- (1.) THIS is a reference by the learned Sessions Judge, Jhunjhunu, in case under the Rajasthan Public Gambling Ordinance, 1949 (hereinafter to be referred to as the Gambling Ordinance ). It has been recommended that the conviction and sentence of Bajranglal alias Rajja under sec. 3 and that of Umardin, Wazir, Nathmal, Nandlal and Jaidev under sec. 4 of the Gambling Ordinance be set aside.
(2.) THE case was summarily tried by Shri Karansingh Magistrate First Class, Chirawa. THE allegation against the accused was that Shri Jagannath Prasad S. H. O. , Chirawa, searched the house of Bajranglal on the 21st of February, 1954 under a warrant from Shri Hazarichand. Extramagistrate,chirawa, under sec. 5 of the Gambling Ordinance and found the five accused, Umardin, Wazir, Nathmal, Nandlal and Jaidev gambling with cards and Bajranglal realising commission on account of the said gambling. All the accused admitted that they were in the room occupied by Bajranglal at the time the S. H. O. went there on the date of occurrence, but pleaded that they were there because music was being played. THE learned trial Magistrate was not satisfied that Shri Jagnnath Prasad could validly search the house under the warrant dated the 14th of November, 1953, which had been issued be Shri Hazarichand, Extra Magistrate, Chiraw, a, to Shri Sham Bahadur the then S. H. O. , Chirawa. It was also held that there was nothing to show that the warrant was issued by the Magistrate upon credible information and after such inquiry as the Magistrate thought necessary as required by sec. 5. It was, therefore, held that search was not valid under the said warrant, but the learned Magistrate was satisfied from other evidence that Umardin, Wazir, Nathmal Nandlal and Jaidev were engaged in gambling at the time the Sub-Inspector Shri Jagannath Prasad visited the house and Bajranlal was realising commission. Disregarding the presumption under sec. 6,themagistrate convicted all the six accused on the other evidence regarding actual gambling and realisation of commission, which was produced before him. All the six accused went in revision and the learned Sessions Judge, Jhunjhunu, has agreed with the learned Magistrate that the search was illegal on the authority of the warrant in question. He has held that the warrant originally stood in the name of Sham Bahadur, the then S. H. O. , but afterwards some interpolation was made and the name of Sham Bahadur was cut off and only the words S. H. O. substituted thereof. He consequently held that it would not be said that the warrant was duly addressed by designation and therefore, any S. H. O. of Chirawa could search the house thereunder. He also held that there was nothing to. show that the warrant was issued by the Magistrate on credible information and after making such inquiry as he thought necessary under sec. 5 of Gambling Ordinance. He has consequently made the reference that the convictions and sentences of all the accused are illegal. An explanation was called for by the trial Magistrate under Rule 80 of the Rules of this Court and he has submitted an explanation that the convictions and sentences are quite proper as they are not passed upon the presumption under sec. 6 of the Gambling Ordinance, but on the evidence of actual gambling and the realisation of gambling commission. He has cited certain rulings in support of his view. The parties have not appeared. I have gone through the judgments of both the lower courts and the explanation of the learned Magistrate and also though the law on the point. There being a concurrent finding of both the lower courts that the warrant in question was not legal inasmuch as it was not issued on credible information and after necessary inquiry and that no search could be validly made by Shri Jagannath Prasad under it also because it was not addressed to him but to Shri Sham Bhadur, I need not go into the question whether the warrant was valid or not and take it that the warrant was illegal and the search made thereunder by Shri Jagannath Prasad was not valid. The question however, is that evidence of actual gambling and the realisation of commission was produced in this case, and it was believed by the learned Magistrate. He was the judge of facts and in revision it is not proper for this Court to go into this question of fact unless it could be shown that his finding was based on no evidence or the evidence was not considered. I find from the judgment. of the learned Magistrate which alone can be the record in a summary case that he has considered the evidence of the witnesses produced and that it came out from the evidence of those witnesses that when Shri Jagannath Prasad went into the house of Bajranglal, it was found that the five accused, Umardin. Wazir, Nathmal, Nandlal and Jaidev were actually gambling with cards and that gambling commission was being realised by Bajranglal. Two witnesses Hariram and Niranjan were produced who stated that they were also gambling with cards along with Umardin, Wazir, Nathmal, Nandlal and Jaidev and that commission was being realised by Bajranglal These two witnesses may be taken to be accomplices but their evidence was corroborated in material particulars by the evidence of Shri Jagannath Prasad S. H. O. and Shri Ramniwas Head Constable, It was also corroborated by the fact that the cards were actually found on the spot and Bajranglal as well as other accused were found with some cash. The learned Magistrate has discussed all this evidence and he had before his mind that corroboration was necessary in material particulars of the evidence of Hariram and Niranjan. It was help in the case of empress vs. Musa (l), that even if the presumption under sec. 6 is not available on account of illegality of the search warrant, conviction can be maintained if the other evidence were in, itself good and undiscredited. In the case of Empress vs. Mansingh (2), conviction was not set aside simply on account of the illegality of the warrant which was not shown to have caused any prejudice to the accused or occasioned any failure of justice within the meaning of sec 537 of the Criminal Procedure Code and it was maintained because there was other evidence about gambling. In the case of Emperor vs. Abasbhai Abdulhussein (3) it was held that - "if the warrant under which a search is made is bad then the presumption under sec. 7 of the Act (sec. 7 being similar to sec. 6 of the-Gambling Ordinance) cannot be made, but the mere fact that such presumption cannot be raised does not prevent the prosecution from establishing by evidence in the ordinary way that on the facts proved the accused were guilty of the offences charged". In the case of Miran Baksh vs. Emperor (4), it was held that - "the effect of a search warrant being illegal is that no presumption such as arises under sec. 6 can be made in favour of the prosecution. But a conviction under sec. 3 based upon legal evidence is not vitiated merely because of the defects and irregularities in the warrant. In the case of Darab vs. Emperor (5), it was held that - "if the search warrant is illegal no presumption under sec. 6 arises that the house is a common gaming house or that the persons present in the house are there for the purpose of gaming. " But there being other evidence independent of the presumption, conviction was maintained. The learned Sessions Judge has not viewed this case from this angle. He has simply thought that because the warrant of search was illegal and no presumption could be raised under sec. 6, it was not necessary to look into the matter if the judgment of the trial court could be supported on the evidence of actual gaming and realisation of commission produced in the case. The conviction cannot, therefore, be interfered with and the sentence too is very moderate and does not require any modification. The reference is rejected. .;