1. This is an application in revision against a conviction of the accused by the Presidency Magistrate, Third Court, for an offence under Section 4(a) of the Bombay Prevention of Gambling Act. The accused was fined Rs. 100.
2. The first point taken on behalf of the accused by Mr. Talpade is that although this is a case in which no appeal lies, nevertheless, the learned Magistrate ought to have recorded the evidence, and that without a record of the evidence the conviction ought not to be upheld. Section 362 of the Criminal Procedure Code provides that in every case in which an appeal lies the evidence shall be recorded in the manner specified. Thenin Sub-section (4) it is provided that in cases other than those specified in Sub-section (1), that is to say, in cases in which an appeal does not lie, it shall not be necessary for a Presidency Magistrate to record the evidence or frame a charge. That exception to the general rule was no doubt inserted in order to save the time of the Presidency Magistrate, and one effect of it is that in cases in which the provision is acted upon and applications are subsequently made in revision, this Court is always in the difficulty that it has no record of the evidence. Mr. Talpade agrees that the learned Magistrate was not bound to record the evidence, but he refers us to the case of Emperor v. Harischanchandra 10 Bom. L.R. 201 in support of his proposition that the Magistrate ought in fact to have recorded the evidence. In that case the court did undoubtedly say this. It refers to Section 362, and in discussing the section says (page 202 Page of 10 Bom. L.R.--[Ed.]):
No doubt the section, lays down that except in certain cases the Magistrate shall take down evidence in the manner prescribed thereby, but that does not mean that in the cases excepted he can act arbitrarily and record nothing by way of evidence. The exception gives him merely a discretion to take down the evidence or not; in other cases to which the exception does not apply he is bound to record the evidence. But the discretion, like all discretionary powers, should be exercised judicially in a reasonable spirit and nor arbitrarily. For instance, in cases of petty offences such as nuisances', or what are called in Police parlance 'morning cases', there may be no necessity to record any evidence. But in a case of this kind, where an educated man holding a comparatively respectable status in life is charged with an offence reflecting on his character and serious allegations are levelled against him, there ought to have been some record of evidence to enable him in a case of conviction to come up to this Court in revision and satisfy it that the conviction is wrong.
With all respect to the learned Judges who decided that case, it seems to me that in the passage I have read they were usurping the functions of the Legislature. Section 362 is perfectly plain; it says that in cases which are not appeable it shall not be necessary for a Presidency Magistrate to record the evidence. There is no distinction drawn between what the learned Judges refer to as 'morning cases' and any other cases. Nor is any distinction drawn between charges against people occupying a respectable status in life and people who occupy some other status. Nor in terms has any discretion been conferred upon the Magistrate. It is no doubt true that in one sense he has a discretion, because it is not illegal for him to record evidence if he likes to do so. But his right to refuse to record evidence is, in my opinion, absolute, and as long as the case falls within the cases excepted under Section 362(4), the Magistrate is not bound to record the evidence, and this Court has no jurisdiction to require him to do what the Statute says it is not necessary for him to do. If he likes to record the evidence, that is another matter, and probably if he was hearing a case which involved a question of serious consequence to the accused, and the accused asked him to make a record of those portions of the evidence on which he wished to rely on an application in revision, the Magistrate would in a proper case comply with that request. But in my opinion the exercise of any such discretion would be ex gratia, and not subject to review in this Court.
3. It is to be observed that in 1907 when the case of Emperor v. Harischandra 10 Bom. L.R. 201 was decided the wording of Section 362 of the Criminal Procedure Code was in different terms to these in which it is now expressed. But the decision has been acted upon to my knowledge in more recent cases, and I think it desirable to express the view that the decision was not justified by the terms of the Code, either as it existed then or as it now exists this Court is not justified in following a decision which is opposed to the plain words of a Statute.
4. With regard to the merits of the case we have got to accept the learned Magistrate's finding of fact as correct, since we have got no record of the evidence and cannot check it, and the finding is that the Police employed a bogus punter to make a bet with the accused and gave him a marked coin and that the marked coin was found on a raid of the accused's premises in his till. We held in a recent case that a marked coin proved to have been used for the purpose of making a bet was an instrument of gaming and that being so, the shop of the accused became a common gaming house within Section 4(a) of the Act. The conviction must therefore be upheld and rule discharged.
5. I agree.