MARUTI SAKRU GOND Vs. EMPEROR

JUDGEMENT

(1.) 1. Seventeen persons were prosecuted by the Station House Officer, Morsi, under Section 13, Public Gambling Act. In the Court of the Magistrate, Second Class, Morsi, two of the accused persons were examined as witnesses. The Magistrate by the judgment dated 15th November 1943, in Criminal Case No. 27 of 1943 acquitted 10 persons and convicted the five applicants and sentenced them to pay fines. The convictions and sentences were upheld by the Additional District Magistrate, Amraoti, on 22nd January 1944, in Criminal Appeal No. 130 of 1943. On 2nd February 1943, a Sub-Inspector of Police raided the house of Maruti of Khed and seized coins from the possession of the several persons present there. He had, however, no warrant under Section 6, Public Gambling Act, from a Magistrate empowering to enter and search the premises. Two questions have been raised in this revision application (i) that the prosecution witnesses 2 and 3 Syed Bismilla and Krishna, were the accused persons and they could not be examined as witnesses in the case and that the conviction based on their evidence was illegal; and (ii) that the place where the gaming was going on was not a public place. Section 3, Public Gambling Act, penalises the owning or keeping of a gaming house. Section 4 penalises gaming in a gaming house. Under Section 5 a police officer may be empowered by a Magistrate to enter and search the premises which are used as a common gaming house. Section 6 allows a presumption to be drawn against a person who is found in a common gaming house. Section empowers a Magistrate to examine an accused person as a witness on certain conditions. Two conditions which must be fulfilled are that the person must be found in a place which has been entered under the provisions of the Act and that he must be brought before a Magistrate as an accused person. The second condition has been fulfilled in the case of Bismilla and Krishna as they were brought before the Magistrate as accused persons, but the first condition is not fulfilled as the entry of the Sub- Inspector in the house was not under any warrant from a Magistrate. As the first condition was not satisfied, these persons could not be examined as witnesses. If a challan had not been filed against, these persons they could have been examined as witnesses though their evidence would have been liable to be challenged. The case against them could have been withdrawn with the permission of the Magistrate and they could have been examined as witnesses. But this was not done.

(2.) IN certain circumstances a pardon may be tendered under Section 337, Criminal P.C, and an accused person may be examined as a witness. Section 337 of the Code had no application to the case. The Magistrate was thus not empowered to tender a pardon to Bismilla and Krishna. As the condition in Section 10, Public Gambling Act, had not been fulfilled these persons could not be examined as witnesses in the case. Their evidence must consequently be ignored. Convictions based on their evidence were illegal. There is a discrepancy as regards the place where the gaming was going on, whether it was going on in the room, verandah or the chabutra of Maruti. The Sub-Inspector has no personal knowledge whether gaming was going on at all. His evidence is based on the information which he received from other persons. The evidence of Sk. Hasan (P.W. 1), Constable No. 214, and of Sk. Husain (p.W. 4), the Hawaldar of Khed, does not prove that the place where the gaming was going on was a public place. The fact that a house adjoins a public road will not make that house a public place: see Moula v. Emperor A.I.R. 1920 Lah. 104. Ramkaranlal v. Emperor A.I.R. 1916 Nag. 15 has no application to the present case. That was not a case under Section 13, Public Gambling Act, and the case is not an authority for the interpretation of the expression "public place" used in Section 13 of the Act. The question was whether a certain well was a public well, and whether conviction under Section 277, Penal Code, could be upheld. Section 13, Public Gambling Act, prohibits gaming in any public street, place or thoroughfare. The word place is used along with public street or thoroughfare. A public place must be interpreted in connexion with a public street and public thoroughfare, with which it is joined. The test whether a place is a public place within the meaning of Section 13 of the Act has been formulated in Vithu v. Emperor (13) 9 N.L.R. 164 with which I respectfully agree. The fact that the gaming was going on a place which was exposed to public view and not shut out does not make the place a public place. The Courts below have not correctly apprehended and applied the law to the case. On proper application of the law to the evidence in the case the conclusion deducible is that the place was a private place and not a public place. The applicants were therefore not liable to be convicted under Section 13, Public Gambling Act. Their convictions and sentences are set aside and the applicants are acquitted. Fines, if realised, be refunded.