T.N.R. Tirumalpad, J.
1. The petitioner was charged under Section 332 I.P.C. with having caused hurt on 7-11-1958 to the Police Constable P. W. 7 while he was discharging his official duty with intent to deter him from such discharge of duty as a public servant and to deter him from arresting certain gamblers including the petitioner. He was also charged under Section 13 of the Public Gambling Act with having been found gambling on the public road on the same day. He was convicted on both the counts by the learned Additional District Magistrate and sentenced to six months' R. I. under the first count and with fine of Rs. 50/- under the second count. His appeal to the Sessions Judge was dismissed. Now he has come up in revision.
2. The case against the petitioner was briefly as follows:
7-11-1958 was Dewali Day, when usually gambling takes place. A Police Party consisting of P. Ws. 3. 4, 7, 8 and others were going about in a Police truck at about 5 or 6 p. m.. when it was already dark with a view to detect gambling and for arresting the gamblers. When the Police truck had arrived near the Kongba Bazar, they saw a party of 20 to 30 persons gambling by the road side outside a Hotel. They stopped the vehicle about 15 to 20 ft. away and P. Ws. 7 and 8 got down from the Bus. The gamblers then started running away. P. W. 7 rushed towards them, but all the gamblers made good their escape except the petitioner. When P. W. 7 tried to arrest the petitioner, he was resisted and was assaulted by the petitioner with the stick - Ext. M/l and a simple injury was caused. It is under these circumstances the accused was charge-sheeted under Section 332 I.P.C. and Section 13 of the Public gambling Act and punished as stated above.
3. I shall first take up the conviction, and sentence under Section 13 of the Public Gambling Act. Section 13 of the Public Gambling Act makes playing for money on other valuable thing with cards, dice, counters or other instruments of gambling used in playing any game not being a game of mere skill in any public street, lane or thoroughfare, an offence and a Police Officer is authorised to apprehend without warrant any person found so playing. What we have to see is whether the ingredients necessary for a conviction under Section 13 of the Public Gambling Act were established by the prosecution against the petitioner.
4. The learned Sessions Judge held that actual gambling has been proved in this case. It is true that some of the P. Ws. stated that they saw 20 to 30 persons including the petitioner gambling by the road side. The question is whether the mere use of the word 'gambling' in the evidence of these witnesses is sufficient proof of the offence under Section 13. It was admitted by P. W. 8, the Sub-Inspector of Police that it was already dark when the Police reached the Kongba Bazar. The truck was stopped about 15 to 20 ft. away from the place where 20 to 30 peoples were found playing. It i; clear that from that distance on a dark night, the Police cannot have seen the persons playing for money or other valuable thing. Mere playing with the instruments for gaming like cards, dice, counters or other instruments has not been made an offence under the Public Gambling Act.
No doubt in. the case of a common 'Gaming House' in which cards, dice, or other instruments of gaming are kept or used for the profit of the persons owning, occupying, using or keeping such house as defined in Section 1 of the Public Gambling Act, Section 9 of the said Act makes it unnecessary for the prosecution in order to convict any person of keeping a common gaming house to prove that any person was found playing at any game for money, wager or stake. But in the case of Section 13 which makes playing for money or other valuable thing with cards, dice or counters or other instruments of gaming in public street, lane or thoroughfare an offence, Section 9 will not apply and it will be necessary for the prosecution to prove that any person arrested by a Police Officer without warrant was actually. found playing for money or other valuable thing. It is admitted in this case that the Police did not find any money or other valuable thing being used-Actually, no money was seized by the Police from the alleged place of gambling though certain instruments used for gaming were seized.
But again it was not disputed that these instruments can be used for playing either with money or without money. If a Police Party finds people playing with certain instruments used for gaming, they have no right to arrest any of the persons under' Section 13 unless the persons were found playing for. money or other valuable thing. It is the most important ingredient for the offence that the person or persons must have been seen playing for money or other valuable thing.
5. It was pointed out by the Government Advocate that the fact that they were playing for money or other valuable thing can be inferred from the conduct of the persons in running away at the sight of the Police. No Court can draw such an inference. It is necessary for the Police Officer to state in so many words that he found the persons playing for money or other valuable thing. It is quite possible that when so many persons assembled in a place and playing a game see a Police party rushing towards them, they get frightened and start running away. It does not necessarily follow that they were playing for money or other valuable thing.
Actually, when the instruments they were using for playing were left behind without being taken away, if money was being used for the play, it would also have been left behind in the hurry and the Police would have been able to recover it. That would have been important evidence. At least, it any of the Police Officers saw money being used that would have been some evidence. More statement by the witnesses that 20 or 30 persons were found gambling is certainly not sufficient evidence under Section 13.
6. The learned Sessions Judge remarked that the witnesses who stated about gambling going on were not cross-examined far the petitioner and that the petitioner did not challenge the fact of gambling. I am unable to understand the remark. The Petitioner's defence was that on the date of occurrence he had gone to Sing jamel to get medicines for his eye-trouble and that he did not participate In any gambling. It was for the prosecution therefore to establish that actually playing for money or other valuable thing with the instruments seized by them was going on at the place. This aspect of the matter has been lost sight of by both the lower Courts.
The learned Sessions Judge seemed to think that the very recovery of the instruments of gaming lent support to the inference that gambling was going on. He would have been quite correct if the seizure had taken place in a common gaming house to which the presumption under Section 9 of the Act would apply. But I have pointed out that Section 9 will not apply to an offence under Section 13 and it is necessary for the prosecution to prove that a person was found playing for money or other valuable thing. There is no doubt in my mind that no case has been made out against the petitioner under Section 13 of the Public Gambling Act. His conviction and the sentence passed on him under Section 13 have to be set aside.
7. Coming now to the other question whether an offence under Section 332 I.P.C. has been made out it is admitted by the prosecution that the Police party were rushing to arrest the gamblers when the petitioner caused the hurt with Ext. M/l to P. W. 7. It is admitted that Police did not have any warrant to arrest those persons. A Police Officer has authority to arrest a person without warrant under Section 13 of the Public Gambling Act, only if he found the person playing for money or other valuable thing. As there is no evidence in this case that any of the Police Officers saw any person playing for money or other valuable thing, it follows that the Police Officers had no right to arrest the petitioner Or any of the other persons under Section 13.
It further follows that in rushing to arrest the petitioner and others, P. W. 7 and the other Police Officers were not discharging their public duty, but were attempting to transgress the express provision of law. P. W. 7 cannot therefore be treated as having been discharging his duty as a Police Officer. The public servant must have been engaged in the lawful discharge of his duty, if Section 332 was to be attracted. So, Section 332 I.P.C. will not apply to the present case.
8. From the evidence adduced in this case, it is however clear that the petitioner was guilty of causing simple hurt to P. W. 7. The evidence against him is so overwhelming and his mere denial cannot rebut such evidence. He can therefore be punished under Section 323 I.P.C. for causing simple hurt to P. W. 7, even though Section 332 I.P.C. will not apply. But it was argued for the petitioner that when the Police were attempting to arrest him without warrant illegally under Section 13 of the Public Gambling Act, he was entitled to his right of private defence in resisting the arrest and that if in so resisting the arrest he caused simple injury, he will be protected under Section 97 I.P.C. I am afraid Section 97 I.P.C. will not help in this case as it is subject to the exception under Section 99 I.P.C. Private defence cannot be pleaded against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. Thus P. W. 7 in this case was a public servant. He was trying to arrest the petitioner and we have to take it that he was doing so in good faith. Though I have pointed out that his attempt to arrest was not justifiable by law, the petitioner cannot plead private defence.
9. Actually, the petitioner did not plead private defence in the Courts below. He completely denied the offence. We have again to take into consideration the fact that the injury was caused not at the time of arrest. Though the learned Sessions Judge has stated in his judgment that the petitioner resisted the arrest and while resisting he assaulted P. W. 7, I do not find from the evidence of any of the witnesses that the injury was caused at the time of arrest. I find that the learned A. D. M, in putting questions to the petitioner under Section 342 Cr. P.C. has also committed a mistake and put him the question that there was evidence that while P. W. 7 was discharging his official duty of arresting the petitioner for gambling he caused the injury. What P. W. 7 stated in his evidence was that at the sight of the Police vehicle all the gamblers fled away and he rushed towards them when the petitioner assaulted him with the stick. What P. W, 8 stated was he and P. W. 7 had got down from the Bus and then the petitioner gave a blow on the right forehead of P. W. 7. Thus it was not at the time of resisting actual arrest. Section 100 I.P.C. also does not show that the occasion for the exercise of the right of private defence had arrived in the present case. It is clear therefore that the petitioner is guilty under Section 323 I. P. C
10. The convictions of the petitioner under Section 332 I.P.C. and Section 13 of Public Gambling Act are therefore set aside and he is convicted under Section 323 I.P.C. As for the sentence, it is admitted that the petitioner is an old man of 65 years of age. We must also remember that it was Dewali Day when people were in a gay mood and that the Police also were exceeding their authority in trying to arrest the petitioner and others. The petitioner has already been in Jail for nearly two months. Under the circumstances I consider that the period of imprisonment already undergone by the petitioner is sufficient to meet the ends of justice. The petitioner is directed to be set at liberty immediately.