John Beaumont, Kt., C.J.
1. His Lordship went into the facts of the case, and came to the conclusion that the Magistrate was justified in convicting the accused. The judgment then proceeded to sea with the points of law raised in the case. Mr. Velinker then takes certain points of law. He says, in the first place, that the two panchas who took part in the raid were not local people, and, therefore, Section 103 of the Criminal Procedure Code was not complied with. The first answer to that is that Section 103 in terms only applies to searches to be made under the Code, and there is nothing in the Bombay Prevention of Gambling Act which requires search made under Section 6 to be in conformity with the provisions of Section 103. No doubt the police often do, and very wisely, carry out a search under the Prevention of Gambling Act in accordance with the provisions of Section 103, but in my view it is not essential to do so, Even if I thought that it was essential, I should say that the fact that the panchas were not local people is an irregularity which could be cared under Section 537 of the Code. The Sub-Inspector who made the raid says that the panchas were not known to him. He apparently collected the first two people he could find who happened to be at the police-station, but there was no evidence that they were not perfectly independent persons.
2. Then the next point of law which is a rather more serious one is that the arrest of the accused was illegal. Under the search warrant it is open for the police to arrest anybody found at the common gaming house, and as accused No. 2 was there on the occasion of the raid on October 3, undoubtedly he could have been arrested. But in fact he was not arrested on that occasion; he was arrested on October 19. Accused No. 1 was also arrested on October 19, and accused No. 3 was arrested on November 20. Mr. Velinker says that this was a non-cognizable offence, and therefore the accused could not be arrested without warrant. 'Cognizable' is defined in Section 4 (f) of the Criminal Procedure Code to mean a case in which a police-officer may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant. Under the last words of the second schedule this is not a case in which the police could arrest without a warrant, and so far as the law for the time being in force is concerned, the only special law dealing with the case, viz., the Prevention of Gambling Act, requires a warrant to be issued under Section 6. I think, therefore, that under the Code it is clear that this was not a cognizable offence, but Mr. Velinker has referred us, and quite rightly, to a case which appears to be against him on that point: Emperor v. Ismail : AIR1930Bom49 . The headnote in that case is:-
Held (1) that the offence punishable under Section 4 of the Bombay Prevention of Gambling Act 1887 as modified up to date was a cognizable offence in all cases, and that the Commissioner of Police could therefore arrest without a warrant.' In my view that statement in the head-note is not justified by the actual decision. It is quite true that the first question submitted to the High Court by the Magistrate was whether offences punishable tinder Section 4 of the Bombay Prevention of Gambling Act (Bom. IV of 1887) as modified up to date are cognizable offences in all cases Mr. Justice Patkar who gave the first judgment does not appear in terms to have answered that question, but his reasoning suggests what he thinks the answer should be, The case was a peculiar one on the facts, because the Commissioner of Police was himself present on the occasion of the raid. What Mr. Justice Patkar held was that, inasmuch as the Commissioner of Police was in a position to issue a warrant under Section 6 of the Act authorising a police officer to make the raid and arrest, he could himself do what he was capable of authorising somebody else to do, and it is clear that that reasoning would only apply to a case in which the Commissioner himself was present, Mr. Justice Wild, the other Judge, does answer the question, but he answers in these terms (p. 363): ' The Commissioner of Police of Bombay was in the circumstances of this case authorised to arrest the accused'. But the case in not an authority for saying that offences punishable under Section 4 of the Bombay Prevention of Gambling Act, 1887, are cognizable offences. I think, therefore, that in this case the arrest of the accused, certainly of accused Nos. 1 and 3, was not justified, I doubt; whether the arrest of accused No. 2 was justified so long after the raid as his arrest took place.
3. But then the learned Government Pleader says that even if that is so, the charge sheet sent up in this case can be treated as a complaint and the Magistrate can therefore take cognizance, and for that he relies on the case of Emperor v. Shivaswami : AIR1927Bom440 . I think the case is an authority for that proposition, and I think in this case the Magistrate could take cognizance of the matter, Mr. Velinker has further argued that the charge-sheet was in any case pot a sufficiently specific statement of facts to come within Section 19(1)(a) of the Criminal Procedure Code. The charge-sheet contains a certain number of fuels, though, I agree, that it does not contain a very complete statement of facts, but even if the charge-sheet was not sufficiently specific as to facts, I think that the defect is cured under Section529 of the Code which provides that if any Magistrate not empowered by law to do any of the following things, namely, (e) to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or Clause (6), erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.
4. I am quite satisfied that if there was any mistake in this case it was committed in good faith by the Magistrate, and I think probably both he and the police were led astray by the too wide terms of the headnote in the case of Emperor v. Ismail.
5. I think, therefore, that the points of law fail and that the conviction and sentence must be upheld.
6. I agree. I consider that the betting slip Ex. 1-C 7 must be regarded as a record of betting transactions and therefore an instrument of gaming when it is considered in connection with the evidence as to the telephone messages and the letters found in the raid in accused No. 18 house. The telephone itself would also be an instrument of gaming if used for the purpose of making bets as the evidence shows that it was The prosecution, therefore, can call in aid the presumption under Section 7 of the Act.
7. Mr. Veliuker for the applicants called our attention to certain remarks in the judgment in Emperor v. Rustam Lam (1931) 34 Bom. L.R. 267 Referring to certain slips of paper containing the names of horses which were found in the house of the accused in that case the learned Chief Justice said (p. 270):-
The slips of paper which were found appear to me to be consistent with the view that Dr. Lam wag interested in horse racing, as he says, and was making a note of beta which he proposed to make at the races, possibly for himself and his friends as well. But I see absolutely no evidence of anything in thenature of a betting business or of a book maker's business being carried on by Dr. Lam or by the other accused who were in his rooms.
8. I think there is no similarity between the facts in that case and the facts with which we have to deal. Dr. Lam was a medical practitioner. The premises raided were his consulting rooms. In the present case accused No. 1 is a licensed clerk of his cousin who is a licensed book-maker in Poona. Accused No. 2 is his clerk and accused No. 3 is a relation of his who has what is described as a racing business in Bombay.
9. Although this is a revision application, we have been taken through the evidence, and I find nothing to support the suggestion made on behalf of the accused that the telephone messages might have been faked and the letters which were found at the time of the raid forged. In my opinion the Magistrate had before him evidence on which ha could legally convict the accused of the offences with which they were charged, and for the purposes of this revision application that is sufficient.
10. As regards the alleged legal flaws in the proceedings, the argument based on Section 103 of the Criminal Procedure Code fails because that section does not apply to searches under Section 6 of the Bombay Prevention of Gambling Act, That has been held in Khilinda Ram v. Crown I.L.R. (1922) Lah. 359 and in several other cases.
11. The other point is that the offence with which the accused are charged is a non-cognizable offence within the definition in the Criminal Procedure Code, Section 4 and schedule 2, that, therefore, the police had no power to arrest without warrant and that as the arrest was illegal the trial also was vitiated. I agree with the learned Chief Justice that the decision in Emperor v. Ismail : AIR1930Bom49 is not really an authority for the proposition stated in the headnote, viz., that offences under Section 4 of the Bombay Prevention of Gambling Act are cognizable offences in all cases. In this particular case it appears to ine that as the police omitted to arrest accused No. 2 at the time of the raid and had no opportunity of arresting the others, they had no power to arrest any of them on a subsequent occasion without a fresh warrant. On the other hand, I cannot agree that that irregularity vitiates the trial. The case of Emperor v. Shivaswami : AIR1927Bom440 is an authority for holding that thecharge-sheet submitted by the police to the Magistrate can be treated as a complaint under Section 190(1)(a) of the Criminal Procedure Code, Mr. Vulinker referred us to as earlier decision in Emperorv. Chandri I.L.R. (1924) Bom. 212 : 26 Bom. L.R. 1225 which, in his opinion, supports the argument that the trial is vitiated by the illegality of the arrest. That was a Case under the Bombay Prevention of Prostitution Act, 1923. There is a special provision, Section 10, in that Act, laying down the conditions in which arrests can be made. An accused person was arrested contrary to those provisions and it was held that the Magistrate had no power to take cognizance of the case under Section 190 of the Criminal Procedure Code. It so happened that one of the Judges constituting the bench, Mr. Justice Fawcett, was also a party to the later decision in Emperor v. Shivaswami. It appears from certain remarks in his judgment in Emperor v. Chandri that he considered that there were special reasons in that case for holding that the validity of the arrest was a question which materially affected the question of jurisdiction. He referred to the earlier case in his judgment in Emperor v. Shivaswami and found nothing in it inconsistent with the view which he took in the later case. I hold, therefore, that the Magistrate had jurisdiction to try the case, and even if the complaint was technically insufficient, it was only an irregularity which could be cured by the provisions of Section 529 of the Code. Both the police in arresting the accused and the Magistrate in trying the case were clearly acting in good faith and they had the authority of the head-note in Emperor v. Ismail to support them.