1. This is a reference made to us by the learned Sessions Judge, East Khandesh, recommending that the order of conviction and sentence and also the order of forfeiture passed by the learned Resident Magistrate, First Class, Bhusaval, be set aside. The learned Magistrate convicted the accused under Section 5 of the Bombay Prevention of Gambling Act and sentenced them to pay a fine of Rs. 50 each and in default simple imprisonment for seven days. He also directed that the money found in the raid with the accused and seized by the police should be forfeited to Government.
2. It seems that the learned Magistrate who tried the accused was also the Magistrate who issued a warrant under Section 6, and it seems to us that we should accept the reference and set aside the order on a ground which is one of considerable public importance. It seems to us wrong in principle that the Magistrate who issues the warrant under Section 6 should be the same judicial authority who should try the accused, who has the right to challenge the propriety of that very warrant. Now, under the Bombay Prevention of Gambling Act the warrant issued under Section 6 has a high presumptive value, because under Section 7 until the contrary is proved the house, room or place which is searched pursuant to the warrant and in which any instrument of gaming is found shall be presumed to be used as a common gaming house and the persons found therein shall be presumed to be present there for the purpose of gaming, although no gaming was actually seen when the house was searched or raided. The learned Government Pleader points out that it would not be correct to say that under Section 556 of the Criminal Procedure Code the learned Magistrate is disqualified because he is personally interested in the case. We agree that Section 556 has no application, because the fact of issuing the warrant does not give any personal interest to the Magistrate in the case which he is trying. But a more important and a more fundamental legal principle is involved. It is always open to the accused to challenge the validity or the propriety of the warrant issued by the Magistrate in a case tried under the Bombay Prevention of Gambling Act, and it is entirely wrong that the same person who in his executive capacity issues the warrant should judicially consider its validity or propriety. It has also got to be remembered that the accused has the right to call the Magistrate who issues the warrant as a witness on his behalf, and therefore it is not right that the accused should be put to the difficulty of applying for a transfer of the case to some other Court in the event of his deciding to call the Magistrate as a witness.
3. The Government Pleader has urged that it will be very inconvenient in many taluka places where there is only one Magistrate to find some other Magistrate than the one who issued the warrant to try the case. In the first place, arguments of convenience can never prevail over fundamental legal principles. In the second place, we feel that really there is no difficulty in the way of Government. Under Section 6 it is not necessarily a Magistrate who can issue a warrant, a District or Assistant' or Deputy Superintendent of Police is equally authorised under that section to issue the warrant. We therefore think that Government ought not to put up cases under the Bombay Prevention of Gambling Act, 1887. before Magistrates who themselves have issued warrants under Section 6 of the Act. In the view that we take we feel that the trial of the accused has been vitiated by the Magistrate who issued the warrant under Section 6 trying them for an offence punishable under Section 5. We therefore accept the reference and set aside the order of conviction and fine and forfeiture and direct that the accused should be tried by some other Magistrate. The papers to be forwarded to the District Magistrate who should appoint some Magistrate to try the case.