W.P. (Cr.) No.142 of 2015 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 142 of 2015 Dwarika Prasad Sah, son of Gauri Shankar Sah, resident of Kasim Bazar, P.O. & P.S.-Rajmahal, Dist.-Sahebganj .... Petitioner Versus 1. The State of Jharkhand 2. Chandan Kumar, Officer Incharge, Rajmahal Police Station, Rajmahal, P.O.-Rajmahal, Dist.-Sahebganj …. Respondents P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner : Mr. Gautam Kumar, Advocate : Mr. Abhinav Raj, Advocate : Mr. Ashutosh Kr. Sinha, Advocate : Ms. Puspanjali Kumari, Advocate For the State : Mrs. Priya Shrestha, Spl. P.P. ….. By the Court:- 1. Heard the parties. 2. This Writ Petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to quash the FIR being Rajmahal P.S. Case No. 54 of 2015 corresponding to G.R. No. 107 of 2015 registered for the offences punishable under Sections 420, 467, 468, 471, 120B and 294A of Indian Penal Code and under Section 7 (ii) of Lotteries (Regulation) Act, 1998. 3. The allegation against the petitioner is that the petitioner was acting as an agent, promoter and trader of Nagaland State lottery W.P. (Cr.) No.142 of 2015 2 tickets and was selling the same to innocent persons. 200 unsold lottery tickets and cash, being the sale proceeds of the of sold lottery tickets were seized by police. 4. On the basis of the written report submitted by the Sub- Inspector of Police of Rajmahal police station, Rajmahal P.S. Case No. 54 of 2015 was registered and police took up investigation of the case. Though it has not been mentioned in the writ petition but it is submitted by the learned counsel for the petitioner that in the meanwhile, the investigation of the case is over and charge sheet has already been submitted against the petitioner for all the offences in respect of which the FIR was instituted and cognizance of the offence has already been taken of the said offences; vide order dated 22.04.2015. It is next submitted by the learned counsel for the petitioner that neither the charge sheet nor the order taking cognizance is challenged in this writ petition. 5. It is submitted by the learned counsel for the petitioner, that there is no law/legislation by the Government of Jharkhand till date, restricting sell of lottery tickets and in view of the same the petitioner is entitled to carry on the business of lottery tickets the draw of which is made by Central Government or of other State Governments. It is next submitted by the learned counsel for the petitioner that the petitioner is a poor person and selling of lottery tickets is source of his livelihood, therefore, the business of the petitioner could not be interfered with. Hence, it is submitted that the prayer as made in this writ petition be allowed. W.P. (Cr.) No.142 of 2015 3 6. Learned Special Public Prosecutor appearing for the State on the other hand vehemently opposes the prayer and submits that Section 3 of the Lotteries (Regulation) Act, 1998 which reads as under:- “3. Prohibition of lotteries.—Save as otherwise provided in Section 4, no State Government shall organise, conduct or promote any lottery.” prohibits the State Government from organizing, conducting or promoting any lottery save as otherwise provided in Section 4 of the Lotteries (Regulation) Act, 1998 which reads as under:- 4. Conditions subject to which lotteries may be organised, etc.—A State Government may organise, conduct or promote a lottery, subject to the following conditions, namely :— (a) prizes shall not be offered on any pre-announced number or on the basis of a single digit; (b) the State Government shall print the lottery tickets bearing the imprint and logo of the State in such manner that the authenticity of the lottery ticket is ensured; (c) the State Government shall sell the tickets either itself or through distributors or selling agents; (d) the proceeds of the sale of lottery tickets shall be credited into the public account of the State; (e) the State Government itself shall conduct the draws of all the lotteries; (f) the prize money unclaimed within such time as may be prescribed by the State Government or not otherwise distributed, shall become the property of that Government; (g) the place of draw shall be located within the State concerned; (h) no lottery shall have more than one draw in a week; (i) the draws of all kinds of lotteries shall be conducted between such period of the day as may be prescribed by the State Government; (j) the number of bumper draws of a lottery shall not be more than six in a calendar year; W.P. (Cr.) No.142 of 2015 4 (k) such other conditions as may be prescribed by the Central Government.” 7. It is next submitted by learned Special Public Prosecutor that Section 4 (c) of the Lotteries (Regulation) Act, 1998 mandates that State Government is duty bound to sell lottery tickets either itself or through its distributors or selling agents; that means no one else, other than the State Government or its distributors or selling agents, can sell any lottery tickets. It is further submitted by learned Special Public Prosecutor that Section 4 (d) of the Lotteries (Regulation) Act, 1998 mandates that proceeds of sell of lottery tickets shall be credited into the public account of the State. It is then submitted by learned Special Public Prosecutor that the petitioner could not produce any documents to show that lottery tickets which was seized from him, either belong to any lottery organized by the Nagaland State Government nor the petitioner could produce any documents to show that the petitioner is either the Government of Nagaland or its distributors or selling agents for the sale of lottery tickets. As the petitioner was acting as an agent, promoter and trader of such lottery even assuming for the sake of argument though not admitting, that the lottery tickets seized were genuine, still the same being in violation of Section 4 (c) read with Section 3 of Lotteries (Regulation) Act, 1998, the petitioner has certainly committed the offence punishable under Section 7 (3) of the Lotteries (Regulation) Act, 1998. It is then submitted by learned Special Public Prosecutor that besides the above, the allegation against the petitioner is that the lottery W.P. (Cr.) No.142 of 2015 5 tickets which the petitioner represented to be the lottery tickets issued by the State Government of Nagaland, in fact were forged lottery tickets and they were not the genuine lottery tickets of Nagaland State Government; so the offences punishable under Sections 467, 468 and 471 of Indian Penal Code are also made out. 8. It is then submitted that as the petitioner was inducing the innocent gullible purchasers of the lottery tickets by cheating them by fraudulently making them believe that the lottery tickets were genuine tickets, the names of whom have been mentioned in the FIR itself, to part with money, so the offence punishable under Section 420 of Indian Penal Code is also made out against the petitioner. It is then submitted by learned Special Public Prosecutor that the petitioner was not alone and he in criminal conspiracy with the other co-accused persons were committing the said offences. It is also submitted by learned Special Public Prosecutor that the petitioner was keeping a place for a purpose of drawing a lottery by feigning that in fact, the lottery is a lottery authorized by the State Government of Nagaland, hence, the offence punishable under Section 294A of Indian Penal Code is made out. It is then submitted by learned Special Public Prosecutor that as undisputedly, charge sheet has been submitted and order of taking cognizance has been passed by the learned S.D.J.M., Rajmahal and as quashing of entire criminal proceeding; as prayed for in this writ , will in effect amount to quashing of the order taking cognizance which is not permissible in law in exercise of the power under Article 226 of the Constitution of W.P. (Cr.) No.142 of 2015 6 India, as the same is an order passed by a court of law hence, otherwise also, the prayer as prayed for is not permissible in law. It is lastly submitted that this writ petition being without any merit be dismissed. 9. Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to refer to Section 7 (3) of Lotteries (Regulation) Act, 1998 which reads as under:- “7. Penality- Xxxxx xxxxxxx xxxxxx xxxxxx (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.” (Emphasis supplied) 10. A plain reading of Section 7 (3) of the Lotteries (Regulation) Act, 1998 makes it abundantly clear that the same provides for punishment of any person who acts as an agent or promoter or trader in any lottery organized, conducted or promoted in contravention to the provisions of Lotteries (Regulation) Act, 1998. As submitted by the learned Special Public Prosecutor that there is direct and specific allegation against the petitioner that the petitioner was acting as an agent, promoter and trader of Nagaland State Lottery; even though he was neither any State Government nor distributor or the selling agent of the Nagaland State Government and as in this writ petition, the petitioner has also not contended that the petitioner is either the distributor or W.P. (Cr.) No.142 of 2015 7 selling agent of the Nagaland State Government; so in view of the submissions made by the learned Special Public Prosecutor, this Court has no hesitation in holding that even if the allegation made against the petitioner are considered to be true in its entirety, still, the petitioner having acted as an agent, promoter and trader of lottery organized in contravention of the provision of Section 3 read with Section 4 (c) of Lotteries (Regulation) Act, 1998, as already discussed above in the foregoing paragraphs of this judgement, the offence punishable under Section 7 (3) of the Lotteries (Regulation) Act, 1998 is made out against the petitioner. 11. The petitioner has not raised any objection regarding the offence punishable under Sections 420, 467, 468, 471 and 294 A of the Indian Penal Code. 12. So far as the contention of the learned Special Public Prosecutor about quashing of the entire criminal proceeding will amount by default quashing of the order dated 22.04.2015 passed by the learned S.D.J.M., Rajamahal in G.R. Case No. 107 of 2015 in exercise of the power under Article 226 of the Constitution of India is concerned, the Full Bench of Hon’ble Patna High Court in the case of Ramesh Kumar Ravi @ Ram Prasad & Etc. vs. State of Bihar & Ors. reported in 1987 SCC OnLine Pat 83, answered the question “Whether the judicial orders of a criminal court (stricto sensu) under the Code of Criminal Procedure, are amenable to quashing by a writ of certiorari?” by observing thus in paragraph no.36:- “36. In the light of the foregoing discussions the answer to the question No. (iv) posed at the very outset is W.P. (Cr.) No.142 of 2015 8 rendered in the negative and it is held that the judicial orders of a criminal court stricto sensu under the Code of Criminal Procedure are not amenable to quashing by a writ of certiorari.” 13. This settled principle of law has been reiterated by the Hon’ble Supreme Court of India albeit in response to an order passed by a civil court in the case of Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde & Ors. reported in 2024 SCC OnLine SC 3722, relying upon its judgment in the case of Radhey Shyam & Anr. v. Chhabi Nath & Ors. reported in (2015) 5 SCC 423 rendered by a three Judge Bench, paragraph no.25 of which is quoted in paragraph no.14 of the judgment of Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde & Ors. (supra) which reads as under:- “14. In view of such binding decision, the inescapable conclusion presenting itself is that the appellate order under challenge before the High Court was rendered by a civil court, and it is trite that orders passed by a civil court cannot be challenged in a writ petition under Article 226 of the Constitution. This point in law has been decisively reiterated in the 3-Judge Bench decision in Radhey Shyam v. Chhabi Nath4. This Court, while holding that an order of the civil court could only be challenged under Article 227 of the Constitution, and not Article 226 thereof, ruled that: “25.***All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs W.P. (Cr.) No.142 of 2015 9 to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression “inferior court” is not referable to the judicial courts, as rightly observed in the referring order [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted above. *** 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” 14. So in view of the settled principle of law, this Court finds force in the submission of the learned Special Public Prosecutor that as the petitioner knowing pretty well that charge sheet has been submitted and cognizance has been taken for the offences in respect of which the FIR was registered, after finding the allegation made in the FIR having not challenged the said order dated 22.04.2015 passed by the learned S.D.J.M., Rajmahal in G.R. Case No. 107 of 2015, the power of this Court cannot be exercised W.P. (Cr.) No.142 of 2015 10 invoking the jurisdiction of Article 226 of the Constitution of India and a writ of certiorari cannot be issued for quashing the entire criminal proceeding in this case; as quashing of the entire criminal proceeding, in this case, in default will amount to quashing the order dated 22.04.2015 in G.R. Case No. 107 of 2015. Therefore, this Court is also of the considered view that on this ground also, this writ petition must fail. 15. Accordingly, this writ petition being without any merit is dismissed. 16. The interim relief granted earlier vide order dated 24.08.2020 is vacated. 17. Registry is directed to intimate the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th January, 2025 AFR/Sonu-Gunjan/-