T.N.R. Tirumalpad, J.C.
1. The S.D.M., Imphal East, Manipur, convicted 10 persons under Section 4 of the Public Gambling Act in G. R. Case No. 412 of 1959 and sentenced each of them to pay a fine of Rs. 50/-. Six of the convicted persons applied in revision to the Sessions Judge. The Sessions Judge has referred the matter to this Court under Section 438, Cri.P.C. with a recommendation in the conviction of the petitioners before him should be set aside.
2. The facts are as follows:
On 10.6.1959, the Inspector-General of Police issued a search warrant-Ext. A/4 under Section 5 of the Public Gambling Act to the Officer in Charge, Imphal Police Station, authorising and requiring him to search the house of Shri A. Manikchand Singh, Jailor, Imphal Jail stating that information has been laid before him and on due enquiry he has been led to believe that the said house was used as a place of gambling liable to be charged under Section 3 of the Gambling Act.
On 11.6.1959, the Deputy Superintendent of Police, Manipur, made an endorsement on the back of the same search warrant-Ext. A/4, directing one Satyabrata Singh, who was not the O/C in charge of Imphal Police Station to execute the warrant. The same night at about 11.15 p.m. the said Satyabrata Singh, S.I. with a Police Party raided the Government quarters inside the Jail compound occupied by Manikchand Singh and seized some playing cards and also some money from some persons present there, under seizure lists-Exts. A/2 and A/3. A case was started against Manikchand Singh under Section 3 of the Public Gambling Act and against Manikchand Singh and 9 others under Section 4 of the said Act.
3. The learned Magistrate found that the search warrant-Ext. A/4 was defective as it did not state that the house to he searched was a common gaming house as defined in Section 1 of the Public Gambling Act and secondly as the said warrant was executed not by the Officer in charge of the Imphal Police Station as directed by the Inspector-General of Police, but by another Officer Satyabrata Singh as directed by the Deputy Superintendent of Police, who had no authority under Section 5 to issue such a search warrant. But curiously enough, the Magistrate held that the prosecution would not fail due to this defect in the warrant. He said that as the requirement of Section 5 of the Public Gambling Act was not satisfactorily fulfilled, the presumption under Section 6 of the Act that the house was a common gaming house and that the persons found therein were present for the purpose of gaming would not be available to the prosecution and that the prosecution had to prove the same by specific evidence.
The Magistrate then went on to discuss the prosecution evidence and held that the prosecution had failed to prove that the house was a common gaming house. But he held that the prosecution had proved that the 10 persons found in the place at the time of the search were gambling in the house. He therefore acquitted Shri A. Manikchand Singh of the offence under Section 3 of the Act, but convicted all the 10 persons under Section 4 of the Act.
4. The learned Sessions Judge has now stated In his order of reference that what Section 4 has made punishable was gaming in a common gaming house and that in view of the finding of the Magistrate, that the house was not a common gaming house, he ought to have acquitted the persons found In the place and that the conviction was bad in law.
5. I entirely agree with the learned Sessions Judge. The Public Gambling Act makes punishable gaming in a common gamming house by Section 4 of the Act and gaming in public places, public street, or thoroughfare by Section 13 of the Act. Gaming in any other place including a private house will not be an offence under the Public Gambling Act.
Thus, when the Magistrate found that the house, of Manikchand Singh was not a common gaming house, it was his duty to have acquitted the persons' who were said to have been found gaming in that place. On that one ground alone the conviction and sentence of not only the six petitioners before the Sessions Judge, but of all of the 10 persons who were convicted by the Magistrate under Section 4 of the Act have to be set aside. Since this Court is exercising its power under Section 439, Cri. P.C. and has perused all the records connected, it has to exercise its revisional power not only in favour of. the petitioners who have moved the Court, but against (sic) all the convicted persons when it is found that the entire conviction was wrong.
6. The conviction and sentences of all the accused persons in G.R. Case No. 412 of 1959 are therefore set aside.
7. I find that the learned Magistrate has gone further in the case and rewarded Satyabrata Singh, S.I. and Y. Birendra Singh, O/C Imphal Police Station for their good and careful handling of the case. This was an absurd order on the part of the Magistrate. Evidently, the Magistrate was acting under Section 16 of the Public Gambling Act. Under Section 16 of the Public Gambling Act, it is only an informer who can be rewarded by directing a portion of the fine levied under Sections 3 and 4 of the Act to be paid to him. Section 16 will not authorise a Magistrate to reward a Police Officer for good and careful handling of a case before him. Magistrates should be careful in passing such orders.
8. Before I part with this case, it is necessary for me to refer to a very objectionable feature which I have noticed in this case. The then I.G.P. Mr. Gopal Singh caused the search warrant to be issued under Section 5 of the Public Gambling Act for this search of the house of Shri A. Manikchand Singh, Jailor of the Manipur Jail on the ground that he had information that the house of the said Manikchand Singh a public servant was used as a place of gambling. In the search warrant Ext. A/4, the house was not described. Nor was it stated that the house was used as a common gaming house. Both Were absolutely necessary in a search warrant under Section 5.
9. The power of search given under Section 5, if exercised, creates the presumption under Section 6 that the house searched is a common gaming house and that the persons found in the house were present there for the purpose of gaming. Such a power should not be lightly exercised, Hence Section 5 has vested the power in very responsible Officers, so that it should not be improperly used or abused.
10. Mr. Gopal Singh knew that he was directing the search of the Government quarters occupied by a public servant on the ground that the said public servant was using the quarters as a common gaming house. It was a very, very serious charge to be made against a public servant. It was therefore the duty of Mr. Gopal Singh to have realised the seriousness of the action which he was directing against the public servant concerned. He should not initiate such action light-heartedly. It was his duty to have satisfied himself and to have stated in the search warrant that he had information that the said quarters were being used by the public servant as a common gaming house within the meaning of Section 1 of the Public Gambling Act. But he failed to do this. He did not state in the search warrant that he had information that the quarters were being used as a common gaming, house. Instead he stated that the house of Manikchand was being used as a place of Gambling. This is not in accordance with Section 5.
11. The Public Gambling Act does not make gambling in a private house illegal. In order to make a place a common gaming house, the person owning, occupying, using or keeping the place must be keeping or using instruments of gaming in the place for his profit or gain. Thus, before issuing, a search warrant under Section 5, the I.G.P. must have had reliable information that A. Manikchand Singh, the public servant concerned was using of keeping instruments of gaming in the Government quarters in his occupation for his profit Or gain. It was not enough therefore to say, particularly when the person concerned was a public servant and the house concerned was Government quarter in his occupation, that the house was being used as a place of gambling. It is clear that the-search warrant was issued in this case by the I.G.P. without realising the responsibility of his action against the public servant and without understanding the provisions of law. He did not, as I said, describe the house where the search was to be conducted and simply stated that it was the house of A. Manikchand Singh. This may mean the private house of the person concerned. No description of the house to be searched was given in the warrant. But what the I.G.P. meant, as seen from the search which followed, was that the Government-quarters inside the Jail compound given for the residence of the Jailor was to be searched. If that was the intention, then it ought to have been made clear in the search warrant itself. The provision in Section 5 should be strictly complied with.
12. It is my duty to mention that the I.G.P. Mr. Gopal Singh has issued the search warrant against a public servant to search the Government quarters occupied by him as such public servant is a light-hearted manner without understanding or realising the seriousness of his action and without knowing the scope and extent of his powers and duties under Section 5 of the Public Gambling Act. Such conduct has to be condemned.
13. Actually, it was not the search warrant issued by the I.G.P. which was executed. Nor was it executed by the Officer to whom it was directed. The actual search warrant issued was the one endorsed by the Deputy Superintendent of police Sri Kaminibidhu Singh to the S.I. Satyabrata Singh. The Deputy Superintendent had no authority under Section 5 of the Public Gambling Act to issue or to endorse such a search warrant. It is a pity that the Police Officers concerned did not realise the serious harm and harassment which they would cause to the public servant by their unauthorised and Irresponsible action. On at one ground alone the entire proceeding in this Criminal Case have to be quashed under Section 561A Cr.P.C.