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Emperor v. Savalaram Kashinath Joshi And Others Accused.

Bombay High Court

Mar 17, 1947

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

This appeal was brought by the Government of the Province of Bombay against an order of the Additional City Magistrate, First Class, Poona, which had acquitted twelve accused persons charged under Ss. 4(a) and (b) and 5 of the Bombay Prevention of Gambling Act. On 11-11-1944 Sub-Inspector Gole obtained a special search warrant under Section 6 of the Bombay Prevention of Gambling Act from Deputy Superintendent of Police Mr. Crone and raided room No. 14 of house No. 672 in Bundhwar Peth. The Sub-Inspector reported that all twelve accused were gambling with playing cards in that room. Accused No. 1 was the occupant and charged under S.4(a) and (b); the remaining eleven were charged under S.5. The learned Magistrate refused to raise a presumption under Section 7 of the Act, holding that the warrant issued by Mr. Crone was not legal and valid for two stated reasons. The Government appealed against that refusal.

Legal Issues Presented

Whether the warrant issued under Section 6 of the Bombay Prevention of Gambling Act was valid where the issuing officer's preamble stated that a complaint on oath had been made and that there was reason to suspect the room was a common gaming house, but there was no independent evidence proving the satisfaction of the issuing officer as required by the proviso to S.6.
Whether Mr. Crone, the Deputy Superintendent of Police, was "specially empowered" to issue warrants under Section 6 after legislative amendments and the government notification of 1928 — i.e., whether the notification empowered Deputy Superintendents by virtue of their office or required empowerment by name.
Whether the presumption under Section 7 of the Bombay Prevention of Gambling Act could be raised in this case — specifically, whether instruments of gaming were shown to have been present when the raiding party entered the room, given evidence that the raiding party may have been delayed and that incriminating articles could have been concealed.

Arguments of the Parties

Accused / Defence Arguments

The learned Magistrate (and the defence) contended that the warrant was invalid because there was no evidence proving that Mr. Crone was satisfied, upon complaint on oath and such inquiry as he thought necessary, that the room was being used as a common gaming house — a condition precedent in the proviso to Section 6.
It was further argued that Mr. Crone was not "specially empowered" to issue warrants under Section 6 because the 1928 notification empowered Assistant or Deputy Superintendents at specified places generally by virtue of office, and that the 1936 re-enactment of Section 6 substituted the words "specially empowered" which, according to an authority relied on by the learned Magistrate (A.I.R. 1943 Sind 1073), meant empowered by name and not by virtue of office.
Mr. Desai for the accused pointed out that the 1928 notification predated the 1936 re-enactment of Section 6 and that no fresh notification was issued after 1936; hence he suggested the earlier notification might not suffice for the new wording of the section.
Regarding the Section 7 presumption, the defence emphasized the evidence that the raiding party was delayed (the door being bolted and requiring five to ten minutes' knocking, and entry occurring 10–15 minutes after suspicion), which would have allowed concealment of gaming instruments and money; therefore the panchnama's description of cards and money found in plain view was improbable.

Prosecution / Government Contentions (as reflected in the record)

The warrant itself contained a preamble stating that a complaint on oath had been made to Mr. Crone and that there was reason to suspect the room was a common gaming house; the prosecution relied on that recital and on the presumption under Illustration (e) to Section 114 of the Evidence Act that the issuing officer performed his duty correctly.
The prosecution's case, as reflected in the panchnama, was that the accused were discovered sitting and gambling at playing cards and had money lying before them; it asserted that instruments of gaming and money were found when the raiding party entered the room, which would trigger the statutory presumption under Section 7.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
34 Bom. L.R. 14471	Illustrates that a presumption under Section 114, Illustration (e) of the Evidence Act enables the court to presume that the officer issuing a warrant performed his duty correctly even where the warrant lacks an express preamble.	The court relied on this authority to support the proposition that the preamble in the warrant is not essential and that Section 114 raises a presumption of regularity which had not been rebutted here.
A.I.R. 1946 Mad. 4652	Applied the same view that the presumption of regular discharge of duty under Section 114 suffices in absence of independent evidence of the issuing officer's satisfaction.	The court referred to this recent case as supporting the conclusion that the warrant need not itself prove the issuing officer's satisfaction where the Section 114 presumption applies.
A.I.R. 1943 Sind 1073	Interpreted the phrase "specially empowered" to mean empowered by name (as understood by the learned Magistrate).	The court considered this interpretation but rejected the narrow reading; it concluded that "specially empowered" can include empowerment by virtue of office, consistent with other statutory provisions and authorities.
16 Cr. L.J. 2684	Discussed the distinction between "specially empowered" and "generally empowered" in the context of Section 3 of the Opium Act, 1878.	The court used this authority to illuminate the distinction and to justify treating a person empowered by virtue of holding a particular office as "specially empowered."
A.I.R. 1924 Mad. 2565	Held that a notification empowering officials by virtue of their office at specified places constituted being "specially empowered" under the statute in question.	The court cited this decision as supporting the construction that notifications which empower office-holders at specific places amount to "special empowerment" within the meaning of the statutory phrase.

Court's Reasoning and Analysis

The court's analysis addressed sequentially (a) the validity of the warrant, (b) whether the issuing officer was specially empowered, and (c) whether the statutory presumption under Section 7 could be raised on the facts.

1. Validity of the warrant and compliance with proviso to Section 6:

- The Magistrate had held the warrant invalid because there was no evidence proving Mr. Crone's satisfaction on the basis of a complaint on oath as required by the proviso to Section 6. The court examined the warrant's preamble, which recited that such a complaint had been made and that there was reason to suspect the room was a common gaming house.

- Relying on Illustration (e) to Section 114 of the Evidence Act and on cited authorities (including the Bom. L.R. and A.I.R. 1946 Mad. decision), the court concluded that there is a rebuttable presumption that the officer issuing the warrant performed his duty correctly and that the presumption had not been displaced in this case. The court accepted that while it is desirable the warrant show the condition precedent on its face, it is not essential if Section 114's presumption applies.

2. Whether Mr. Crone was "specially empowered" to issue warrants under Section 6:

- The court traced the legislative history: prior wording required empowerment "by Government in this behalf"; the 1926 amendment substituted certain words and a 1928 notification (No. 3842/2, H.D.) empowered Assistant and Deputy Superintendents at specified places (including Poona City) by virtue of their office to issue warrants.

- The 1936 amending Act replaced the section and altered "empowered" to "specially empowered." The learned Magistrate had relied on A.I.R. 1943 Sind 1073 interpreting "specially empowered" narrowly (to mean by name). The court rejected that narrow meaning, observing that the words derive from sub-s. (1) of Section 39 of the Criminal Procedure Code, which contemplates empowering persons "specially by name or in virtue of their office, or classes of offices generally by their official titles."

- The court explained the distinction between "specially empowering" and "generally empowering": the former can be either by name or by virtue of office at particular locations (constituting a specific selection), while the latter denotes a broad class empowerment. The court found the 1928 notification to be consistent with the notion of special empowerment by virtue of office for officials at particular places.

- The court also relied upon Section 16 of the Bombay General Clauses Act, 1904, which provides that where a Bombay Act confers power to appoint a person to fill any office or execute any function, such appointment may be made either by name or by virtue of office unless expressly provided otherwise. Moreover, Section 25 of the Bombay General Clauses Act was invoked to hold that a notification issued under the old section continues in force insofar as it is not inconsistent with the provisions reenacted by the 1936 Act.

- On this basis the court concluded that Mr. Crone, as Deputy Superintendent of Police, Poona City, was "specially empowered" to issue warrants under the reenacted Section 6 and that the 1928 notification remained operative and valid.

3. Applicability of the presumption under Section 7 (instruments of gaming present at entry):

- The court recognized that if the room had been searched under a valid warrant, the provisions of Section 7 were in point and would permit raising a presumption that the room was used as a common gaming house. However, the court emphasized that before such a presumption can be invoked it must be established that instruments of gaming were actually found when the raiding party entered the room.

- The evidence concerning the moment of entry was conflicting and unsatisfactory. The Sub-Inspector said the door had been bolted and had to be forced open; Sakharam (a witness) said the party had to knock for five or ten minutes and in cross-examination admitted that entry occurred ten to fifteen minutes after the inmates suspected their presence. The court observed that this interval would have sufficed to conceal incriminating articles, if any, and to give an innocent appearance.

- The panchnama, however, stated that all twelve accused were found "sitting round on a carpet, and gambling at playing cards," and that cards and money were thrown and lay about in plain view. The court found this account inherently improbable if the inmates had had ten to fifteen minutes to hide such items; the court concluded that either the panchnama was false or, if true, the boldness displayed suggested an innocent game rather than gambling of the kind contemplated by the statute.

- The learned Magistrate disbelieved the panchnama's description; the court agreed and held that the Section 7 presumption had been rebutted on the available evidence.

4. Result of the analysis:

- Because the court accepted that the warrant was valid and Mr. Crone was specially empowered, it did not sustain the first two objections to the warrant's legality. Nevertheless, on the crucial factual point of whether gaming instruments were actually found on entry, the evidence did not support raising the statutory presumption under Section 7. Consequently, the acquittal of the accused was upheld.

Holding and Implications

Appeal dismissed.

Direct consequences:

The appeal by the Government was dismissed and the acquittal of the twelve accused by the Additional City Magistrate was upheld.
The court held that (a) the warrant issued by Deputy Superintendent Mr. Crone was legally valid and that the presumption under Illustration (e) to Section 114 of the Evidence Act applied, and (b) Mr. Crone was "specially empowered" to issue warrants under Section 6 by virtue of his office and the continuing force of the 1928 notification read with the Bombay General Clauses Act provisions.
Despite the warrant's validity, the statutory presumption under Section 7 could not be raised because the evidence did not satisfactorily establish that instruments of gaming were found at the time the raiding party entered the room; the panchnama's account was disbelieved and the possibility of concealment during the delay undermined the prosecution's claim.

The opinion does not articulate any broader doctrinal consequences beyond these direct effects on the parties; its determinations are applied to the facts of this case to uphold the acquittal while validating the procedural power exercised in issuing the warrant.

Show all summary ...

Stone, C.J:— I have had the opportunity of reading the judgment about to be delivered by my brother Lokur, J. I am in entire agreement with it and have nothing further to add.

2. Lokur, J.:— This is an appeal by the Government of the Province of Bombay against the order of the Additional City Magistrate, First Class, Poona, acquitting the twelve accused who were charged under Ss. 4(a) and (b) and 5, Bombay Prevention of Gambling Act. The Sub-Inspector of Police, Mr. Gole, received information that gambling was going on in room No. 14 of house No. 672 in Bndhwar Peth. He obtained a special search warrant under Section 6 of the Bombay Prevention of Gambling Act, 1887, from the Deputy Superintendent of Police, Poona City Sub-Division, Mr. Crone, and raided that room on 11-11-1944. He found all the twelve accused gambling with playing cards there. He arrested them, made a panchnama and sent all the twelve accused for trial. It was conceded that accused 1 was the occupant of the room and was, therefore, charged under S. 4(a) and (b) of the Act, while the other eleven accused were charged under Section 5 of the Act. The learned Magistrate refused to raise a presumption under Section 7 of the Act on the ground: that the warrant issued by Mr. Crone was not legal and valid for two reasons. The first ground of attack on the validity of the warrant is that there is no evidence to prove that Mr. Crone, the Deputy Superintendent of Police, who issued it, was satisfied, upon any complaint made before him on oath and upon making such inquiry as he thought necessary, that there were good grounds to suspect that the said room was being used as a common gaming house. This condition precedent is laid down in the proviso to S. 6, and unless it is fulfilled, the warrant would be ultra vires. The warrant issued by Mr. Crone in this case commences with a preamble that such a complaint on oath had been made to him and that there was reason to suspect that the room of accused 1 was being used as a common gaming house. But the learned Magistrate says that such a statement does not prove itself and that some evidence is required to prove it. But according to Illus. (e) to Section 114 of the Evidence Act, it is to be presumed that the officer issuing the warrant has performed his duty correctly, and that presumption has not been rebutted in this case. In 34 Bom. L.R 14471, such a presumption was raised even though the warrant had no such preamble as the warrant in the present case and Beaumont C.J said (p. 1448):

“It, is, I think, usually desirable that a warrant issued, under the terms of a particular statute should show on its face that the conditions precedent required by the statute have been complied with, but it is not in my view essential that the warrant should so show. There is a presumption under Section 114, Illus. (e) of the Evidence Act, which enables us to presume that the officer issuing the warrant has performed his duty correctly, and until that presumption is displaced, it is not, in my opinion, necessary for the officer to give any evidence in the matter.”

3. I respectfully agree with this. The same view was taken by Kuppuswami Aiyar, J. in the recent case in A.I.R 1946 Mad. 4652. The warrant must, therefore, be held not to be invalid for want of evidence to prove that the requirement of the proviso to S. 6 was complied with.

4. The second objection urged against the validity of the warrant is that Mr. Crone was not specially empowered to issue a warrant under S. 6. Prior to 1926 a warrant under S. 6 could be issued only by a Magistrate of the First Class or a District Superintendent or an Assistant Superintendent “empowered by Government in this behalf.” By the amending Act 5 tv] of 1926, the words “Assistant or Deputy Superintendent” were substituted for the words “Assistant Superintendent.” Then by Notification No. 3842/2, H.D, dated 23-8-1928, Assistant Superintendents and Deputy Superintendents at six specified places including the Poona City were by virtue of their office empowered to issue warrants under S. 6. Then the amending act 1[i] of 1936 replaced the old section by an entirely new one, and the change, with which we are concerned in this appeal, was that the word “empowered” was altered to “specially empowered.” I do not think that any significance was intended to be attached to the change in the language. In A.I.R 1943 Sind 1073, relied upon by the learned Magistrate, the expression “specially empowered” was interpreted to mean specially empowered by name and not by virtue of his office. If so, the notification of 1928 which empowers any Assistant or Deputy Superintendent posted at the six specified places would be ultra vires, and with all respect, I do not think that the expression is intended to carry that meaning. The words are evidently taken from sub-s. (1) of Section 39 of the Cr PC which says:

“In conferring powers under this Code the Provincial Government may, by order, empower persons specially by name or in virtue of their office, or classes of offices generally by their official titles.”

5. This throws a flood of light on what is meant by “specially empowering” persons. It emphasizes the distinction between “specially empowering” and “generally empowering.” When a class of officials is invested with powers to try certain offences or to do certain functions, it would appear that they are “generally empowered,” but if any persons are so empowered by name or in virtue of their offices, they are said to be “specially empowered.” This distinction was clearly pointed out in 16 Cr. L.J 2684, where Section 3 of the Opium Act, 1878, had to be interpreted. In the present case although Mr. Crone was not empowered by name, yet he was empowered in virtue of holding a particular office, namely that of the Deputy Superintendent of Police, Poona City.

6. In the Sind case cited above, David, C.J observed that the words “especially empowered” implied the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power was to be conferred, and that to authorise the Deputy Superintendent of a particular place, whoever he might be, however numerous the successors to that office might be, would be to go against the principle of selection embodied in the section and “to be something in the form or nature of a general and not a special power.” I respectfully think that when a particular place was selected by Governor, it is conceivable that Government intended to post there only such Assistant or Deputy Superintendent as was competent to exercise the power under Section 6 of the Act. This would be covered by the words “in virtue of their office” used in Section 89 of the Cr PC. This construction of the words “specially empowered” was adopted in A.I.R 1924 Mad. 2565, In that case a notification of Government empowered the second class Magistrates mentioned therein by virtue of their office to try cases under the Opium Act, and it was held that the second class Magistrates at those specified places were “specially empowered” within the meaning of Section 3 of the Act.

7. Moreover Section 16 of the Bombay General Clauses Act, 1904, provides:

“Where by any Bombay Act, a power to appoint any person to fill any office, or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office.”

8. This shows that Government can appoint any Assistant or Deputy Superintendent to exercise the function of issuing warrant under Section 6 of the Bombay Prevention of Gambling Act, not only by name but also by virtue of office.

9. Mr. Desai for the accused pointed out that the notification of Government was issued in 1928, but by the substitution of a new S. 6 by Bombay Act 1[I] of 1936 the of section was virtually repealed and a new section took its place, yet no similar notification was issued under the new section. But under Section 25 of the Bombay General Clauses Act, 1904, the notification issued under the old section shall.

“so far as it is not inconsistent with the provisions reenacted, continue in force, and be deemed to have been made or issued under the provisions so reenacted.”

10. It follows, therefore, that the notification of 1928, which contains nothing inconsistent with the new Section 6 of the Act, is still in force, and Mr. Crone, holding the office of the Deputy Superintendent of Police, Poona City, must be held to have been “specially empowered” to issue warrants under that section. The warrant issued by him was, therefore, legal and valid.

11. The room of accused 1 having been searched in execution of that warrant, the provisions of Section 7 of the Act are applicable, but before a presumption that the room was lied as a common gaming house can be raised under that section, it must be proved that instruments of gaming were found there when the raiding party entered the room. The evidence on that point is far from satisfactory. The Sub-Inspector says that as soon as accused 1 saw his party approaching, accused 1 closed the door of the room from inside and bolted it, and that it had to be opened by force. The patch Sakharam says that the door had to be knocked for five or ten minutes before it was opened. In his cross-examination he says that he and others entered the room 10 or 15 minutes after their presence was suspected by the inmates of the room. If be, this interval was more than enough for them to conceal the instruments of gaining, if any, and keep up an innocent appearance. Yet, according to the panchnama, when the raiding party entered the room all the twelve accused were discovered “sitting round on a carpet, and gambling at playing cards,” and some of them threw the cards and the money on the in sheet outside the window and also in various places inside the room, and that every one of the twelve accused had various sums of money “lying in front of each one of them on the carpet at the place where they were sitting.”

12. It is impossible to believe that the accused would have allowed such a scene to present itself to the raiding party, when they had ten or fifteen minutes to hide away all the incriminating articles before the party entered the room. Either the panchnama is false, or if it is true, the very boldness with which the accused were playing shows that they were not gambling but were engaged in an innocent game of cards, and the presumption arising under S. 7 is thereby rebutted. The learned Magistrate does not believe that the cards and the money were lying in the way described in the panchnama. I do not think that there is any reason to take a different view. On this ground the acquittal of the accused must be upheld, and the appeal dismissed.

13. Appeal dismissed.