STATE OF GUJARAT Vs. MOHAMEDELI ABDULLABHAI PANWALA

JUDGEMENT

(1.) Basing his order on sec. 10 of the Bombay Prevention of Gambling Act the Judicial Magistrate First Class 2 Court Broach passed an order ordering accused No. 4 in a gambling case to be examined as a witness after nearly all the other prosecution witnesses had been examined. For passing his order the learned Judge relied on Rahmankhan v. Emperor A.I.R. 1937 Nagpur 396 and the observations therein that an accused may be taken from the dock and placed in the witness box and returned back to the dock and punished if he fails to satisfy the Court that he is entitled to an indemnity. He also relied on Jwalaprasad and others v. State 1953 Cr. L.J. 985 for his view that an accused may be examined at any stage of the trial as a prosecution Witness. The learned Magistrate also relied on Saikh Moti v. Emperor 14 Cr. L.J. 293. In regard to the ruling in Emperor v. Babilal Balvant 17 Bom. L.R. 1078 the learned Magistrate thought that sec. 10 of the Gambling Act has been amended by Bombay Act XIV of 1959 and the ruling in 17 Bom. L.R. 1078 was therefore not applicable in view of the amendment of sec. 10 of the Gambling Act.

(2.) In his reference the learned Sessions Judge feels that the learned Magistrates view is erroneous. He feels that the position remains substantially the same even alter the amendment of sec. 10 of the Gambling Act by Act No. XIV of 1959.

(3.) Section 5 (2) Criminal Procedure Code reads as follows :