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Burha and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1948All93
AppellantBurha and ors.
RespondentEmperor
Excerpt:
- - ordinarily, a magistrate who has issued a warrant should not try a case under the gambling act as before the search warrant is issued by him he has to be satisfied that the information given to him was credible. 6. to my mind, unless there is something more than this mere technical objection and if the court is satisfied that the accused have been rightly convicted it is not bound to set aside the conviction and direct a retrial. i think there is good reason for deprecating this practice and i, therefore, set aside the order passed by the learned city magistrate giving a reward of rs......applicants had urged that the conviction must be set aside as the case was tried by the learned city magistrate of benares who had issued the warrant for the search of the premises where the gambling was taking place. it is a fact that mr. b.b. lal, city magistrate, benares, had issued the search warrant and the case was tried by him, but no such objection to his trying the case was taken at the trial, nor was any such point raised before the learned sessions judge in the appeal against the order of the learned city magistrate. learned counsel has, however, urged that the trial is illegal and it cannot, therefore, stand and the' case must be sent back for a retrial. i do not agree with his contention that the trial is illegal.3. it is true that in raja ram v. emperor ('24) 11 a.i.r......
Judgment:
ORDER

Malik. J.

1. The applicants have been convicted under Sections 3 and 4, U.P. Public Gambling Act, and three of them have been sentenced to pay a fine of Rs. 75 each, and the others to pay fines of Rs. 50 each, and in default to undergo one week's rigorous imprisonment.

2. Learned Counsel for the applicants had urged that the conviction must be set aside as the case was tried by the learned City Magistrate of Benares who had issued the warrant for the search of the premises where the gambling was taking place. It is a fact that Mr. B.B. Lal, City Magistrate, Benares, had issued the search warrant and the case was tried by him, but no such objection to his trying the case was taken at the trial, nor was any such point raised before the learned Sessions Judge in the appeal against the order of the learned City Magistrate. Learned Counsel has, however, urged that the trial is illegal and it cannot, therefore, stand and the' case must be sent back for a retrial. I do not agree with his contention that the trial is illegal.

3. It is true that in Raja Ram v. Emperor ('24) 11 A.I.R. 1924 Lah. 247, Zafar Ali J., has held that the accused was materially prejudiced as the trial had been held by the Magistrate who had issued the warrant, but the point is not further discussed as the conviction was set aside on other grounds.

4. In Shyam Behari v. Emperor : AIR1934All987 , a reference had been made to this Court by the learned Sessions Judge in whose Court the point had been taken. The Honble Bajpai J. observed : 'It is not desirable that that very Magistrate should try the case ultimately.' This was on the ground that in a case under the Gambling Act the question of the legality of a warrant was very material as a question of some importance and the accused could examine the Magistrate as a witness. Ordinarily, a Magistrate who has issued a warrant should not try a case under the Gambling Act as before the search warrant is issued by him he has to be satisfied that the information given to him was credible. But, if the accused has raised no objection and does, not desire to summon the Magistrate as a witness, the mere fact that the Magistrate had issued a warrant does not necessarily vitiate the trial, and if that is the only ground and the accused has not suffered any prejudice this Court is not bound to interfere.

5. In Khemchand Girdharilal v. Emperor ('38) 25 A.I.R. 1938 Nag. 63, Pollodk J. has held:

None of the accused, of whom one is a pleader, objected to their trial by this Magistrate, and I do not think that this is a ground for interfering in revision.

6. To my mind, unless there is something more than this mere technical objection and if the Court is satisfied that the accused have been rightly convicted it is not bound to set aside the conviction and direct a retrial.

7. The only other ground urged by the learned Counsel is that the learned Magistrate was not justified in giving a reward of Rs. 50 to Mr. Junaid Alam, Sub-Inspector, out of the fine realised from the accused. In several cases this Court has deprecated the practice of giving rewards as it encourages false prosecutions. I think there is good reason for deprecating this practice and I, therefore, set aside the order passed by the learned City Magistrate giving a reward of Rs. 50 to the Sub-Inspector, Mr. Junaid Alam. There is no reason to interfere with the convictions and sentences. The application in revision is, therefore, dismissed.


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