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In Re: Venkoba Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1948Mad358; (1948)1MLJ121
AppellantIn Re: Venkoba Rao and ors.
Cases ReferredSubramania Aiyar v. Emperor
Excerpt:
.....5. in the case before him, the failure to comply properly with the provisions of section 5 of the madras gaming act was the failure to state that the deputy superintendent of police who issued the warrant had reason to believe that the house in question was being used as a common gaming-house, and the learned judge held that in the absence of a statement in the warrant that the deputy superin-tendent of police who issued it had reason to believe that the house was being used as a common gaming-house the presumption under section 6 could not be drawn. he held, therefore, that the warrant satisfied the provisions of section 5 of the act. all that is necessary, if the magistrate has not stated himself that he had reason to believe that the place was used as a common gaming-house, is for..........42 of the madras city police act which, it may be stated here, is equivalent to section 5 of the madras gaming act of 1930, provides that:(1) if the commissioner has reason to believe that any place is used as a common gaming-house, he may by his warrant give authority to any police officer, above the rank of a constable to enter, with such assistance as may be found necessary, by night or by day and by force if necessary any such place, and to arrest all persons found therein and to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purposes of gaming which are found therein, and to search all parts of such place and also the persons found therein.3. section 43 of the act.....
Judgment:

Happell, J.

1. Criminal Revision Case No. 732 of 1947 arises out of the con-viction of six persons by the' Second Presidency Magistrate, Madras, for an offence under Sections 45 and 46 of the Madras City Police Act. Each of the accused was sentenced to pay a fine of Rs. 25, or in default to undergo two weeks' rigorous imprisonment. The petition has been filed by the 1st accused.

2. On 22nd October, 1946, a Sub-Inspector of the Madras Police obtained a warrant from the Deputy Commissioner of Police, Law and Order, and in pursuance of it, entered No. 7, Vaikunta Vadhyar Street and conducted a search. According to the evidence, he found the six accused playing cards for money in a room in a house which belonged to the first accused, and he seized the cards with which they were playing and some cash. Section 42 of the Madras City Police Act which, it may be stated here, is equivalent to Section 5 of the Madras Gaming Act of 1930, provides that:

(1) If the Commissioner has reason to believe that any place is used as a common gaming-house, he may by his warrant give authority to any police Officer, above the rank of a constable to enter, with such assistance as may be found necessary, by night or by day and by force if necessary any such place, and to arrest all persons found therein and to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purposes of gaming which are found therein, and to search all parts of such place and also the persons found therein.

3. Section 43 of the Act provides that any cards, dice, etc., or other instruments of gaming found in any place entered or searched under the provisions of Section 42, or on any person found therein, shall be evidence that such place is used as a common gaming-house, and that the persons found therein were there present for the purposes of gaming, although no play was actually seen by the police officer or any of his assistants. In the case before us, it was not proved directly that the first accused was using the premises for his own profit or gain; but the Magistrate, as there was no evidence in rebuttal, drew the presumption under Section 43 of the Act that the premises were being used as a common gaming-house.

4. It was argued before the Second Presidency Magistrate that the warrant was invalid, because it did not specifically state that the Deputy Commissioner had reason to believe that the premises in question were being used as a common gaming-house, and that that being so, no presumption under Section 43 of the Act could arise. The warrant, Ex. P-1 issued by the Deputy Commissioner was in this form:

Whereas information has this day been laid before the undersigned, Commissioner of Police and Justice of the Peace for the Town of Madras, that a common gaming-house is kept on the premises-occupied by Venkoba Rao....These are therefore to command you forthwith to enter the said premises with such assistance as may be found necessary and to take into custody all persons who may be found therein....

5. It is not stated in the warrant that the Commissioner of Police had reason to believe that the place was used as a common gaming-house and the material on the basis of which he issued the warrant is not set out. The same argument has been addressed to us and the only question which we have to decide is whether the warrant was invalid because it was not stated therein that the Commissioner had reason to believe that ho. 7, Vaikunta Vadhyar Street, was being used as a common gaming-house. The second Presidency Magistrate held that the warrant issued was valid and that the presumption under Section 43 could be drawn on the authority of two decisions of this Court In re P.R. Subbier (1934) 68 M.L.J. 348 : I.L.R. 58 Mad. 867 and Crown Pro-secutor, Madras v. Syed Cassim and Ors. (1936) M.W.N. 214. In addition to these decisions, our attention has been drawn to several other decisions on the question of the form of warrant issued under Section 42 of the Madras City Police Act or Section 5 of the Madras Gaming Act. In In re P.R. Subbier (1934) 68 M.L.J. 348 : I.L.R. 58 Mad. 867 referred to by the Magistrate, it was held by Cornish, J., that it was not necessary for it to be stated in the warrant that the Magistrate had reason to believe the information on the basis of which the warrant was issued. It was sufficient, the learned Judge was of opinion, for it to be stated that: he had issued the warrant on information laid before him. In Crown Prosecutor, Madras v. Syed Cassim and Ors. 2 K.S. Menon, J., also held that the section did not require that it should be stated in the warrant that the Commissioner had reason to believe that the place was used as a common gaming-house. In this case, however, the learned Judge did consider evidence in regard to the information on which the warrant was issued and found that it was sufficient to give the Commissioner reason to believe that the place in respect of which the warrant was sought was used as a common gaming-house. The consensus of authority is undoubtedly that a warrant issued under Section 42 of the Madras City Police Act or Section 5 of the Madras Gaming Act is not invalid simply for the reason that it is not stated therein that the authority which has issued the warrant has reason to believe that the place in question is used as a common gaming-house. Vide Re. A. Perayya : AIR1946Mad465 In re Kulandaivelu Chettiar : AIR1938Mad705 . In re Naranappayya : (1938)1MLJ509 and Subramania Iyer v. Emperor (1935) 69M.L.J. 835. In Thambi Iyengar in re : AIR1946Mad157 Chandrasekhara Aiyar, J., no doubt did state that the presumption under Section 6 of the Madras Gaming Act will only apply if there is proper compliance with Section 5. In the case before him, the failure to comply properly with the provisions of Section 5 of the Madras Gaming Act was the failure to state that the Deputy Superintendent of Police who issued the warrant had reason to believe that the house in question was being used as a common gaming-house, and the learned Judge held that in the absence of a statement in the warrant that the Deputy Superin-tendent of Police who issued it had reason to believe that the house was being used as a common gaming-house the presumption under Section 6 could not be drawn. Chandrasekhara Aiyar, J., in his judgment in this case, does not refer to any decisions on the topic.

6. We are in agreement with the view that a warrant is not necessarily invalid because it does not state that the Magistrate has reason to believe that the place was used as a common gaming house. The section does not require the Magistrate to record his reasons for believing any information that the police might have given him. The real question seems to us to be whether, provided that the warrant purports to be issued under Section 5 of the Gaming Act or Section 42 of the Madras City Police Act the presumption under Section 6 or Section 43 must necessarily be drawn, or whether the prosecution can be required to prove that the Magistrate in fact did have reason to believe that the place was used as a common gaming house. The issue of a warrant under Section 42 or Section 5 carries with it conse-quences of the greatest importance, since if the warrant is valid the ordinary presumption of innocence in the case of the persons affected is removed and, provided that instruments of gaming are found, and these instruments may be articles of so ordinary a character as playing cards, the persons found in the place are presumed to be present for the purpose of gaming unless they can prove the contrary. It is manifest, therefore, that the provisions of the section, whether Section 42 of the Police Act or Section 5, of the Madras Gaming Act under which the warrant is issued should be strictly complied with. In In re Kulandaivelu : AIR1938Mad705 Horwill, J., rejected the contention that there must be some evidence before the prosecution that the warrant was issued under Section 5 upon proper information sufficient to lead a Magistrate to believe that the room in question was used as a common gaming-house. He was of opinion that the presumption raised under Section 114 (e) of the Evidence Act should be applied and that it would be against public policy if the prosecution. were compelled to let in evidence in regard to the material on which the Magistrate acted. A similar view was expressed by Kuppuswami Aiyar, J., in In re A. Perayya : AIR1946Mad465 in which he stated that it was not necessary to record the material on the basis of which the warrant was issued, as the Magistrate was presumed to know the law and the requirements of the section. In neither of these cases was the actual form of the warrant in question set out, and the argument advanced seems to have been that, whatever the form the accused could insist that evidence should be adduced that the warrant was issued upon proper information. In the case of the issue of a warrant under Section 42 of the Madras City Police Act or Section 5 of the Madras Gaming Act, there are really two acts that have to be performed, a judicial act and an official act. The official act is the issue of the warrant itself in due form over the signature of the Magistrate, and the judicial act is the satisfying of himself by the Magistrate that there is reason to believe that the place in question is used as a common gaming-house. In the present case, it no doubt may be presumed, since no special form for the. warrant is prescribed, that the official act was duly performed; and if the Magistrate had stated that he had reason to believe that the place in question was used as a common gaming-house, the Judicial act could also be presumed under Section 114 of the Evidence Act to have been regularly performed. Where, however, as in the present case, it is not stated that the Magistrate has reason to believe that the place is used as a common gaming-house, we do not see, having regard to the fact that the requirements of the sections must be strictly complied with, that the presumption should necessarily be drawn, if the warrant is challenged, that the Magistrate had reason to believe that the place was used as a common gaming-house. If the Magistrate has not chosen to state that he has ' reason to believe ' then the presumption need not be drawn unless evidence is adduced that in fact the warrant was issued on proper information. This seems to have been the view taken by King, J., in Subramania Aiyar v. Emperor : AIR1936Mad65 . In that case, King, J., held that the fact that the warrant did not contain the words ' reason to believe ' did not invalidate it and that the mere omission of the particular words in the warrant was by no means conclusive, the real question being whether as a matter of fact the Magistrate had or had not reason to believe. King, J., then examined the evidence and, finding among other things that the Magistrate had examined the Sub-Inspector on oath, observed that it was impossible to argue on these facts that the Magistrate was not aware of the serious step he was taking and that he had no reason to believe that the information that was given him was not true. He held, therefore, that the warrant satisfied the provisions of Section 5 of the Act. With respect, we agree with Horwill, J., in the case referred to above, that it would be against public policy if the prosecution were compelled to let in evidence in regard to the material on which a Magistrate acted. In our opinion however, it will not usually be necessary to require that the material should be divulged. All that is necessary, if the Magistrate has not stated himself that he had reason to believe that the place was used as a common gaming-house, is for the Court to be satisfied, in the words used by King, J., that the Magistrate was aware of the serious nature of the step he was taking and that he had reason to believe that the information which was given him was true. In the case of Subramania Aiyar v. Emperor : AIR1936Mad65 the fact that the Magistrate had examined the sub-inspector on oath showed conclusively that he was aware of the serious nature of the step he was taking and that it was necessary for him to satisfy himself that the information given him appeared to be true. In the present case, the evidence is that the sub-inspector, on information given to him that No. 7, Vaikunta Vadhyar Street, was being used as a common gaming-house, went straight to the Deputy Commissioner without himself verifying the information and obtained the warrant on which he acted. There is no other evidence than this, and as it appears that the Deputy Commissioner issued the warrant on no other information than the hearsay statement of the sub-inspector which the sub-inspector had not verified, we are unable to hold that in this case the Deputy Commissioner had reason to believe that the place was used as a common gaming-house. In that view, the presumption under Section 43 cannot be drawn, and as the Magistrate convicted the petitioner on the basis of the presumption and not on the basis of evidence that he was using the premises as a common gaming-house, his conviction must be set aside. The cases of the other accused are not distinguishable from that of the petitioner, we have called their cases up, and we also set aside their convictions. The revision petition is allowed.


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