J.N. Bhat, J.
1. This is a reference made by the learned Sessions Judge Kathua, on 16-3-1970 whereby he has recommended that the order of discharge passed by the Chief Judicial Magistrate Kathua, on 14-12-1968 should be set aside. The brief facts which have resulted in this reference are that on 30th October 1969 the Superintendent of Police Kathua issued a warrant for the search of the house of Piayroo son of Kripa Ram R/O Parol under the Gambling Act. The house of this Piayroo was raided in the evening of 31st October 1967 and the accused, who are 14 in number, were found gambling; hence a 1971 Cri.L.J./46 case Under Section 3/4 of the Gambling Act was presented against them. According to the prosecution story Shri Rajkumar S. H. O. raided the house of this Piaryoo and arrested some persons who were actually gambling and some of them were made to sit on a Garhi, may be truck or a bus, and others were being made to board the vehicle when a number of persons rescued the arrested persons and assaulted the police party. As a result of this incident 13 accused also were challaned Under Sections 224, 225, 353, 332, 147, 149 and 341, R. P.C. in the same court. When both the cases were presented before the Chief Judicial Magistrate he dismissed both of them holding firstly that the Gambling Act had not been extended to the village of the accused i.e. Village Parol, the search warrant under the Gambling Act was as such illegal and any assault committed by the accused on the police party would not be an offence in the eyes of law. Against this order, a revision application was presented before the Sessions Judge, Kathua. In that court a copy of a notification which was published in the Government Gazette dated 22-11-1998 was presented, according to which exercising the powers conferred by Section 2 of the Jammu and Kashmir Gambling Act, 1977 (Act No. XVIII) of 1977 (hereinafter referred to as 'the Act') the Government extended the provisions of the said Act to places mentioned therein and out of the places mentioned in the notification, village Parol within the police station Kathua also is included. According to the learned Sessions Judge, as the order of the Chief Judicial Magistrate was based mainly on the ground that the Act had not been extended to village Parol where the house of Piayroo was searched, this order cannot be maintained and he has accordingly recommended that the accused be tried in both the cases.
2. I have heard the learned Counsel for the parties.
3. In my opinion two points arise for consideration in this case. Firstly whether the Act applies to the village Parol where Piayroo accused lives and secondly whether the proceedings initiated on the warrant of the Superintendent of Police dated 30th October 1967 are proper, and consequently whether the prosecutions of the 14 accused Under Sections 3/4 of the Act and of the 13 accused under various sections of the Penal Code as mentioned above, are proper and the cases be proceeded with.
4. So far as the first point is concerned, there can be no controversy. By means of the Notification above men tioned the village Parol where Piayroo lives was included in the list of places to which the provisions of this Act were extended Under Section 2 of the said Act. But that would not solve the main difficulty. I have perused the original warrant issued by the Superintendent of Police Kathua, on 30th October 1967, the warrant is in Urdu, and appears to be a general warrant issued Under Section 5 of the Law relating to gambling vide Resolution of State Council No. 87 dated 3rd November 1891, Gazette No. 38 dated 15th Poh. 1948. I got the original Gazette traced out. The prosecution is sought to be under the Act i.e. under the J. & K. Public Gambling Act, 1977 and not under the Law as laid down in the Council Resolution dated 15th Poh. 1948. The learned Addl. Advocate General has however argued that the Act is only a translation of the original law contained in the Council Resolution. I have compared the law as contained in the Act and as in the Council Resolution. There is difference in certain sections; for instance Section 1 of the Resolution defines a Police Officer as one who is above the rank of a Sergeant (Head Constable) whereas Section 1 of the Act does not at all mention anything about a Police Officer. Then let us take Section 5 itself under which the warrant in question purports to have been issued.
5. Under Section 5 of the Council Resolution the power to issue a warrant is vested in the Judge of the Saddar Adalat, Superintendent of Police or Inspector of Police but Under Section 5 of the Act the power is vested in a Magistrate of the District or the District Supdt. of Police or Police Officer higher in rank. In the Act the Judge of the Saddar Adalat which means perhaps Sessions Judge has been omitted and the lowest Police Officer who can act under this Section is either a Supdt. of Police or his superior officer whereas under the Council Resolution even an Inspector of Police can exercise such powers. In the Act the Police Officer can authorise any Police Officer not below such rank as the Government shall appoint in this behalf; whereas in the Council Resolution the Police officer empowered must be above the rank of a Sergeant (Head Constable). Anyhow under both these enactments if we so call them, an officer issuing the warrant may either himself enter or by his warrant authorise any officer of the police mentioned therein to enter any such house, walled enclosure, room etc. etc. In the first place therefore, in my opinion the warrant could have been issued under the provisions of the Act and not under the Council Resolution, which will be deemed to have been repealed by a regular enactment passed by His Highness the Maharaja Sahib Bahadur. The warrant in question in this case is not under this Act at all. Its title is warrant 'Warrant Aam' i.e. 'General Warrant' whereas it should have been a special warrant as required Under Section 5 of the Act because that Section requires special particulars of the house to be given in the warrant. Secondly as is necessary under both these pieces of legislation the warrant should be addressed to a particular officer of the Police when it is to be executed by a person other than the officer issuing the same. In Section 5 the authority is to be given to any officer of the Police not below the rank prescribed by the Government and under the Council Resolution the authority is to be given to any Police Officer not below the rank of a Head Constable. This warrant does not bear any endorsement authorising any Officer of the Police either by name or by designation to execute the same. It is a plain printed yellow paper purporting to be signed by the Superintendent of Police Kathua and nothing more. As shall presently appear in the course of this judgment all warrants are to be executed by particular authorities in whose name they are endorsed; particularly all special warrants like the one under the Act have to be more specific. I shall discuss this matter from more than one angle. The warrant authorises a particular Officer to search the house and arrest people to seize such articles as can be used for gambling purposes etc. Unless this power is given to any particular officer, may be even by designation, it cannot be acted upon. Let us imagine for the sake of argument that this warrant which purports to be a general warrant came into the hands of a private citizen. Could a private citizen act and search the house of Piayroo on the basis of this warrant and if he were assaulted what would be the offence committed? I do not think the law ever envisaged investing of such important powers to any Tom, Dick and Harry. The powers can be exercised only by specified persons who have been authorised to exercise them. It has been argued that under the Act no special form of warrant is mentioned. Then the warrant that must be issued must be according to the Code of Criminal Procedure. Chapter VI (B) deals with warrants of arrest. Section 77 lays down the procedure to whom warrant is to be directed, Section 79 deals specifically with warrants which are directed to Police Officer so on and so forth. Under Section 75 the warrants shall be in writing and signed by the Magistrate, Under Section 77 the warrant of arrest shall be ordinarily directed to one or shall be ordinarily directed to one or more Police officers and Section 79 authorises any Police Officer who has been directed to execute a warrant to authorise another police officer to execute the same. Schedule v. Form II gives the form of a warrant Under Section 75. The form is as under:
To (Name and designation of the person or persons who is or are to execute the warrant)
Whereas of ,.......... stands charged with the offence of (state the offence), you are hereby directed to arrest the said.. ''' and to pro~ duce him before me. Herein fail not.
Date this day of ,19(Seal) (Signature)
The form clearly suggests that the warrant should be addressed to a parti~ cular officer and he is to be directed to execute the same. A warrant without any such endorsement is illegal and has no legal force.
6. Now let me deal with the two cases separately. First under the Gambling Act and then under the different sections of the penal code as already mentioned. When there is a defect in a warrant, the warrant is illegal. Reference may be made to ILR 51 Mad 873 : (A.I.R. 1928 Mad 624); A.I.R. 1948 All 428; A.I.R. 1948 Lah 81; A.I.R. 1962 Manipur 20; A.I.R. 1945 Nag 216; A.I.R. 1929 Born 157 and A.I.R. 1951 Sau 55. Most of these authorities deal specifically with warrants under the Gambl~ ing Act.
7. In ILR 51 Mad 873 : (A.I.R. 1928 Mad 624) it was held that:
A Magistrate cannot issue a warrant to a Forest Officer, unless the conditions specified in Section 77 of the Code of Criminal Procedure have been fulfilled. Nor can such officer endorse it to a forest watcher, as Section 79 of the Code does not apply to Forest Officers.
In A.I.R. 1948 All 428 Justice Sapru has held that it is not necessary that the warrant under the Public Gambling Act should be directed to one or more police officers but at the same time His Lordship held that:
it is important to ensure that the provisions of Section 5 which lay down the requirements of a legal warrant under the Gambling Act are complied with strictly.
Where a warrant Under Section 5 is defective, in that it does not state that the house which was to be searched was a common gambling house, no presumption would arise that the accused found in the house had gathered there for the purpose of gambling. In such a case the prosecution will have to prove by independent evidence affirmatively that the house in which the accused were found was being used as a common gaming house or that the accused were in fact gambling. In the absence of such evidence, the defect in warrant is fatal and cannot be cured Under Section 537, Criminal P.C.
In A.I.R. 1948 Lah 81 it was held by a Division Bench of that Court that:
The Warrant issued Under Section 5 is a special Warrant and is not a general warrant of search which is usually issued under the provisions of Criminal P.C. Section 5, Gambling Act, requires a Court to decide that a particular person should be entrusted with the execution of the warrant and therefore the operation of Sections 75 and 79, Criminal P.C. is automatically barred. Hence w.here a warrant is issued Under Section 5, Gambling Act to a particular officer and that officer instead of executing it himself endorses it to another officer and the warrant is executed by such another officer, the presumption Under Section 6 cannot be raised.
A.I.R. 1962 Manipur 20 lays down that.
The Public Gambling Act does not make gambling in a private house illegal. Before issuing a search warrant Under Section 5, the officer must have had reliable information that the public servant concerned was using or keeping instruments of gaming in the Government quarters in his occupation for his profit or gain. It was not enough therefore to say, particularly when the person concerned was a public servant and the house concerned was Government quarters in his occupation, that the house was used as a place of gambling. In the warrant the house should have been described and it ought to have been stated that the house was used as a common gaming house.
A.I.R. 1945 Nag 216 simply says that warrant issued Under Section 5 of the Gambling Act may be endorsed in ac cordance with the provisions of Sec 79 of the Code, which means that it accepts the principle that the warrant must be endorsed to a particular officer but it differs from A.I.R. 1948 Lah 81 in so far as that authority laid down that warrant cannot be further endorsed by the Police Officer Under Section 79 of the Code of Criminal Procedure.
8. A.I.R. 1929 Born 157 is a Division Bench authority and it takes the same view as A.I.R. 1948 Lah 81 and lays down that a warrant Under Section 5 of the Public Gambling Act is a special warrant. It authorises the officer or officers named therein to do all the things that are detailed in the warrant. It cannot be endorsed over to any other Police Officer of similar rank. The only person who can execute such a warrant is the officer who is named in the warrant.
9 A.I.R. 1951 Sau 55 goes one step further. It says that
A special warrant issued Under Section 6 should be one which is specially directed to a Police Officer by name. Where the name of the Sub-Inspector is not mentioned in the warrant and it is simply addressed to the S. I. of Police of a certain Police Station the warrant does not supply the requirements of a warrant Under Section 6 and the presumption Under Section 7 cannot arise.
Taking the highest common factor of all these authorities it can safely be said that a warrant under the Act must be endorsed to a Police Officer. As already indicated the authorities go so far to say that it must be endorsed to a Police Officer by name and secondly that it cannot be further endorsed in favour of another officer.
10. Another point which is necessary is that before issuing a warrant Under Section 5 of the Act, the officer issuing the warrant has to come to a conclusion that the particular place is used as a 'common gaming house'. The finding must be there that the house to be searched is used as a common gaming house otherwise the warrant will be imperfect and illegal. But the warrant in question does not contain any such finding. All that it says is that '......... ...... Keh bamakan mahedood masammi Piyaroo Wald Kripa Ram Sikahnagri norol mohallah men qamar bazi hoti hai
There is no finding that this house is used as a common gaming house. Further the warrant clearly states that 'you are directed to do this thing.' Who is this 'you' is not at all clear from this warrant and therefore this warrant, to say the lest, is not under ,the relevant law, is as such defective and has not been endorsed and does not fulfil the requirements of law as discussed in detail above. Therefore any proceedings taken on the ground of this warrant will be illegal and no prosecution can be launched against Piayroo and others Under Section 3/4 of the Act. Therefore the conclusion of the Chief Judicial Magistrate, Kathua so far as this case is concerned is perfectly sound though the grounds are different.
11. Now let us take the other case under the Penal Code against 13 accused persons, It is clear that the warrant on the basis of which the whole search and arrests were made was an illegal warrant. This is now a settled point in criminal law that no person can be prosecuted for an assault much less punished for committing assault on a Police Officer who tries to arrest him on the basis of an illegal warrant or escapes from his arrest. Authorities need not be multiplied but only a few may be mentioned viz. A.I.R. 1915 AH 442. A.I.R. 1921 Lah 236 (1); A.I.R. 1930 Lah 348 and A.I.R. 1944 Pat 222.
12. In A.I.R. 1915 All 442 a Police Officer conducted a search in the house of the accused, who did not reside within the limits of his jurisdiction. He was assaulted and the accused prosected for an offence Under Section 353, IPC It was held that no offence was committed because the officer was expected to comply scrupulously with the provisions of law particularly in search cases,
13. In A.I.R. 1921 Lah 236 (1) the warrant was addressed to 'the bailiff of the court' whoever that official may be, and was executed by Naib Nazir and process-servers without any endorsement by the bailiff. It was held that such service of the warrant was illegal.
14. In A.I.R. 1930 Lah 348 it was held that:-
If without any emergency for arrest contemplated by Section 151, a police officer arrests or attempts to arrest a person, the arrest or the attempt to arrest is not only not strictly justified by law but is illegal and the person who is arrested or attempted to be arrested is entitled to offer resistance. If further, such person apprehends hurt at the hands of armed constables sent for arrest and such constables use criminal force towards such person who retaliates it causing them simple injury it cannot be said that he has exceeded his right of private defence.
In A.I.R. 1944 Pat 222 a Sub-Inspector attempted to search a house without a search warrant. He was not authorised to investigate the offence. He had not recorded in writing his grounds for wishing to make the search nor did he specify the thing for which search was to be made. It was held:-
That the Sub-Inspector was not acting in the lawful discharge of his duty or in the execution of his duty as a Sub-Inspector so as to bring the acts of the accused persons who assumed threatening attitude within the mischief of Section 353.
I have mentioned only a few authorities otherwise there are a number of decided cases laying down the above principle. Therefore as the warrant upon which the search was effected and the arrests made, was illegal, any resistance offered by the accused in that case was justified and the accused could not be prosecuted for any of the offences mentioned in the challan.
15. An objection was taken by the learned Additional Advocate General that the word 'discharge' was wrongly used in the order of the Chief Judicial Magistrate. The accused should have been acquitted and a revision could lie only in one of the cases and not in both. But as the whole record is before this Court, this Court has ample power to pass any orders which are proper in the case.
16. The result is that the reference made by the Sessions Judge. Kathua, is rejected and the order of the Chief Judicial Magistrate, Kathua, is upheld and the accused in both the cases are hereby acquitted.