1. In this case the two accused were charged under Section 12 of the Bombay Prevention of Gambling Act, IV of 1887, in the Court of the Honorary Presidency Magistrate, Girgaum, Bombay. [His Lordship, after setting out the facts, continued :]
2. The accused were tried by a Bench of Honorary Magistrates consisting of two Honorary Magistrates, Mr. Kapadia and Mr. Turkhud. Mr. Kapadia wrote and signed the judgment aquitting the accused, and subsequently made a remark that he understood from his colleague Mr. Turkhud that he differed from him on points of law as well as of fact, and that he was not bound to record this note of dissent. The accused were, therefore, acquitted according to the judgment of Mr. Kapadia whose opinion as Chairman prevailed. An appeal has been filed by the Government of Bombay against the order of acquittal, and at the time of the admission, the judgment of Mr. Turkhud was sent for in accordance with the prayer in the memo of appeal.
3. The first question that arises in the case is whether the judgment of the dissenting Honorary Magistrate forms part of the record.
4. Rule 9 of the rules framed by the Local Government under Section 21 of the Code of Criminal Procedure says:-
The Chairman shall conduct the proceedings of the Court, but every member of a Bench shall have a voice in the determination of all points arising in any case before the Bench and in the finding and sentence. When opinions are divided the decision of the majority shall prevail; and when the Bench is equally divided the Chairman shall have a second or casting vote.
5. Rule 10 of the said rules says :-
The Chairman of a Bench shall ordinarily record the evidence (when necessary) and the judgment and/or sentence of the Court; but such duty may, with the Chairman's consent, be performed by any one of his colleagues, or at his dictation, by the Judicial Clerk of the Court. If the last course be adopted each record of judgment or sentence shall be signed by the Chairman of the Bench.
6. It is argued on behalf of the accused that when the Bench is equally divided in opinion, the Chairman shall have a second or casting vote and that the Chairman shall record the judgment of the Court, and that the rules contemplate that the only judgment of the Court shall be the judgment signed by the Chairman, and though the dissenting Magistrate may have a voice in the determination of all the points arising in the case, his judgment does not form part of the record. It is argued on behalf of the Crown that though the Chairman may have a second or casting vote and the prevailing judgment of the Court may be the judgment of the Chairman, still as the dissenting Magistrate has a voice in the determination of all the points arising in the case, his judgment forms part of the record of the case.
7. Rule No. 9 which directs that when a Bench consisting of two members is equally divided in opinion, the decision of the Chairman shall prevail, is apparently not quite consistent with other provisions of the Code. Under Section 429 of the Criminal Procedure Code, 'when the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.' To the same effect are the provisions of Section 489 and Section 378 of the Criminal Procedure Code. It might be said on the one hand that the rule investing the Chairman with a second or casting vote when the Bench consists of two members is arbitrary and inconsistent with natural justice, and that the guilt or innocence of the accused should not depend upon chance and choice of the Chairman, and that such an arbitrary and apparently unjust rule should not have the force of law. On the other hand the rule is consistent with cl. 36 of the Amended Letters Patent of 1865. With regard to a similar rule in Calcutta there was conflict of judicial opinion on the point as to whether it was inconsistent with the Code, but there was unanimous disapproval of the rule, and the rule was subsequently modified by the Local Government. See Henry Wakefield v. Haran Sardar (1904) 8 C.W.N. 862, Lal Behari Chuckerbutty v. Jalukhan (1905) 9 C.W.N. (269), and Kailash Chandra Indu v. Kali Prosunno Roy (1906) 10 C.W.N. 642. I am not prepared to say that the rule is ultra vires as being inconsistent with the Criminal Procedure Code though it is desirable that the rule should be modified. We have, therefore, to construe the rule as it is, and under Rule 9 the Chairman shall have a casting vote and the judgment of the Court, according to Rule 10, will be the judgment of the Chairman who, according to Rule 9, has two votes and the dissenting Magistrate will have one vote. Nevertheless, the dissenting Magistrate is contemplated by Rule 9 to have a voice in the determination of all the points arising in any case before the Bench and in the finding and sentence as a member of the Bench, and has a right to record his judgment and his finding. I think that the dissenting judgment of the Honorary Magistrate even if the Bench consists of two members should form part of the record; otherwise the appellate Court would not be in a position to know whether the judgment of the lower Court is a concurrent judgment of two Judges or is a judgment of the Chairman dissented from by the other member of the Bench. This view is consistent with the intention of the Legislature as expressed in Section 265, cl. 4, of the Criminal Procedure Code: 'If the Bench differ in opinion, any dissentient member may write a separate judgment.' I think, therefore, that the judgment of Mr. Turkhud does form part of the record of this case.
8. On the merits, according to the definition in Section 3 of the Bombay Prevention of Gambling Act, IV of 1887, 'any transaction by which a person in any capacity whatever employs another in any capacity whatever or engages for another in any capacity whatever to wager or bet whether with such licensee or with any other person shall be deemed to bo ' gaming' ', and under Section 12 'a Police-officer may apprehend ... any person found gaming in any public street, &c.;' According to the prosecution, accused No. 1 engaged his cook, accused No. 2, to wager or bet with some other person. According to the defence, accused No. 1 did not engage accused No. 2 to wager or bet, but that accused No. 1 wrote out on a piece of paper the horses which were likely to win, and that accused No. I. gave the tips to accused No. 2. The answer to the question whether accused Nos. 1 and 2 were gaming would depend upon the simple question of fact whether accused No. 1 passed Re. 1-4-0 to accused No. 2. That is a question of fact which would be decided on the evidence in the case. Both the Magistrates are divided in opinion and though the judgment of the Chairman is to be considered as the prevailing judgment of the Court, it is clear that it is not entitled to greater weight than that of the dissenting Honorary Magistrate, [His Lordship here discussed the evidence in the case, and concluded: ]
9. On the whole, I am satisfied on the evidence that accused No. 1 passed Re. 1-4-0 to accused No. 2. Both the accused were, therefore, found gaming on a public street and are proved to have committed an offence under Section 12 of the Bombay Prevention of Gambling Act IV of 1887.
10. I would, therefore, allow the appeal, convict the accused and sentence accused No. 1 to pay a fine of Rs. 10 and accused No. 2 to pay a fine of Rs. 5 in default to undergo one week's simple imprisonment.
11. This is an appeal by the Government of Bombay against an order of acquittal passed by the Honorary Presidency Magistrates' Court, Girgaum, Bombay, in a case in which the accused No. 1, Fardunji C. Gora and accused No. 2, Sebastian Menezes were charged with an offence under Section 12 of the Bombay Prevention of Gambling Act IV of 1887.
12. Before dealing with the facts a point of law arises in connection with the trial by the Honorary Presidency Magistrates' Court. The case was heard by a Bench of two Magistrates, Mr. P.P. Kapadia, Chairman and Mr. B.S. Turkhud. They differed in opinion, Mr. Kapadia, holding that the accused should be acquitted, Mr. Turkhud holding that they should bo convicted. The opinion of the Chairman as the senior prevailed and the accused were accordingly acquitted and the present appeal by Government is against that order of acquittal. Both Magistrates wrote separate judgments, but the judgment of Mr. Turkhud was not read, nor was any mention of it made in the Chairman's judgment. Mr. Turkhud objected and the Chairman therefore added a post-script to his judgment to the following effect :-
I understand from my colleague Mr. B.S. Turkhud that he differs from me both on facts as well as law but I being the Chairman I exercise the privilege of the casting vote under rules for the guidance for the benches of the Honorary Presidency Magistrates. The above judgment is therefore the judgment of the Court. 1 am not bound under the Rules to record this note of dissent. 1 do so because I am asked by my colleague to record it. This should not be however taken as a precedent in future.
13. The question, therefore, is, whether when there is a differenee of opinion between the members of a Bench this fact should be noted in the record. When it was brought to the notice of the High Court that Mr. Turkhud had written a dissentient judgment, which did not form part of the record, his judgment was called for and has been printed along with the record. The rules on the subject are Rules 9 and 10 of the rules for the guidance of the Benches of Honorary Presidency Magistrates, published under G.R.J.D. No. 2536 of May 19, 1904, and sub-sequently modified by G.R.J.D. No. 3801 of July 29, 1905 and G.E.J.D. No. 1653 of March 28, 1908. These rules will be found in the Manual for the use of the Honorary Presidency Magistrates of Bombay at pp. 2 and 3. [ His Lordship after quoting Rules 9 and 10 proceeded : ]
14. It will thus appear that no express provision is made by the rules for the record of the dissent of any member of the Bench. In the present case there were two Magistrates, who disagreed. Under Rule 9 the Chairman's opinion prevailed. His judgment as originally written contains no reference to the fact that his colleague differed from him; and that the finding of acquittal was based on his second or casting vote.
15. In my judgment it is necessary that the fact of the Bench being divided in opinion, and the decision being the decision of the majority, or in case of equal division, of the Chairman having given a second or casting vote, ought to form part of the record. This is necessary for the information of an appellate or revisional Court, and I am, therefore, of opinion that in all such cases the existence of the dissent should be recorded and that the rules should be amended accordingly. It is still more necessary when, as in the present case, the dissenting member of the Bench has written a separate judgment. [His Lordship, after discussing the facts of the case, concluded: ]
16. Under Section 3 of the Bombay Prevention of Gambling Act, any transaction by which a person in any capacity whatever employs another person in any capacity whatever or engages for another in any capacity whatever to wager or bet whether with the race-course licensee or with any other person shall be deemed to be 'gaming'. This answers the view taken by the Chairman of the Bench that no offence was committed by accused No. 2. Under Section 12 gaming in a public street is made punishable with fine and imprisonment. Both the accused are, therefore, guilty of an offence under Section 12 of the Act-the slip and money having been handed over in a public street. The offence in this particular case is of a trivial nature, especially in view of the fact that if the accused No. 1 had handed the slip and the money over to accused No. 2 in* a private room inside the hotel instead of in the street outside it, no offence would have been committed.
17. I am, therefore, of opinion that the order of acquittal should be set aside and the accused convicted under Section 12 of the Act. As regards the sentence, it will be sufficient if accused No. 1 is fined Rs. 10 and accused No. 2 Rs, 5, in default seven days' simple imprisonment.