MIYABHAI PIRBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a criminal revision application by 26 persons who were convicted by the 4th Joint Civil Judge (J. D.) and Judicial Magistrate First Class Baroda under sections 4 and 5 of the Bombay Prevention of Gambling Act and whose convictions were confirmed in appeal by the Additional Sessions Judge Baroda.

(2.) In revision it is urged that the prosecution case rested on the evidence of a Panch who had turned hostile of a punter and of the Investigating Police Officer. It is contended that a Panchnama made is inadmissible in evidence and that when the Panch has turned hostile the conviction under sections 4 and 5 of the Prevention of Gambling Act would rest on the evidence of the Police Officer and the punter both of whom are interested witnesses. It is also contended that the alleged finding of the instruments of gaming cannot offer corroboration because the alleged finding is sought to be proved by the evidence of the interested witnesses. It is contended that the corroboration by the finding of the instruments of gaming must be of an independent type and that the evidence of the Police Investigating Officer and the punter regarding the actual gambling cannot be corroborated by their evidence that the instruments of the gaming were found. While contending that a Panchnama in a gambling case is not admissible in evidence it is contended that the gambling case is a cognizable case and that the Panchnama would therefore be hit by sec. 162 of the Cri. Pro. Code.

(3.) The question whether an offence under sections 4 and 5 of the Prevention of Gambling Act is a cognizable offence or not has been canvassed at length. Cognizable offence is defined in section 4(f) of Criminal Procedure Code as follows :-