EMPEROR Vs. KAITAN DUMING FERNAD

JUDGEMENT

(1.) The petitioners, seven in number, have been convicted by the First Class Magistrate at Karwar, of the offence of gaming in a common gaming house under Section 5 of Bombay Act IV of 1887. The first petitioner has also been convicted of the offence of keeping a common gaming house under Section 4 of the Act. The legality of the conviction is questioned before us on the ground that the Magistrate has erred in applying the provisions of Section 7 of the Act by presuming at the outset the guilt of the petitioner and throwing on them the onus of proving their innocence.

(2.) The facts which have been found by the Magistrate and which are material for the purposes of the ground on which we are asked to quash the convictions, are briefly these:- One Kashinath Laxman, Abkari Sub-Inspector, Karwar, having met the District Magistrate of that place, driving in a dumny on the Kodibag road, informed the said Magistrate that gambling was then going on in the house of Kaitan D. Fernad, petitioner No. 1. The District Magistrate desired Kashinath to go and stand before the house and said that he would himsself be there within a short time. Kashinath was at the same time ordered by the Magistrate to enter the house and arrest the persons gambling at the sight of the District Magistrate's dumny coming towards the spot. Kashinath accordingly went and stood near the house, having in the meantime secured the assistance of one Sawer, an Abkari Constable. Immediately after that the District Magistrate's dumny arrived and a signal was made by the said Magistrate to the two persons to enter the house. They entered and the petitioners were arrested with cards and money. The petitioners tried to effect an escape but the District Magistrate who was standing outside, said "catch hold of them.

(3.) Upon these facts the Magistrate, before whom the petitioners were tried, has held that under Section 7 of the Bombay Act No. IV of 1887 it was for them to prove that they were not guilty of the offences charged.