JAI PRAKASH Vs. STATE

JUDGEMENT

(1.) This is an application for revision of an order passed by a 1st class Magistrate on 15-4-1959 summoning the applicant to stand trial as an accused. On a warrant issued by Magistrate under Section 5 of the U. P, Public Gambling Act the applicant's house was searched by the Police and he was arrested and some instruments of gaming were seized from the house. After the arrest the police made a report in the general diary mentioning the result of the search. This report in the general diary was treated as the first information report and was investigated by a police officer without any order from a Magistrate. After investigation the investigating officer submitted a report on the prescribed form to a Magistrate for prosecution of the applicant for the offences of Sections 3 and 4 of the Act. The Magistrate took cognizance of the offences on the report and started the applicant's trial. On one of the dates, i. e,, 14-3-1959, the prose- cution witnesses were absent and the public prosecutor conducting the prosecution applied for adjournment. The Magistrate adjourned the case to 6-4-1959, warning that if the witnesses were not produced on that date an order under Section 247, Cri. P. C. would be passed. When the case was taken up on 6-4-1959 no prosecution witness was present and the Magistrate, who happened to be other than the Magistrate who had passed the order dated 14-3-1959, passed the following order:

(2.) Offences of Sees. 3 and 4 of the U. P. Public Gambling Act are not cognizable offences. The police have no power to arrest a person accused of them without a warrant, vide the last entry in Schedule II of Cri. P. C. and Section 5 of the U. P. Public Gambling Act. A police officer can arrest a person accused of these offences only if he has been authorised to do so by a warrant issued by a Magistrate under Section 5 of the U. P. Public Gambling Act; without such a warrant he cannot arrest any person accused of these offences. A police officer has been authorised by Section 13 of the Act to arrest without a warrant any person found gaming in any public street, place or thoroughfare but not a person found gaming in a common gaming house or opening, keeping or using a common gaming house. Even Section 13 of the Madras Gaming Act, which authorises a police officer to arrest without a warrant any person committing any offence punishable by that Act in his view was held by Subba Rao C. J., and Basi Reddy J. in Public Prosecutor v. Ramiah, AIR 1958 Andh Pra 392 to be not a cognizable offence.

(3.) Since the offences of Sections 3 and 4 of the U. P. Public Gambling Act are not cognizable offences the police had no power to investigate them without an order of a Magistrate; see Section 155 Cri. P. C. A Magistrate can take cognizance of an offence on a complaint or on a police report or on information. The police can make a report only after investigation; it follows that if the police cannot investigate a case they cannot make a report in that case. If the police investigate a non-cognizable case without an order of a competent Magistrate and submit a report to a court for taking cognizance of the offence, it would be treated as a complaint case. The investigation not being under the provisions of the Cri. P. C., the report cannot be treated as one within the meaning of Section 190 of the Cri. P. C. It is open to any person to make a complaint of facts constituting an offence, a complaint can be made even by a police officer, There may be nothing illegal in an investigation carried on by a police officer into a non-cognizable offence without an order of a competent Magistrate but a report for prosecution based on the result of such investigation cannot be treated as a report within the meaning of Section 190 and must be treated as merely a complaint of facts constituting the offence. In State of Rajasthan v. Tarachand, AIR 1958 Raj 108, Ranawat and Sharma JJ. held that offences under Sections 3 and 4 of the Rajasthan Gambling Ordinance were not cognizable offences and Section 173 Cri P. C. did not apply to any investigation of them. In the case of Ramiah, AIR 1958 Andh Pra 392 referred to above the learned Judges held that if the police investigated a non-cognizable offence without an order of a Magistrate and submitted a report, it is to be treated as a complaint and not as a report. Similarly in Chidambaram Pillai v. Emperor, ILR 32 Mad 3 it was laid down by Arnold-White C. J. and Miller J. at page 10: