sum, or to
deliver any goods, or to do or forbear doing anything for the
benefit of any person, on any event or contingency relative or
applicable to the drawing of any ticket, lot, number or figure in
any such lottery, shall be punished with fine which may extend to
one thousand rupees.”
Section 420 - Cheating and dishonestly inducing delivery of
―
property. —
Whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person, or to make, alter
or destroy the whole or any part of a valuable security, or
anything which is signed or sealed, and which is capable of
being converted into a valuable security, shall be punished with
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imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.”
― Section 120-B - Punishment of criminal conspiracy. —
(1) Whoever is a party to a criminal conspiracy to commit an
offence punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall, where
no express provision is made in this Code for the punishment of
such a conspiracy, be punished in the same manner as if he had
abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine or
with both.”
Indian Evidence Act.
. Confession to police-officer not to be proved No
―Section 25 –
confession made to a police-officer, shall be proved as against a
person accused of any offence. ”
Code of Criminal Procedure
Section 196. Prosecution for offences against the State and
for criminal conspiracy to commit such offence. -
(1) No Court shall take cognizance of
—
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a) any offence punishable under Chapter VI or under section
153A, section 295A or sub-section (1) of section 505 of the
Indian Penal Code (45 of 1860), or
b) a criminal conspiracy to commit such offence, or
c) any such abetment, as is described in section 108A of the
Indian Penal Code (45 of 1860),
except with the previous sanction of the Central Government or
of the State Government.
[(1A ) No Court shall take cognizance of
(a) any offence punishable under section 153B or sub-section
(2) or sub-section (3) of section 505 of the Indian Penal Code,
1860 (45 of 1860), or
b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central Government
or of the State Government or of the District Magistrate.]
(2)
No Court shall take cognizance of the offence of any criminal
conspiracy punishable under section 120-B of the Indian Penal
Code (45 of 1860), other than a criminal conspiracy to commit
[an offence] [Substituted by Act 45 of 1978, Section 16, for "a
Cognisable offence" (w.e.f. 18-12-1978).] punishable with death,
imprisonment for life or rigorous imprisonment for a term of two
years or upwards, unless the State Government or the District
Magistrate has consented in writing to the initiation of the
proceedings : Provided that where the criminal conspiracy is one
to which the provisions of section 195 apply, no such consent
shall be necessary
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(3) The Central Government or the State Government may,
before according sanction 5 [under sub-section (1) or sub-
section (1A) and the District Magistrate may, before according
sanction under sub-section (1A)] and the State Government or
the District Magistrate may, before giving consent under sub-
section (2), order a preliminary investigation by a police officer
not being below the rank of Inspector, in which case such police
officer shall have the powers referred to in sub-section (3) of
section 155 .”
Bharatiya Nagarik Suraksha Sanhita, 2023
― 528. Saving of inherent powers of High Court. Nothing in this
Sanhita shall be deemed to limit or affect the inherent powers of
the High Court to make such orders as may be necessary to give
effect to any order under this Sanhita, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.”
JUDICIAL PRONOUNCEMENTS
9. Apart from the decisions relied on by the learned counsel for
the petitioner, there are some other decisions which are relevant for
deciding this CRLMC, for which they have been referred to.
9.1 In the case of State of Haryana v. Bhajanlal : 1992 Supp 1
SCC 335 , the Court has held as follows:
102. In the backdrop of the interpretation of the various
“
relevant provisions of the Code under Chapter XIV and of the
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principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
have given the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to secure
the ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not 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
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
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no investigation is permitted by a police officer without an order
of a Magistrate as contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power
of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of
rare cases; that the court will not be justified in embarking upon
an enquiry as to the reliability or genuineness or otherwise of
the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its whim or
caprice. (emphasis supplied)
”
CRLMC No. 2417 of 2023 Page 15 of 30
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9.2 In the case of R.P. Kapur v. State of Punjab; 1960 SCC
OnLine SC 21, the Supreme Court has held as follows:
“6. Before dealing with the merits of the appeal it is necessary
to consider the nature and scope of the inherent power of the
High Court under Section 561-A of the Code.The said section
saves the inherent power of the High Court to make such orders
as may be necessary to give effect to any order under this Code
or to prevent abuse of the process of any court or otherwise to
secure the ends of justice. There is no doubt that this inherent
power cannot be exercised in regard to matters specifically
covered by the other provisions of the Code. In the present case
the Magistrate before whom the police report has been filed
under Section 173 of the Code has yet not applied his mind to
the merits of the said report and it may be assumed in favour of
the appellant that his request for the quashing of the
proceedings is not at the present stage covered by any specific
provision of the Code. It is well-established that the inherent
jurisdiction of the High Court can be exercised to quash
proceedings in a proper case either to prevent the abuse of the
process of any court or otherwise to secure the ends of justice.
Ordinarily criminal proceedings instituted against an accused
person must be tried under the provisions of the Code, and the
High Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not possible.
desirable or expedient to lay down any inflexible rule which
would govern the exercise of this inherent jurisdiction. However,
we may indicate some categories of cases where the inherent
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jurisdiction can and should be exercised for quashing the
proceedings. There may be cases where it may be possible for
the High Court to take the view that the institution or
continuance of criminal proceedings against an accused person
may amount to the abuse of the process of the Court or that the
quashing of the impugned proceedings would secure the ends of
justice. If the criminal proceeding in question is in respect of an
offence alleged to have been committed by an accused person
and it manifestly appears that there is a legal bar against the
institution or continuance of the said proceeding the High Court
would be justified in quashing the proceeding on that ground.
Absence of the requisite sanction may, for instance, furnish
cases under this category. Cases may also arise where the
allegations in the first information report or the complaint, even
if they are taken at their face value and accepted in their
entirety, do not constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the first information report to decide
whether the offence alleged is disclosed or not. In such cases it
would be legitimate for the High Court to hold that it would be
manifestly unjust to allow the process of the criminal court to be
issued against the accused person. A third category of cases in
which the inherent jurisdiction of the High Court can be
successfully invoked may also arise. In cases falling under this
category the allegations made against the accused person do
constitute offence alleged but there is either no legal evidence
adduced in support of the case or evidence adduced clearly or
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manifestly fails to prove the charge. In dealing with this class of
cases it is important to bear in mind the distinction between a
case where there is no legal evidence or where there is evidence
which is manifestly and clearly inconsistent with the accusation
made and cases where there is legal evidence which on its
appreciation may or may not support the accusation in question.
In exercising its jurisdiction under Section 561-A the High Court
would not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial
Magistrate, and ordinarily it would not be open to any party to
invoke the High Court's inherent jurisdiction and contend that
on a reasonable appreciation of the evidence the accusation
made against the accused would not be sustained. Broadly
stated that is the nature and scope of the inherent jurisdiction of
the High Court under Section 561-A in the matter of quashing
criminal proceedings, and that is the effect of the judicial
decisions on the point (Vide: In Re: Shripad G. Chandavarkar,
Jagat Chandra Mazumdar v. Queen Empress, Shanker Singh
(Dr) v. State of Punjab, Nripendra Bhusan Ray v. Gobind
Bandhu Majumdar and Ramanathan Chettiyar v. K. Sivarama
Subrahmanya Ayyar .”
(emphasis supplied)
9.3 In the case of Aghnoo Nagesia v. State Of Bihar; 1965 SCC
OnLine SC 109:AIR 1966 SC 119, the Supreme Court has held as
follows;
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. Section 25 of the Evidence Act is one of the provisions of
“9
law dealing with confessions made by an accused. The law
relating to confessions is to be found generally in Sections 24 to
30 of the Evidence Act and Sections 162 and 164 of the Code of
Criminal Procedure, 1898. Sections 17 to 31 of the Evidence
Act are to be found under the heading "Admissions". Confession
is a species of admission, and is dealt with in Sections 24 to 30.
A confession or an admission is evidence against the maker of
it, unless its admissibility is excluded by some provision of law.
Section 24 excludes confessions caused by certain inducements,
threats and promises. Section 25 provides: "No confession made
to a police officer, shall be proved as against a person accused
of an offence". Section 26 prohibits proof against any person of
a confession made by him in the custody of a police officer,
unless it is made in the immediate presence of a Magistrate. The
partial ban imposed by Section 26 relates to a confession made
to a person other than a police officer. Section 26 does not
qualify the absolute ban imposed by Section 25 on confession
made to a police officer. Section 27 is in the form of a proviso,
and partially lifts the ban imposed by Sections 24, 25 and 26. It
provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of
any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved.
Section 162 of the Code of Criminal Procedure forbids the use
of any statement made by any person to a police officer in the
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course of an investigation for any purpose at any enquiry or
trial in respect of the offence under investigation, save as
mentioned in the proviso and in cases falling under sub-section
(2), and it specifically provides that nothing in it shall be
deemed to affect the provisions of Section 27 of the Evidence
Act. The words of Section 162 are wide enough to include a
confession made to a police officer in the course of an
investigation. A statement or confession made in the course of
an investigation may be recorded by a Magistrate under Section
164 of the Code of Criminal Procedure subject to the
safeguards imposed by the section. Thus, except as provided by
Section 27 of the Evidence Act, a confession by an accused to a
police officer is absolutely protected under Section 25 of the
Evidence Act, and if it is made in the course of an investigation,
it is also protected by Section 162 of the Code of Criminal
Procedure, and a confession to any other person made by him
while in the custody of a police officer is protected by Section
26, unless it is made in the immediate presence of a Magistrate.
These provisions seem to proceed upon the view that
confessions made by an accused to a police officer or made by
him while he is in the custody of a police officer are not to be
trusted, and should not be used in evidence against him. They
are based upon grounds of public policy, and the fullest effect
should be given to them.” (emphasis supplied)
9.4 In the case of Bilal Hajar @ Abdul Hameed vs
State Rep. by the Inspector of Police : 2019 (17) SCC 451, the offence
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of criminal conspiracy has been explained succinctly by the Supreme
Court. The relevant paragraphs are extracted below:
A and Section 120B, IPC makes it
“30. Reading of Section 120
clear that an offence of “criminal conspiracy” is a separate and
distinct offence. Therefore, in order to constitute a criminal
conspiracy and to attract its rigor, two factors must be present
in the case on facts: first, involvement of more than one person
and second, an agreement between/among such persons to do
or causing to be done an illegal act or an act which is not
illegal but is done or causing to be done by illegal means
31. The expression “criminal conspiracy” was aptly explained
by this Court in a case reported in Major E.G. Barsay vs. State
of Bombay (1962) 2 SCR 195. Learned Judge Subba Rao (as
His Lordship then was and later became CJI) speaking for the
Bench in his distinctive style of writing said:
“31…….. The gist of the offence is an agreement to break
the law. The parties to such an agreement will be guilty of
criminal conspiracy, though the illegal act agreed to be
done has not been done. So too, it is not an ingredient of
the offence that all the parties should agree to do a single
illegal act. It may comprise the commission of a number of
acts.”
32. Therefore, in order to constitute a conspiracy, meeting of
mind of two or more persons to do an illegal act or an act by
illegal means is a must. In other words, it is sine qua non for
invoking the plea of conspiracy against the accused. However, it
is not necessary that all the conspirators must know each and
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every detail of the conspiracy, which is being hatched and nor it
is necessary to prove their active part/role in such meeting.
33. In other words, their presence and participation in such
meeting alone is sufficient. It is well known that a criminal
conspiracy is always hatched in secrecy and is never an open
affair to anyone much less to public at large.
34. It is for this reason, its existence coupled with the object
for which it was hatched has to be gathered on the basis of
circumstantial evidence, such as conduct of the conspirators,
the chain of circumstances leading to holding of such meeting
till the commission of offence by applying the principle
applicable for appreciating the circumstantial evidence for
holding the accused guilty for commission of an offence. (See
also Baldev Singh vs. State of Punjab [2009 (6) SCC 564].
‖
ANALYSIS AND CONCLUSION
10. Normally while deciding case where the order of cognisance is
challenged, the Court does not peruse the case diary, except for
perusing the statements of the witnesses. In the present case, it became
necessary to peruse the case diary in view of the submissions of the
learned counsel for the petitioner regarding interpolations in the case
diary after the formal FIR had been uploaded in the website .
11. The case diary was also perused to ascertain if any
incriminating materials are available against the petitioner, as the
CRLMC No. 2417 of 2023 Page 22 of 30
//23//
learned State Counsel could not point out anything from the case diary
although he kept reiterating that there are sufficient materials available
against the Petitioner for which the impugned order of cognisance
should not be interfered with.
12. Names of the eleven witnesses have been mentioned in the
chargesheet. Seven of them are Police Officers. One Asish Ballav Das
of Gopal Jew Lane, S. Damodar of Ranihat Sagadiasahi, Jishu Behera
of Upper Telenga Bazar and Prakash Kumar Das of Firingi Bazar are
the other witnesses. One witness belongs to the nearby locality- Firangi
Bazaar. Prakash Kumar Das has stated that he and Jisu Behera
accompanied Sub Inspector Dhal Babu of Purighat Police Station and
his staff to Haryana Bhawan, where the area was surrounded and the
persons taking part in betting fled and police was able to apprehend
three persons. They could not produce any documents in support of
betting and gave their identities and confessed that they take money
from innocent persons and use it for betting on different teams saying
that they will get a huge amount in return. He has also stated about
seizure of the mobile phones and monitors, CPUs and laptop. Statement
of Jisu Behera is to the same effect. Neither of the two witnesses have
stated that they have given money to the accused persons for the
purpose of betting bought tickets or have been cheated by them or have
CRLMC No. 2417 of 2023 Page 23 of 30
//24//
seen anybody else doing so. S. Damodar has stated that on 09.07.2019
at about 8.30 pm, people were gathered outside one house Manik Ghose
Bazaar and he was told by his friend Dipuni that the house belonged to
Amit Kumar Agrawala and he and his associates were asking people to
take part in betting and at that moment they were surrounded by the
Police. Persons taking part in the betting ran away but three persons
were apprehended and they confessed their guilt. He has also stated
about seizure of the mobile phones and monitors, CPUs and laptop.
Dipuni @ Ashish Ballava Das has stated that he knows the petitioner
and accused Amit Kumar Agrawal and they play satta. He and S.
Damodar had gone to Manik Ghose Bazaar and saw a crowd outside
Haryana Bhawan. They found out that Amit Kumar Agarwal and Anil
alongwith their associates were asking people to take part in betting. At
that time, the Sub Inspector of Purighat Police Station and his staff
surrounded the house. Persons taking part in the betting ran away but
three persons were apprehended and they confessed their guilt. He has
also stated about seizure of the mobile phones and monitors, CPUs and
laptop.
13. In Case Diary No. XVIII, on 01.06.2021, with respect to case
filed by the accused in OHRC vide OHRC Case No. 1620 of 2019, it
has been mentioned that while filling up the data in the CCTNS portal,
CRLMC No. 2417 of 2023 Page 24 of 30
//25//
by mistake the Computer Operator could not mention about seizure of
monitor, laptop and CPU. Correction was made in the print outs and
sent to Court and the corrections were made in good faith. This
explanation being too casual and there being no endorsement regarding
these corrections which were made subsequently, is not acceptable.
14 . It has come to the notice of this Court that I.Os are in the
habit of making corrections by hand in the noting in the case diary
which include computer printouts, without any endorsement. In some
cases after the High Court has questioned some noting in the copies of
the case diaries submitted to it for perusal, some I.Os have made
corrections in such entries to cover up their mistakes, as per their own
sweet will without any endorsements or without the permission of the
authority, as if it is their personal property and not an official record.
15
. There is an interesting noting in the Case Diary No. I on
09.07.2019 where after registration of the case and examination of the
complainant Dillip Kumar Dhal, it has been stated that “ the
complainant Dillip Kumar Dhal has already (1) Amit Kumar Agrawal
(29) @ Chhotu S/o Late Purusottamlal Agrawal of Haryana Bhawan,
Manikghosh Bazar (2) Ankit Agarwal (34) @ Luky S/o Sankarlal
Agrawal of D.P.Lane, Bakhrabad, (3) Anil Kumar Sipani (45) S/o Late
Manoharlal Sipani, Plot No. 104, Kailash Bhawan, Haripur all are of
CRLMC No. 2417 of 2023 Page 25 of 30
//26//
PS-Purighat, Dist-Cuttack, in presence of witnesses from possession of
accused persons and prepared seizure list at the spot.
”
This entry does not make any sense. It is apparent that
.
some words are missing after the words “has already”
16. The allegation of the learned counsel for the Petitioner that the
seizure lists have been prepared subsequently after registration of the
case at the Police Station for which the P.S. Case number has been
mentioned in the seizure lists assumes importance when coupled with
his submissions that interpolations have been made in the formal FIR
after it was uploaded.
17. The copy of the General Diary Entry No.003 dated
10.07.2019 at 09:27 hrs. referred to in the case diary is not available in
the case diary, but there is a reference in the FIR to General Diary Entry
No.23 dated 09.07.2019 in the formal “FIR contends” but not in the
written FIR.
18 . In view of the provisions of Section 196 (2) of the Cr.P.C,
the learned Magistrate could not have taken cognisance of the offence
under Section 294-A of the I.P.C. as the offence is not punishable with
rigorous imprisonment for two years or more, in the absence of consent
in writing of the State Government or the District Magistrate. There is
CRLMC No. 2417 of 2023 Page 26 of 30
//27//
no material on record that such consent has been obtained at any time
before the impugned order was passed.
19. But perusal of the impugned order and the chargesheet,
-
reveal that although chargesheet has been submitted under Sections
294-A, 420, 120(B) of the IPC read with Section 7(3) of the Lotteries
Act, commission of offence under Section 120 B of the IPC has not
been alleged against the Petitioner. The sine qua non of the offence
under Section 120 B of the IPC is the prior meeting of minds between
two or more persons, but there is no allegation nor any material
collected during investigation that there was a prior meeting of minds of
the accused persons to commit any of the offences, so as to make out
the offence under Section 120 B of the IPC.
20. The case diary does not reveal that any material was found
to indicate that the petitioner had kept any place or any office for
drawing any lottery or that he had published any proposal to pay any
sum or deliver any goods or did anything or did not do anything for the
benefit of any person or any event or contingency relative or applicable
to the drawing of any ticket, lot, number or figure in any such lottery.
No tickets have been seized. Nor has any witness stated that he had
bought any ticket from the petitioner regarding betting on the result of
the cricket matches. So the necessary ingredients to make out the
CRLMC No. 2417 of 2023 Page 27 of 30
//28//
offence under Section 294 A of the IPC against the petitioner are not
–
available.
21. As regards the offence under Section 420 IPC, there is no
material on record to indicate that the petitioner has committed the
offence of cheating . There is no material that the petitioner has
collected any money from anybody or distributed or sold any tickets or
induced any person to place any bets , let alone done ant or omission
with dishonest intention.
22 . Perusal of the statements of witnesses does not reveal that
any offence under Section 7 (3) of the Lotteries Act has been
committed by the petitioner as there is no acceptable material to
indicate that the Petitioner had organised or acted as an agent or
promoter or sold, distributed or purchased tickets of any lottery. The
gist of the statements are that the accused persons play satta. On the
relevant date the witnesses learnt that they were asking people to place
bets. When the police came, the other persons ran away and the three
accused persons confessed about their guilt before the police. These
allegations do not make out an offence under Section 7(3) of the
Lotteries (Regulation) Act.
23. It has also been stated in the case diary that the I.O. went
CRLMC No. 2417 of 2023 Page 28 of 30
//29//
through the account statements of the accused persons received from
their Banks, but found no clue from them.
24. Perusal of the entries in the WhatsApp chats, reveal that there
are some entries of the following nature, but their incriminating nature
is not explained in the case diary : -
“ Run me 2950 tera
Match me 2500 mera
Final 1490 -tera ”
25. It therefore appears that this case therefore falls within
Paragraphs 102(3) and (6) of the guidelines framed laid down in the
case of Ch. Bhajanlal ( supra) .
26. Therefore, except the confessions of the accused persons, there
is no material to link the Petitioner with the crime or the offences of
which the learned Magistrate has taken cognisance.
27. These confessions cannot form the basis of conviction in
the absence of any corroboration. Hence, I am satisfied that the
petitioner cannot be proceeded on the basis of his confession or that of
the co – accused in view of the bar under Section 25 of the Evidence
Act.
28. In view of the above discussion, as I find that there is no
acceptable material to make out the offences Sections 294-A, 420, of
CRLMC No. 2417 of 2023 Page 29 of 30
//30//
the IPC or Section 7(3) of the Lotteries (Regulation) Act, 1998 against
the petitioner, I am convinced that compelling the petitioner to face trial
would be an exercise in futility and result in abuse of the process of the
Court.
29. Hence in my opinion, this is a fit case for exercise of inherent
power under Section 482 of the Cr.P.C which corresponds to Section
528 of the BNSS, to quash the impugned order so far as it relates to the
petitioner.
30. The CRLMC is accordingly allowed.
………………….
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
th
Dated the 14 May, 2026/Subhalaxmi /RKS
Signature Not Verified
Digitally Signed
Signed by: RANJAN KUMAR SETHI
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-Jun-2026 21:21:02
CRLMC No. 2417 of 2023 Page 30 of 30