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Emperor Vs. Hiralal Motilal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 378 of 1912
Judge
Reported in(1913)15BOMLR331; 20Ind.Cas.143
AppellantEmperor
RespondentHiralal Motilal
Excerpt:
prevention of gambling act (bom. act iv of 1887), sections 5, 12-gambling in a public place-presumption under section l-presumption cannot be applied.;the presumption-mentioned in section s of the prevention of gambling act, 1887, cannot be applied to cases falling under section 12 of the act. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter..........for a moment the question whether the other on which gambling was said to be going on was a public place, and admitting for the sake of this argument that it was, the conviction becomes all the worse. the sole ground upon which the magistrate has found these four accused guilty is that they were present or near gamblers gambling in a public place, and from that he inferred that they must themselves have been gambling. this inference is entirely unsound, and was drawn no doubt by the magistrate owing to a subconscious importation of the presumption mentioned in a. 5. but the reason underlying that presumption has no applicability at all to cases under section 12. it ought to be obvious to anyone who takes the trouble to reflect that in the case of a gaming-house, which is not a.....
Judgment:

Beaman, J.

1. We think that the convictions and sentences must be set aside. Waiving for a moment the question whether the other on which gambling was said to be going on was a public place, and admitting for the sake of this argument that it was, the conviction becomes all the worse. The sole ground upon which the Magistrate has found these four accused guilty is that they were present or near gamblers gambling in a public place, and from that he inferred that they must themselves have been gambling. This inference is entirely unsound, and was drawn no doubt by the Magistrate owing to a subconscious importation of the presumption mentioned in a. 5. But the reason underlying that presumption has no applicability at all to cases under Section 12. It ought to be obvious to anyone who takes the trouble to reflect that in the case of a gaming-house, which is not a public place, those who deliberately go to rooms set apart for a particular purpose may very rightly be presumed to have gone there for that purpose. But no consideration resembling this has any applicability to the mere presence of persons in a public street or place. They may be there with quite innocent intentions and out of curiosity may pause to watch what is going on. Before any conviction could properly be arrived at under Section 12 it is obviously essential that the accused persons should be shown by evidence to have been actually taking part in the gambling. It is conceded here that there is absolutely no evidence of that kind. On that ground alone the convictions and sentences are quite clearly unsustainable and ought to be set aside. Adopting this view we do not consider it necessary to discuss the other point upon which the appellants rely, namely, that the other was not a public place. The convictions and sentences must be set aside, the accused acquitted and discharged, and any fines paid refunded.

2. These Proceedings have brought to our notice the conviction and sentence passed upon accused No. 3 who has not been directly represented. We have asked the learned Government Pleader whether anything could be said in support of his conviction and sentence which has not been said in support of the convictions and sentences of the other three accused, and he very candidly admits that there is nothing. In these circumstances we think we may safely act under Section 439, Criminal Procedure Code, without going through the formality of issuing notices and having a further hearing. We therefore direct that the conviction and sentence of accused No. 3 be likewise set aside, that he be acquitted and discharged and any fine which he may have paid be refunded.


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