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The State of Gujarat Vs. Mohamedeli Abdullabhai Panwala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR717
AppellantThe State of Gujarat
RespondentMohamedeli Abdullabhai Panwala and ors.
Cases ReferredEmperor v. Babilal Balvant
Excerpt:
.....in gaming contrary to this act and who is examined as a witness before a magistrate in the trial of any person for a breach of any of the provisions of this act relating to gaming and who upon such examination makes in the opinion of the magistrate true and faithful discovery to the best of his knowledge of all things as to which he is so examined shall thereupon receive from the said magistrate a certificate in writing to that effect and shall be freed from all prosecutions under this act for anything done before that time in respect of such gaming. it only deals with the result of the examination of a person concerned in gaming as witness and when that person gives a true and faithful discovery to the best of his knowledge of all things as to which he is so examined. any person..........that time in respect of such gaming.section 342a criminal procedure code reads as follows:any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.a person accused of an offence before a criminal court therefore is not a competent witness for the prosecution. the section refers to a person accused of an offence before a criminal court the expression accused may refer to a person even before he is accused of an offence before a criminal court. a person may be an accused person long before he is brought before a court. this is clear from sections 169 170 and 173 of the criminal procedure code. the police can.....
Judgment:

V.B. Raju, J.

1. Basing his order on Section 10 of the Bombay Prevention of Gambling Act the judicial Magistrate First Class 2 Court Broach passed an order ordering accused No. 4 in a gambling case to be examined as a witness after nearly all the other prosecution witnesses had been examined. For passing his order the learned Judge relied on Rahmankhan v. Emperor A.I.R. 1937 Nagpur 396 and the observations therein that an accused may be taken from the dock and placed in the witness box and returned back to the dock and punished if he fails to satisfy the Court that he is entitled to an indemnity. He also relied on Jwalaprasad and Ors. v. State 1953 Cr. L.J. 985 for his view that an accused may be examined at any stage of the trial as a prosecution Witness. The learned Magistrate also relied on Saikh Moti v. Emperor 14 Cr. L.J. 293. in regard to the ruling in Emperor v. Babilal Balvant 17 Bom. L.R. 1078 the learned Magistrate thought that Section 10 of the Gambling Act has been amended by Bombay Act XIV of 1959 and the ruling in 17 Bom. L.R. 1078 was therefore not applicable in view of the amendment of Section 10 of the Gambling Act.

2. In his reference the learned Sessions Judge feels that the learned Magistrates view is erroneous. He feels that the position remains substantially the same even alter the amendment of Section 10 of the Gambling Act by Act No. XIV of 1959. Section 5(2) Criminal Procedure Code reads as follows:

All offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regarding the manner or place of investigating inquiring into trying or otherwise dealing with such offence.

An offence under the Bombay Prevention of Gambling Act is not an offence under the Indian Penal Code and Sub-section (2) above applies to it. The trial for an offence under the Gambling Act is therefore to follow the procedure contained in the Cr. P.C. except where any enactment has been applied for the time being in force regulating the manner of trial of such offences. In regard to the manner of trial of offences under the Bombay Prevention of Gambling Act there is no provision in that Act. Section 10 of the Gambling Act does not refer to the procedure to be followed in the trial or inquiry but only refers to the result of the examination of a person as a witness at such a trial. Section 10 of the Bombay Prevention of Gambling Act in no way affects the procedure contained in the Cri. Pro. Code. regarding the trial of offences. Section 10 of that Act reads as follows:

Any person who has been concerned in gaming contrary to this Act and who is examined as a witness before a Magistrate in the trial of any person for a breach of any of the Provisions of this Act relating to gaming and who upon such examination makes in the opinion of the Magistrate true and faithful discovery to the best of his knowledge of all things as to which he is so examined shall thereupon receive from the said Magistrate a certificate in writing to that effect and shall be freed from all prosecutions under this Act for anything done before that time in respect of such gaming.

The heading of that section reads thus: Indemnification of certain witnesses. It only deals with the result of the examination of a person concerned in gaming as witness and when that person gives a true and faithful discovery to the best of his knowledge of all things as to which he is so examined. The section has no reference to the procedure to be followed at the trial. It only provides that a person referred to in that section shall be freed from all prosecutions under that Act for anything done before that time in respect of such gaming.

Section 342A Criminal Procedure Code reads as follows:

Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial.

A person accused of an offence before a criminal Court therefore is not a competent witness for the prosecution. The section refers to a person accused of an offence before a criminal Court The expression accused may refer to a person even before he is accused of an offence before a Criminal Court. A person may be an accused person long before he is brought before a Court. This is clear from Sections 169 170 and 173 of the Criminal Procedure Code. The police can release an accused person if in their view the evidence is deficient. Section 170 Cri. Pro. Code provides that the police should forward the accused under custody to a Magistrate empowered to take cognisance of the offence upon a police report if upon an investigation it appears to the police officer that there is sufficient evidence against him. Under Section 170 Cr. P.C. after an investigation is completed the police should forward the accused person to the Magistrate empowering to take cognisance of the offence on a police report. The word accused has therefore to be distinguished from the expression any person accused of an offence before a criminal Court. The latter expression has been used in Section 342A Cri. Pro. Code. Section 10 of the Bombay Prevention of Gambling Act does not use the words an accused person or the words any person or persons accused of an offence contrary to the Act before a criminal Court. That section therefore does not refer to a person accused of an offence before a criminal Court. It therefore refers to the examination of a person who is concerned in gaming contrary to the Act before his trial begins.

3. It is not necessary to refer to A.I.R. 1937 Nagpur 396 because that was a case under the Public Gambling Act 1867 In that Act there are two sections relevant on the point namely Sections 10 and 11 of that Act which read as follows:

10. Magistrate may require any person apprehended to be sworn and give evidence.

It shall be lawful for the Magistrate before whom any persons shall be brought who have been found in any house walled enclosure room or place entered under the provisions of this Act to require any such persons to be examined on oath or solemn affirmation and give evidence touching any unlawful gaming in such house walled enclosure room or place or touching any act done for the purpose of preventing obstructing or delaying the entry into such house walled enclosure room or place or any part thereof of any Magistrate or officer authorised as aforesaid. No person so required to be examined a a witness shall be excused from being so examined when brought before such Magistrate as aforesaid or from being so examined at any subsequent time by or before the same or any other Magistrate or by or before any Court on any proceeding or trial in any ways relating to such unlawful gaming or any such acts as aforesaid or from answering any question put to him touching the matters aforesaid on the ground that his evidence will tend to criminate himself.

Any such person so required to be examined as a witness who refuses to make oath or take affirmation accordingly or to answer any such question as aforesaid shall be subject to be dealt with in all respects as any person committing the offence described in Section 178 or Section 179 (as the case may be) of the Indian Penal Code. 11 Witnesses indemnified.

Any person who shall have been concerned in gaming contrary to this Act and who shall be examined as a witness before a Magistrate on the trial of any person for a breach of any of the provisions of this Act relating to gaming and who upon such examination shall in the opinion of the Magistrate make true and faithful discovery to the best of his knowledge of all things as to which he shall be so examined shall thereupon receive from the said Magistrate a certificate in writing to that effect and shall be freed from all prosecutions under this Act for anything done before that time in respect of such gaming.

4. Is possible to take the view that even under the Public Gambling Act an accused person under trial cannot be examined as a witness in view of the fact that the second part of Section 10 refers to a person who is brought before a Magistrate and it provides that such a person may be examined when such a person is brought before such Magistrate or at any subsequent time by or before the same or any other Magistrate. The second part of this section proceeds to refer to the examination of a person by or before any Court on any proceeding or trial in any ways relating to such unlawful gaming. It is difficult to hold that the second part of this section refers to the trial of himself either alone or along with other persons. In any case it is not necessary to decide this point as I am not concerned with the interpretation of Section 10 of the Public Gambling Act 1867 It is therefore not necessary to refer to the other cases reported in 1953 Cr. L.J. 985 14 Cri. L.J. 293 and A.I.R. 1937 Nagpur 396 which are also under the Public Gambling Act. The view that I have taken is also taken in 17 Bom. L.R. 1078. The reference is therefore accepted and the order passed by the learned Magistrate is set aside.


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