MUNSHI Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Mathura recommending that the convictions and sentences passed upon the accused persons under Section 13 of the U. P. Public gambling Act be set aside.

(2.) IT appears that the case was started by a Magistrate as a summary trial. He examined some witnesses but before he could finish the case he was replaced by another Magistrate. The accused did not demand a 'de novo' trial and the learned Magistrate proceeded to conclude the trial of the case. He examined the defence witnesses and, after considering the notes of evidence recorded by his predecessor, convicted the applicants and sentenced them to fines. No doubt, a Magistrate may under the law, if not objected to by the accused, proceed with a case which has been begun by another Magistrate and take into consideration the notes of evidence recorded by that magistrate. But in a summary trial no record of evidence is maintained. But the Magistrate may, for his own convenience jot down some notes of evidence. Obviously such notes cannot be suitably used by another Magistrate who may subsequently be entrusted with the trial of the case, and in my opinion the conviction by the Magistrate based as it was on the notes of the evidence of witnesses who were examined before his predecessor was not in order.

(3.) ANOTHER point taken by the learned Sessions Judge is that the place was not a public place and that, therefore, the accused could not be convicted under Section 13. Section 13 makes it an offence to game in any public street, place or thoroughfare. In this case, as would appear from the charge sheet submitted by the police, the gaming was taking place in an 'arhar' field on the road side, and it also appears to be so from the notes of evidence recorded by the Magistrate.