Section 294-A IPC: Cognizance Cannot Be Taken Without Prior Written Consent From State Government Or District Magistrate: Orissa High Court

"Compelling the petitioner to face trial would be an exercise in futility and result in abuse of the process of the Court," Orissa High Court, in a significant ruling, held that a Magistrate is barred from taking cognizance of an offence under Section 294-A of the IPC in the absence of prior written consent from the State Government or the District Magistrate as mandated by Section 196(2) of the CrPC.

A single-judge bench of Justice Savitri Ratho observed that where the allegations are supported solely by inadmissible police confessions without any corroborating material, the criminal proceedings are liable to be quashed to prevent the abuse of the process of law.

The case arose from a police raid at 'Haryana Bhawan' in Cuttack during the 2019 Cricket World Cup, where the Petitioner was allegedly found participating in illegal betting. The police claimed the accused were alluring the public to place bets and subsequently filed a chargesheet for offences under Sections 294-A, 420, and 120-B of the IPC, along with Section 7(3) of the Lotteries (Regulation) Act, 1998. The Petitioner challenged the order of the Sub-Divisional Judicial Magistrate (Sadar), Cuttack, which had taken cognizance of these offences.

The primary legal issue before the court was whether the cognizance of an offence under Section 294-A IPC was legally sustainable without the requisite statutory sanction under Section 196(2) CrPC. The court also examined whether a trial could proceed when the prosecution relied entirely on confessions made to police officers, which are hit by the exclusionary rule of the Indian Evidence Act.

Mandatory Requirement of Sanction Under Section 196(2) CrPC

The Court meticulously analyzed Section 196(2) of the CrPC, which stipulates that no Court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B IPC (other than to commit a cognizable offence punishable with death, life imprisonment, or rigorous imprisonment for two years or upwards) unless the State Government or the District Magistrate has consented in writing.

Justice Ratho noted that Section 294-A of the IPC, which pertains to keeping a lottery office, is not punishable with rigorous imprisonment for two years or more. Consequently, the court held that the learned Magistrate could not have legally taken cognizance of the said offence as there was no material on record to suggest that the mandatory written consent had been obtained.

Confessions Before Police Inadmissible Under Section 25 Evidence Act

The bench emphasized the bar contained in Section 25 of the Indian Evidence Act, 1872, which mandates that no confession made to a police officer shall be proved against a person accused of an offence. The Court observed that apart from the alleged confessions made at the time of the raid, there was no independent material to link the Petitioner to the crime.

It was noted that although the police claimed the accused were collecting money for betting, the seizure list did not reflect any collection of cash or tickets. The Court remarked that confessions made to a policeman, or while in custody, are not to be trusted and should not be used as evidence based on grounds of public policy.

"These confessions cannot form the basis of conviction in the absence of any corroboration."

Lack of Ingredients to Constitute Cheating and Conspiracy

Regarding the charge under Section 420 of the IPC, the Court found that there was a total absence of evidence showing any inducement by the Petitioner. The prosecution failed to produce any witness who claimed to have delivered money, property, or valuable security to the Petitioner under a false assurance or deceptive lure.

Similarly, for the charge of criminal conspiracy under Section 120-B IPC, the Court held that the sine qua non is a prior meeting of minds to do an illegal act. The investigation did not reveal any material to establish such an agreement between the accused persons. The Court found that the mere presence of the Petitioner at the spot was insufficient to sustain a charge of conspiracy.

Failure to Meet Threshold of Lotteries (Regulation) Act

The Court further observed that the ingredients of Section 7(3) of the Lotteries (Regulation) Act were not satisfied. There was no material to indicate that the Petitioner was acting as an agent, promoter, or trader of a prohibited lottery. The statements of the witnesses only vaguely suggested that the accused were "playing satta" without any seizure of lottery tickets or distribution records.

The Court noted that while some WhatsApp chats were mentioned in the case diary, their incriminating nature was never explained by the Investigating Officer. The absence of any link between the digital records and a concrete lottery scheme rendered the charges under the special act unsustainable.

Condemnation of Unauthorized Corrections in Police Records

The Court took a stern view of the procedural irregularities found in the case diary and the FIR. It was discovered that hand-written interpolations regarding the seizure of laptops and CPUs were made in the FIR after it was uploaded to the official website, without any endorsement from the Officer-in-Charge.

Justice Ratho observed that Investigating Officers are often in the habit of making corrections by hand in computer printouts as per their "sweet will," treating official records as personal property. The Court held that such "casual" explanations for discrepancies in the General Diary and seizure lists created serious suspicion regarding the genuineness of the prosecution's case.

Exercise of Inherent Power to Prevent Futile Trial

Concluding the analysis, the Court placed reliance on the landmark judgment in State of Haryana v. Bhajanlal, noting that the case fell within the categories where the uncontroverted allegations do not disclose the commission of any offence. The Court held that allowing the trial to continue would be a futile exercise.

The High Court exercised its inherent power under Section 482 CrPC (corresponding to Section 528 of the BNSS) to quash the impugned order of cognizance. The petition was allowed, and the criminal proceedings against the Petitioner were terminated.

Date of Decision: 14 May 2026