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The State of Gujarat Vs. Jaganbhhai Bnagwanbhai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1964CriLJ589
AppellantThe State of Gujarat
RespondentJaganbhhai Bnagwanbhai
Excerpt:
.....an. - provided that no officer shall be authorised by special warrant unless the commissioner of police, the magistrate, the district or assistant or deputy superintendent of police concerned is satisfied, upon any complaint made before him on oath1 and upon making such inquiry as he may think necessary, that were are good grounds to suspect the said house, room or place to be used as a common gaming house. he is, therefore, in the position of a complainant, and in a case like this, we must book to corroboratton to the evidence of the complainant. 4. the finding of the learned magistrate that the is not satisfied that the police officer, who seized the articles, had reasonable grounds- for believing that they are instruments of gaming will not be disturbed by me in appeal, because the..........the respondent, when the shop was searched by the sub inspector of police under the authority of a warrant issued under section 6 of the bombay prevention of gambling act, which will hereinatier be referred to as the act. the learned magistrate held mat the slips were not instruments of gaming. the learned magistrate also held that he was not satisfied mat the police officer, who made the search and who seized the articles, had reasonable grounds for thinking that the slips were instruments of gaming. the learned magistrate, therefore, took the view that the presumption under section 7 of the act is not attracted and he acquitted the respondent. hence this appeal by the state of gujarat.2. that the slips were found in the- possession of the respondent is the finding of the learned.....
Judgment:

V.B. Raju, J.

1. This is an appeal by the State of Gujarat against the acquittal of the respondent, who was prosecuted Under Sections 4 and 5 of the Bombay Prevention of (jamming Act. The learned Magistrate held that money and sups were found in the possession of the respondent, when the shop was searched by the Sub Inspector of Police under the authority of a warrant issued Under Section 6 of the Bombay Prevention of Gambling Act, which will hereinatier be referred to as the Act. The learned Magistrate held mat the slips were not instruments of gaming. the learned Magistrate also held that he was not satisfied mat the police officer, who made the search and who seized the articles, had reasonable grounds for thinking that the slips were instruments of gaming. The learned Magistrate, therefore, took the view that the presumption Under Section 7 of the Act Is not attracted and he acquitted the respondent. Hence this appeal by the State of Gujarat.

2. That the slips were found in the- possession of the respondent is the finding of the learned Magistrate and this has also been admitted by the respondent, me only question is whether the slips were either instruments of gaming or whether the pence officer who concocter the search and who seized the articles had reasonable grounds for believing that the slips were instruments or gaming. On this point, there is only the evidence of the Sub Inspector of Police. According to him, these slips were instruments of gaming. In a case like this, it was open to the prosecution, to examine an. expert to prove the meaning of the words used on the slips Under Section 48 of the Indian Evidence Act as held by me in Chanderao Khanderao v. state of Gujarat, cinmmai given, pm. No. 931 of 1962, D/- 12-9-1963 (Gujarat). In this case, the prosecution has not examined any expert Under Section 48 of the Evidence Act. But the prosecution renes only on the evidence of the I.P. S. I. to whom the warrant was issued and1 who conducted the search and seized the articles. But In addition, the P. S. I. happens to Be the person who gave a complaint Before the Magistrate Under Section 6 of the Act and who obtained a warrant, in proviso to Section 6 of the Act reads as follows:-

Provided that no officer shall be authorised by special warrant unless the Commissioner of Police, the Magistrate, the District or Assistant or Deputy Superintendent of Police concerned is satisfied, upon any complaint made before him on oath1 and upon making such inquiry as he may think necessary, that were are good grounds to suspect the said house, room or place to be used as a common gaming house.

It is admitted by the P. S. I. that he himself gave me complaint to the Magistrate. He is, therefore, in me position of a complainant. It is true that he got information from police constable Annaji. But the compiaim was not lodged by Annaji before the Magistrate. I he complaint was made by the P. S. I. Khanviiker, and a warrant was issued to him. He is, therefore, in the position of a complainant, and in a case like this, we must book to corroboratton to the evidence of the complainant. u a police officer makes a complaint under the proviso to Section 6 of the Act and a warrant is issued to the very police officer, we must look to corroborate to me evidence of such a police officer. But if a complaint is made by one person and a warrant is issued to another person, the evidence of the person, to whom the warrant is issued, would not require corroboration. The contention of the learned Government Pleader that a warrant must be issued to the very person who has lodged a complaint Under Section 6 of the Act has not merit, as it is not supported by any thing in any of we sections of the Act. it a complaint is lodged by one person before the Magistrate, it is open to the Magistrate to issue a warrant to another person. But this has not been done in this case. Hence the evidence of the P. S. I. who gave the complaint on oath and to whom the warrant was issued would require corroboration. There is no such corroboration.

3. When a person has only information he should not give a complaint on oath before a Magistrate, a person who has no personal knowledge cannot make a complaint on oath and swear on oath that a particular house, room or place is used as a common gaming house.

4. The finding of the learned Magistrate that the is not satisfied that the police officer, who seized the articles, had reasonable grounds- for believing that they are instruments of gaming will not be disturbed by me in appeal, because the officer who seized the articles happens to & the person who made a complaint to the Magistrate m order to get a warrant.

5. I, therefore, hold that the acquittal of the respondent is right. The appeal is dismissed.


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