SUBBA RAO Vs. KING

JUDGEMENT

(1.) The petitioners in these two applications have been sentenced to pay fines of Rs. 50 each under Section 4, Gambling Act. According to the charge-sheet, they were found in a room in the quarters occupied by a person named Sanyal in Jamshedpur, where they are employed by the Tatas, with the exception of Tapadia,. who is an employee of the Imperial Bank. At the time of the arrival of the police they were playing cards. They were arrested and were released on bail and appeared before the Magistrate the next morning. On application they were permitted to appear by a pleader. Thereafter, the pleader was examined Under Section 242, and it is recorded that he pleaded guilty, with the result that the petitioners were convicted and fined as above, and the amount of the stake money RS. 34-13-6 which the police had seized was declared forfeited to the Crown. In addition, out of the amount of fine realised from the fines, Rs. 100 was directed to be paid to the police officers as reward.

(2.) The Magistrate's procedure in accepting the plea of guilty, in the circumstances of this case, was entirely wrong. Section 205, Criminal P. C, declares that whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. In Emperor v. Dorabsha Bomanji, 50 Bom. 250 : (A. I. R. (18) 1926 Bom. 218 : 27 Cr. L. J. 440), it was held that, if the accused are permitted to appear by a pleader under this section, the pleader may plead on their behalf. But in this Court it has been held that Section 205 applied only when a summons is issued. In these cases no summons was issued. The decision to which I refer is Abdul Hamid v. Emperor, 2 Pat. 793 : (A. I. R. (11) 1924 Pat. 46 : 24 Cr. L. J. 872). That was a case in which a warrant was issued in the first instance.

(3.) There is also a further objection to the procedure adopted by the Magistrate. Section 242 requires that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted. Section 243 provides that, if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. It is not sufficient for a conviction that the accused should admit the facts which the prosecution allege. Unless the facts alleged amount to an offence the accused cannot be convicted. It is for that reason that Section 242 requires that the particulars of the offence of which he is accused shall be stated to him, and he shall then be called upon to show cause why he should not be convicted. There is no indication in the record of this case that the particulars of the offence were ever explained to the accused, or their pleader. The mistake that has been made in the Courts below appears to be in assuming that gambling is per se an offence under the Gambling Act. That is not so. It is only an offence to gamble in a common gaming house, which has been defined as any house, walled enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, etc. Unless, therefore, Sanyal was keeping the house or room in which the accused were found for the purpose of making a profit for himself out of the gambling, the premises did not constitute a common gaming house. This occurrence appears to be one that ought never to have been brought into Court. It appears that the accused merely met on the Diwali night for a friendly game of cards in the house of one of them. That does not constitute an offence under the Gambling Act. The convictions and sentences are, therefore, set aside. The fines, if paid, will be refunded. G.M.J. Conviction and sentence set aside.