1. This is a criminal revision case filed against the conviction and sentence of the petitioners in C. A. No. 67 of 1951 on the file of the Sub-Divisional Magistrate of Bandar confirming the conviction and sentence in C.C. Nos. 70 to 76 of 1951 on the file of the Stationary Sub-Magistrate, Avanigadda.
2. The facts are: On 12-1-1951 the Sub-Inspector of Police of Avanigadda approached the Stationary Sub Magistrate of Avanigadda with a requisition, Ex. P. 2; in which he stated that he had reliable information that gambling on a large scale was going on in a common gaming house bearing door No. 21/4 in the fourth ward of Avanigadda belonging to Tangiralla Viswanadha Sastri and requested the issue of a search warrant to enable him to search the house. The Sub-Magistrate is stated to have put further questions also to the Sub Inspector of Police as would justify him to issue the warrant and he is said to have after satisfying himself, issued a search warrant, Ex. D. 1. This search warrant was issued on 12-1-1951. In pursuance of this warrant on 14-1-1951 the Sub-Inspector of Police of Avanigadda accompanied by two Panchayatdars of whom one has been examined as P. W. 1, viz., J.D. Jacob., correspondent of the C. B. H. School, Avanigadda, and another who has not been examined, is said to have raided the place. The seven accused persons who are the seven petitioners before us are stated to have been found playing cards for money in 'the house and the following were found by the Sub Inspector and Jacob. One set of playing cards numbering 52, money amounting to Rs. 152-5-10, two bed lights, two torch lights and two mats etc. The Station House officer arrested the seven accused and seized the above articles and money before the mediators and got a Panchayatnama, Ex. P. 1, written on the spot and charge-sheeted the accused.
3. The learned Stationary Sub-Magistrate's judgment shows that this case had been tried under the summons procedure because he writes in para 2 of his judgment that when the accused were called on to explain after the substance of the accusation against them were stated to them they stated that that day being the Sankaranthi festival day Thangirala Anjaneya Sarma was performing Satyanarayana Vritam and that on invitation from him they all went to his house and that the house was not a common gaming house and that they did not gamble there.
4. Gambling is not by itself an offence and it becomes one only when it takes place in a common gaming house or a public place, with the latter of which we are not concerned here. In order to make out the offence three things must concur. First of all the gambling must be in a common gaming house. "Common gaming house" has been defined as meaning any house in which cards are kept or used for the profit or gain of the person owning, occupying, using or keeping such house whether by way of charge for the use of instruments of gaming or of the house. The mere fact that occasionally people used to play cards in a house and perhaps for money does not necessarily make it a common gaming house. See - 'Emperor v. Subramania', AIR 1935 Mad 648. The term "common gaming house" must at least imply that the house was one used as a place of public resort and a common gaming house is one in which a large number of persons are invited habitually to congregate for the purpose of gaming and it makes no difference that the house was not open to all persons who might be desirous of using the same for gamine; 'In re: Chinniah Naidu', AIR 1924 Mad 729. Secondly under the definition of the common gaming house as defined in Section 3 Madras Gaming Act, the element of profit or gain is an essential ingredient and when this is negatived by the evidence in this case there is nothing to warrant a conviction of the persons found in such a house under Section 9 of the said Act which postulates of course the position of persons found gaming or present for the purpose of gaming in a common gaming house, All that Section 6 of the Act says is that the instruments of gaming and the persons found in a place searched under Section 5 shall be evidence that such place is used as a common gaming house and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Police officer or any of his assistants.
In this connection, I may point out that it is unnecessary that the Police Officer should see the persons in the act of gambling. The words "found gaming" have a wider meaning than "seen gaming". The word "found" is more akin to the word "discovered" in its nature and purpose and that therefore if people are found by the police in such circumstances that it is clear that when the police came upon the scene they were engaged in gaming the section applies: see -- 'Ghansham-das v. Emperor', AIR 1936 Sind. 126. It is only a piece of evidence in support of the prosecution for an offence under Section 9. But it would be wrong to treat it as conclusive evidence warranting a finding of guilty of the persons found therein without anything more; see --'In re Satyanarayana', 58 Mad L W 642. I have already pointed out that the mere fact that occasionally people used to play cards at a house and perhaps for money does not necessarily make it a common gaming house. This becomes all the more so when the day on which the play takes place, is Sankaranthi or other festival day when by local custom people play cards. The presumption of gambling on Diwali day is not so strong as the gambling at other times; -- 'Emperor v. Shankar Dayal', AIR 1922 Oudh 224. A person simply allowing the use of his house to gamblers during Diwali festival without any idea of demanding rent, etc., cannot be said to keep a common gambling house: -- 'Jai Narain v. Emperor', AIR 1919 All. 345. Gambling in Diwali day should not be considered to be an offence. 'Lachhman v. Emperor', AIR 1930 Oudh 403 where it was found that a certain number of Hindus were gambling in a house on a Satam day on which, according to the local customs Hindus used to gamble and that no non-Hindus were admitted to the premises, held that the presumption under Section 7 of the Bombay Gambling Act was sufficiently rebutted by the fact that it was the Satam day on which the gambling wag going on: -- 'Pabumal v. Emperor', AIR 1933 Sind. 42.
5. Therefore, we have to bear in mind these three points when we examine the evidence in this case to find out whether the offence had been made out. In this case none of the three conditions concur. First of all, there is no evidence whatsoever that this house was one used as a place of public resort or one in which a large number of persons were being invited habitually to congregate for the purpose of gaming. Secondly, there is not a title of evidence regarding the element of profit or gain which is an essential ingredient in the case. Thirdly, the gambling has taken place on Sankaranthi day and from the statement of the accused it would seem that on Sankaranthi day such gambling takes place in the houses of friends and there is no evidence contra. Therefore, none of the essential ingredients which have to be made out for sustaining a conviction under Section 9 of the Act has been made out in this case.
6. The learned advocate for the accused has pressed four other points in this case which require consideration at our hands as they arise in this type of cases with monotonous regularity. The first point taken by him is that there is no evidence showing as to how the Magistrate satisfied himself that the place in question was a common gaming house before he issued the search warrant. It was held in 'Subramania Iyer, in re', 69 Mad L, J 835 that a search warrant. issued by the Magistrate under Section 5, Madras Gaming Act, in the following terms:
"Whereas information has been laid before me that certain premises are being used as a common gaming house and gambling is also going on there and it has been made to appear that a search of the premises is necessary, I authorise you to search"
and the warrant was issued, on the basis of a letter brought by the Sub-Inspector of Police and after examining that Sub Inspector it was held that the warrant satisfied the provisions of Section 5 of the Gaming Act. In -- 'Bontanathila Naranapayya, In re', 1938-1-Mad L J 509 it was pointed out that there is no prescribed form for warrant under Section 5 and Section 5 does not require the Magistrate to record anywhere his reasons for believing any information the police may have given him nor even the fact that he had reason to believe that any place is used as a common gaming house, and all that it requires is that the Magistrate shall have reason to believe and that if he has, he can issue his warrant not in any particular form but his warrant giving authority to the police officer to do certain things. So point 1 fails.
7. The second point is that the Magistrate who issued the warrant is a person interested under Section 556, Criminal P. C. & should not have tried this case. Section 556 Crl. P. C. requires something more than the mere issue of a warrant, by the Magistrate in order to be considered as a party or personally interested precluding him from hearing the case. In fact the explanation gives an example, viz.,
"A Judge or Magistrate shall not be deemed a party or personally interested, within the meaning of the section to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred and made an enquiry in connection with the case."
The Illustration to the section states:
"A as Collector upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise Law. A is disqualified from trying this case as a Magistrate"
.
Therefore it depends upon the nature and extent of the enquiry made by the Magistrate before issuing the warrant as to whether he should or should not try the case. If the Magistrate had made an elaborate enquiry and had come to express his opinion before the issue of the warrant and his warrant results therefrom, then his own judicial conscience should suggest to him that he not being able to bring an open mind, should not try the case. This is the underlying reason in regard to the decisions in -- 'Khemchand v. Emperor', AIR 1938 Nag. 63 and -- 'Rajaram v. Emperor', AIR 1924 Lah. 247. In the former, it was held that it is ordinarily undesirable that a Magistrate who believes that the information that a house has been used as a public gambling house is credible should not try the case and in the latter it was held that the Magistrate issuing the warrant may be examined by the accused as to the source of his information and the filling up of the warrant- and such Magistrate should not try the case himself. See also -- 'Venkobarao v. Emperor,' 1948 Mad. W.N. 153. It all depends upon the circumstances of each case and in this case inasmuch as the magistrate is said to have questioned the Sub Inspector and elicited information to satisfy himself and then believed him and issued the warrant it would have been better if the case had been tried by another Magistrate. Records, however, do not show whether the Magistrate who issued the warrant was the Magistrate who tried this case, though it may be so because our Sub-Magistrates love to describe themselves in the third persons. The second point is not substantial.
8. The third point urged is that Exs. D. 5 and D. 6 give the house door No. 21/4 as standing in the name of Tagirala Kameswara Rao and not in the name of Venami Subbamma as contended by the prosecution and that Viswanatha Sastri has another house at Avanigadda. This point is without substance as on evidence it has been found that notwithstanding the omission in the warrant sufficient particulars have been given to identify that the house had been rented and was being occupied by T. Viswanatha Sastry. In -- 'Emperor v. Vallibhai Ibrahim', 34 Bom. L. R. 1447 it was held; that if a warrant wrongly described the property to be searched it is bad but that a description may be good in part and bad in part and the court may reject the bad part on the principle of 'Falsa demonstratio nonnocet.' Then in -- 'Radheylal v. Emperor', A. I. R. 1938 All. 252 it was held that if the description in the search warrant is otherwise adequate to identify the place without ambiguity, it is immaterial that the boundaries are not specified. Point 3 fails.
9. The fourth point is that the two mediators are not persons living in the vicinity and that one of them has not been examined. But this point is without any substance because the search under the Gambling Act is not covered by the provisions of Section 103, Cr. P. C. -- 'Mehadeo Prasad v. Emperor', A. I. R. 1934 Oudh 90; 'Khilinda Ram v. Emperor', AIR 1922 Lah 458 and in re Ramprasad Ganesh Prasad, AIR 1937 Nag 251. The search witnesses need not be residents of the locality and that they need not even be respectable. Such witnesses are not accomplices and their evidence does not require corroboration though it should be submitted to careful scrutiny: In re -- 'Ramprasad v. Ganesh Prasad', AIR 1937 Nag 251. The search under the Gambling Act cannot be said to be vitiated on the ground that the search witnesses live half a mile away from the accused's house: --'Madan Prasad v. Emperor', AIR 1934 Oudh 90. Absence of witnesses does not affect the admissibility but only the weight in regard to searches: -- 'Malak Khan v. Emperor', 1945 Mad W. N. (Cri) 140. Where there is reasonable explanation why witnesses at site were not employed, viz., on account of ignorance, illiterate people) partisan witnesses who would not stick to truth but are likely to be tampered with and would resile and turn hostile etc. search with the aid of other witnesses from more distant places is not illegal. -- 'Bishnath Raj v. Rex', -- 'Ippili Magatha v. Emperor', AIR 1920 Mad. 286 (1) and the -- 'State v. Simon Kaitan Fernandex'j 53 Bom LR 713. The fourth point also fails.
10. The convictions and sentences are set aside and the accused are acquitted and the fine amount, if any, collected from them will be refunded.