1. This is a report by the District Magistrate at Raichur recommending that the case be sent for 'de novo' trial to the Magistrate's Court at Manvi.
2. Mr. Appa Rao, the learned Advocate for the accused party Yakub Sab has appeared before mo and requested that the case be treated as a revision petition against the order of conviction.
3. So far as the question of 'de novo' trial is concerned, I do not agree with the recommendations of the District Magistrate. The ground on which the said District Magistrate has recommended 'de novo' trial is that according to his view. Section 248 Criminal P.C. does not warrant summarry trial of cases under the Hyderabad Gaming Act. Mr. Trimbak Rao, the learned Public Prosecutor has rightly pointed out that the aforesaid interpretation of Section 248 put by the District Magistrate is not correct. The said Section has been amended in 1356 F. long before the report under consideration, was made. Under the amendment, First Class Magistrates and other Magistrates mentioned in the Section are empowered, to try summarily offences not punishable with death, life imprisonment, or punishment for a term not exceeding six months. Under the Hyderabad Gaming Act punishment under Section 5 is one month. Thus, the Magistrate was within his powers when he tried the case summarily.
4. With regard to the merits of the case, in view of the arguments of Mr. Appa Rao, learned Advocate, full consideration is necessary. The facts briefly are that the present petitioner Yakub Sab & others were prosecuted under Section 5 of the Hyderabad Gaming Act for gambling at a public place. Three witnesses were examined on behalf of prosecution while two were produced on behalf of the defence. P.W. 1 Ragliavia, is the Investigating Officer. He states that after obtaining a warrant from the Magistrate of the Taluqa he searched the place in question known as 'Kari-basappa Hotel' and found 9 persons playing cards and they had money in their possession, p.W. 3 Virauna is the panch. P.W. 3 Mallikarjunappa does not state much with regard to the facts of the case. On the statements of the witnesses, Mr. Appa Rao argues that it has not been proved that the place in question was a 'common gaminghouse' and that, therefore, the conviction and sentence, passed by the Magistrate must be set aside. Mr. Trimbak Rao, the learned Public Prosecutor argues that P.W. 1 searched the place in question after obtaining the search warrant under Section 6 of the Hyderabad Gaming Act corresponding to Section 5 of the Madras Gaming Act, and that once such a place is x searched after getting a warrant the resumption of law under Section 7 of the Hyderabad Gaming Act is that the Court shall presume that the place was used as a 'common gaming house' unless rebutted by evidence on behalf of the accused. The important question to be considered is whether the Magistrate while issuing the warrant of search under the said section has acted according to law and whether the warrant so issued was sufficient for the said presumption under Section 7. The warrant in question in this case (Ex. 1) states that after satisfying on the basis of the affidavit that in the hotel of Karibasappa Devappa gambling was going on, the search warrant was issued. Now the question that falls to be decided is whether the wording that is used in the search warrant is a sufficient compliance with the provisions of Section 6 of the Hyderabad Gaming Act. There is nothing in the warrant to show that the Magistrate considered the Hotel as a 'common gaming house.' No words to that effect are to be found in the warrant, Section 6 specifically provides that when a Magistrate.upon credible information and after such enquiry as he may think necessary has reason to believe that the house in question is used as a 'common gaming house' he may issue a warrant. Looking at Ex. A.I. do not find anything therein to arrive at) a conclusion that the Magistrate believed or had reason to believe that Karibasappa Hotel was used as a 'common gaming house.' There is no material on the record to show that the Magistrate had that fact in his mind at the time of issuing the warrant Ex. A.I. therefore, hold that the order of the Magistrate in respect of Ex. A is erroneous under Section 6 of the Hyderabad Gaming Act. I am fortified in my view by the ruling of the Madras High Court reported in 'In re Thambi Iyengar 1945 Mad W.N. 771 in which Justice Chandrasekara Iyer held that it is desirable that officers who issue warrants under Section 5 of the Madras Gamguage Act should take good care to employ the language of the Section in the Warrants.. In that case the warrant stated that
information had been laid before the officer issuing the warrant that gambling was going on In house No. 67, Iyengar Street.
It was held that the said information was not sufficient for the issue of a warrant under Section 5. Similar are the facts in the case before me. In the wai1-rant under consideration, the words used are that information was received that gambling was going on in Karibasappa Hotel.
5. It is only when there is a compliance with terms of Section 6 of the Hyderabad Gaming Act that the presumption under Section 7 will apply. Considering the statements of prosecution witnesses, I am constrained to hold that there is no proof in this case, apart from the alleged presumption that the room in question was used a 'common gaming house.' Under the circumstances, there being no presumption and no proof that the room in question was used as a 'common gaming house' the conviction of the accused has got to be set aside. I wish to repeat the words of the Hon'ble Justice Chandrasekara Iyer and express a desire that officers who issue warrants under Section 6 of the Hyderabad Gaming Act should take good care to employ the language of the Section in the warrants provided of course they are satisfied on information received by them that the place may be denominated 'common gaming house' as denned in the Hyderabad Gaming Act.
6. In the result, I set aside the conviction and sentence passed against the present accused and accept the revision as above.