Patkar, J.:—
In this case the Presidency Magistrate Second Court, Bombay, has made a reference, under section 432 of the Criminal Procedure Code, submitting for decision certain points of law arising in a ??? pending before him.
One Ibrahim Ismail made a complaint on oath ??? September 27, 1928, before the Commissioner of Police Bombay. Instead of issuing a special warrant under section 6 of the Bombay Prevention of Gambling Act, 1887, he personally raided the premises in company with other Police officers. The Commissioner entered the main entrance and Sub-Inspector Salasker entered the side gate and arrested accused Nos. 2 and 3. Police Constable No. 714.C.T. arrested accused No. 4. R.B Sabaji arrested accused No. 1 and Inspector Achrekar and Havaldar 932.K arrested accused Nos. 5, 6 and 8. Accused No. 7 was arrested by another policeman. Panchnamas were made of the articles found in the passage and on the person of the accused. Twenty-seven slips were found in the passage bearing the names of the horses, the amount of bet, win or place, and single or double. The punters got receipts for the payments made to the bookmakers in the form of printed cart chits with numbers thereon which were inserted in the slips for identification. Three cart chits were found in the passage, and four cart chit books were also found in the passages. Currency notes of the value of Rs. 145 and a money-bag dropped by accused No. 3 were found in the passage.
The learned Magistrate instead of making a reference ??? this Court ought to have decided the points involved ??? this case leaving the parties aggrieved to approach ??? Court in case they were dissatisfied with his decision.
The first question referred by the learned Magistrate ??? whether offences punishable under section 4 of the Bombay Prevention of Gambling Act IV of 1887 modified up to date are cognizable offences in ??? cases. In Emperor v. Fernad it was held at as a First Class Magistrate has under section 6 of the Gambling Act IV of 1887 power to give authority, under a special warrant, to certain Police officers to make arrest and search, the Legislature must be presumed to have intended that the First Class Magistrate should have authority to make the arrest and the search himself, if necessary, according to the principle of the legal maxim that “whatever a man sui juris may do of himself, he may do by another”, and its correlative that “what is done by another is to be deemed done by the party himself.” In Emperor…Prosecutor; v. Jaffur Mahomed…Accused. the learned Judges were not prepared to base their judgment upon a view of section 6 contrary to the view taken in Fernad's case. In Emperor v. Abasbhai it was held by Marten and Madgavkar, JJ., following the decision in Queen Empress v. Deodhar Singh, that the offences under sections 4 and 5 were cognizable offences within the meaning of section 4(f) of the Criminal Procedure Code rather than non-cognizable offences under sub-clause (n) of that section. In Emperor v. Chandri it was held ??? Fawcett, J. that there were serious limitations on the power of arrest under section 10 of the Bombay ??? of Prostitution Act XI of 1923, and that any ??? where those conditions were not complied with could not be described as a cognizable case. Under section 6 of the Gambling Act and on the authority of the decision in the case of Emperor v. Fernad the Commissioner ??? Police could arrest without a warrant, and the ??? “a Police officer may arrest” in section 4(1)(f) do ??? mean every or any Police officer, and provided that superior Police officer has power to arrest without warrant, the offence is a cognizable offence. It ??? further held by Madgavkar, J. in Emperor v. Abasbhai that the report of the Police officer could have been treated in that case as a complaint. Both the learned Judges came to the conclusion that the Magistrate had jurisdiction as the offences were cognizable, and that the case fell under section 190(b) of the Criminal Procedure Code. The learned Magistrate ought to have followed the clear ruling of this Court in Emperor v. Abasbhai.
It is urged, however, on behalf of the accused that the remarks of Chandavarkar, J. in Fernad's case were obiter, and that, according to the definition of a cognizable offence in section 4(1)(f) of the Criminal Procedure Code, the offences under sections 4 and 5 of the Gambling Act would not be cognizable offences as a Police officer could not arrest in accordance with the second schedule of the Criminal Procedure Code or under any law for the time being in force, without a warrant. It is further urged that in Schedule II, relating to offences under other ??? an offence punishable with imprisonment for less than one year or with fine only is a non-cognizable offence, and under section 6 of the Gambling Act no express power is given to the Commissioner of Police to arrest or to make the search himself as is conferred by section 5 of the Bengal Public Gambling Act II of 1867, ??? that the case of Queen-Empress v. Deodhar Singh, followed in Emperor v. Abasbhai, is based on section 5 of the Bengal Act. section 6 of the Gambling Act is correctly interpreted by the decisions referred to ??? which are no less binding on us than on the magistrate. The words “under any law for the time ??? in force” in section 4(f) of the Criminal Procedure Code, are, however, in my opinion, wide enough to include ??? express or implied provision of any law or enactment and would cover the application of the maxims qui facit per alium facit per se (whatever a man may do himself, he may do by another) and qui per alium facit per seipsum facere videtur (he who does an act through another is deemed in law to do it himself) to any provision of any enactment, in order to arrive at the true intention of the enactment. Though the Act was amended several times since the decision in Fernad's case, the Legislature has not expressed its true intention to be otherwise than that determined by judicial decisions. It is to be presumed that there is no intention to prevent the application of such maxims unless there is something in the language or in the object of the statute to the contrary. See Maxwell on the Interpretation of Statutes, 6th Edition, page 134.
The second question is, whether the arrests are illegal. It is contended that the arrests are illegal on the following grounds:—(1) that there was no complaint on oath (2) that the passage is not “a place” within the meaning of section 6 of the Gambling Act, (3) that the Commissioner did not satisfy himself that there were good grounds for the suspicion, and (4) that the Commissioner could not authorise the constables to arrest, an the arrests by Sub-Inspector Salaskar were not in the actual presence of the Commissioner.
The first point arising for decision is, whether Exhibit A is a legal complaint on oath before the Commissioner of Police. According to the decision ??? Emperor v. Tribhuvan Motiram…Accused No. 2* ??? Police was competent to administer an oath to Ibrahim Ismail under section 6 of the Gambling Act. It is urge however, that though the word “complaint” section 6 is not to be understood in a technical ??? Ibrahim who made the complaint to secure a reward ??? not be considered to be a person who had any ??? and therefore was not competent to make a complain Section 6 does not impose any limitation on the power of any person to make a complaint on oath to the Commissioner of Police. In In re Ganesh Narayan Sathe it was held that as a general rule any person, having knowledge of the commission of an offence, may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. The objection, therefore, raised on this point on behalf of the accused is, in my opinion, without substance.
The second question arising for decision is, whether the passage is a “place” within the meaning of section 6 of the Gambling Act. In Emperor v. Jusub Ally it was held by Batty, J. that the machhwa must be considered to have been a place within the meaning of section 4 rather than of section 12, being more of the nature of a house or room than of a place ejusdem generis with a street or thoroughfare. In Emperor v. Fattoo Mahomed, a small open space surrounded by houses on all sides and accessible only by a narrow lane was held to be a place within the meaning of section 4 of the Gambling Act as being appropriated for the business of betting. There appears to be no conflict in ??? decisions in Jusub Ally's case and Fattoo Mahomed's case to justify a reference on this point. In Powell v. Kempton Park Racecourse Company Lord ??? of Hereford held (p. 194):—
“Speaking in general terms, whilst the place mentioned in the Act must be some extent ejusdem generis with house, room, or office, I do not think at it need possess the same characteristics; for instance, it need not be ??? in or roofed. It may be, to some extent, an open space. But certain ??? must exist in order to bring such space within the word ‘place’. ??? must be a defined area so marked out that it can be found and recognised ??? ‘the place’ where the business is carried on and wherein the bettor can found.”
In Eastwood v. Miller it was held that an enclosed ??? though uncovered, might as well be “a place” ??? the Act as a place either covered with canvas as a tent or a light structure as a building. It is a question of fact in each case whether the business of betting is localized so that people may fairly resort to the place where it is carried on. I may also refer in this connection to the case of Brown v. Patch. It would be for the Magistrate to consider on the evidence whether the passages are “a place” within the meaning of the Act. Having regard to the decision in Emperor v. Fattoo Mahomed, there appears to be no ground for any doubt justifying a reference on this point by the Magistrate.
The third point is, whether the Commissioner satisfied himself that there were good grounds for the suspicion that any place is used as a common gaming house. It is a question of fact which the Magistrate has to decide on the evidence in the case and is not a question of law which should have been referred by him to this Court.
The fourth point is, whether the arrests by the constables or by Sub-Inspector Salaskar are illegal Under section 6 of the Gambling Act, the Commissioner of Police has the power to give authority, by special warrant under his hand, to any Inspector, or other superior officer of Police, of not less rank than a Sub Inspector
(a) to enter, with the assistance of such persons ??? may be found necessary, by night or by day, and ??? if necessary, any such house, room or place, an
(b) to take into custody and bring before a Magistrate all persons whom he finds therein, whether they are the actually gaming or not.
According to the authorities to which I have already referred the Commissioner of Police had the power enter with the assistance of such persons as may found necessary and to arrest the persons whom he found therein. It is not possible for the Commissioner of Police alone, if he intended to raid the premises, to arrest a multitude of persons. It is, therefore, provided by the Legislature that he may enter with the assistance of such persons as may be found necessary. Mr. Salaskar in his evidence says that he was instructed to raid the premises with his men by the rear gate simultaneously with the raid from the main gate by the Commissioner of Police. The arrests, therefore, by Salaskar were under the express authority of the commissioner of Police and in the presence of the Commissioner though not within his view. I think that ??? arrests by Mr. Salaskar were not illegal. It is not contended before us that arrests by any other Police officer were illegal. The point loses any importance in this ??? as the offences are cognizable and the Magistrate as jurisdiction to investigate the case under section 190 ??? (b). It is not, therefore, necessary to go into the question urged by the learned Government Pleader that ??? on the assumption that the offences were not cognizable the Magistrate had jurisdiction to treat the report the Police officer as a complaint under section 190 ??? (a), according to the view of Madgavkar, J. in Emperor v. Abasbhai and the decision in Emperor v. ???.
The last question is, whether there was any gaming all when the meeting was postponed. It appears ??? Exhibit T that the race which was to be run on september 29 was postponed to October 6. It is ??? on behalf of the accused that in a wager both the ??? must contemplate the determination of the ??? uncertain event as the sole condition of their contract, and as in the present case the future uncertain ??? did not happen, there was no wager, and reliance is placed on Anson on Contract, pages 230 and 231, and the case of Ellesmere (Earl) v. Wallace. In the present case, the charge against the accused was under sections 4(a) and 4(c) and not under section 5 of the Gambling Act. The question, therefore, does not really arise in the present case. In Halsbury's Laws of England, Vol. XV, page 267, paragraph 549, it is stated as follows:—
“A wagering contract has been described as one by which two persons, professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependent upon the determination of such event one shall win from the other, and that other shall pay or hand over to him a sum of money or other stake; neither of the contracting parties having any other interest in that contract than the sum or stake which he will so ??? or lose, there being no other real consideration for the making of ??? contract by either of the parties.”
A bet is defined in Thacker v. Hardy and Carlill v. Carbolic Smoke Ball Company. A bet need not be a regards the issue of a future uncertain event and may ??? upon a past event, e.g, whether a particular horse ??? race in a certain year. In such a case the bet is upon the accuracy of the information, belief or memory of the parties and the event is the proof that one or the ??? was accurate. A person may bet against what ??? believes the issue will be, e.g, a man may bet against horse which he believes will win in order to ??? himself against loss in either event. In Ellesmere ??? v. Wallace the jockey club was not interested in ??? result of the races and the provision relating to ??? prizes was in no way dependent upon the result of ??? races as they were to be given in any event, and the ??? event outstanding between the parties, viz., whether the defendant's horse would run in the race ??? solely on the volition of the defendant and not upon determination of any future event.
The evidence in the present case shows that the ??? which was to be run on September 29 was adjourned October 6 early in the morning, and still in the afternoon of that day bets were entered into with regard to the meeting which had already been adjourned, and the bets were to remain good for the race that was to be run on October 6. The parties did not intend either that the race should run on September 29 or that a particular horse should run that day, as the condition of the agreement. I think that even though the race was postponed the agreement to bet would be a wager and would amount to an offence under section 5 of the Gambling Act. The question in the present case is whether on the evidence accused No. 1 having the use of a room or place in the premises of the Akbar Manufacturing and Press Company did use the same for the purpose of a common gaming house, and accused Nos. 2 to 8 did assist accused No. 1 in conducting the business of the said common gaming house, and thereby accused No. 1 committed an offence punishable under section 4(a) and accused Nos. 2 to 8 committed an offence punishable under section 4(c) of Act IV of 1887, and the learned Magistrate has to find on the evidence whether the room ??? the place in question is a common gaming house. That question would depend on the evidence in the case and the fact that a particular race was adjourned on September 29 to October 6 does not affect the question.
I would, therefore, answer the reference, on the points referred to, as stated above.
Wild, J.:—This is a reference under section 432 of the Criminal Procedure Code by the Presidency Magistrate, Second Court, in which he refers five questions for ??? opinion of this Court.
The prosecution out of which this reference arises was the under section 4 of the Bombay Prevention of Gambling Act of 1887 and the facts are shortly these. ??? September 27, 1928, one Ibrahim Ismail's sworn statement was taken by the Commissioner of Police, Bombay, and he complained that the premises of the Akbar Manufacturing Company were being used as a bucket shop or office for receiving bets on horses. On September 29, the Commissioner of Police, without issuing a warrant under section 6 of the Bombay Prevention of Gambling Act to any other Police officer to search the premises, himself raided the premises. He entered by the front door and Sub-Inspector Salasker entered by the rear or side door. The premises consist of buildings with two open passages at right angles one to the other. It was found that the passages were being used for the purpose of betting on horse races that were to take place that day at Poona. Arrests were made; some of the accused were arrested by Sub-Inspector Salasker and by one of the Police constables of his party out of sight of the Commissioner of Police and others were arrested in his presence. It subsequently transpired that at the time of the raid the raid meeting had been postponed.
The first question referred is whether offences punishable under section 4 of the Bombay Prevention ??? Gambling Act IV of 1887 as modified up to date are cognizable offences in all cases. The learned Magistrate appears to doubt the correctness of the ruling ??? Emperor v. Abasbhai, though he admits that he ??? bound to follow it. I am of opinion that it is not open to the Presidency Magistrate under section 432 of the Criminal Procedure Code to refer a point of law which is covered by an authority binding on him nor is ??? clear on what ground the learned Presidency Magistrate doubts the correctness of the ruling in Emperor v. Abasbhai. He refers to the case of Emperor v. Chandri. But the facts there were complete different. In that case the arrest for an offence under the bombay prevention of prostitution act was not on a complaint or by an authorised Police officer and the arrest was therefore held to be illegal. Here the arrest for an offence under the Bombay Prevention of Gambling Act was by an officer (the Commissioner of Police, Bombay) who could have issued a warrant of arrest. The question really is not whether the offence in this case is a cognizable one but whether the Commissioner of Police was empowered to arrest. In Emperor v. Fernad it was held that a person who is authorised to issue a warrant under section 6 of the Bombay Prevention of Gambling Act could himself arrest without a warrant and this case was followed in Emperor…Prosecutor; v. Jaffur Mahomed…Accused. and Emperor v. Abasbhai. The principle enunciated in the case of Emperor v. Fernad ??? a common sense one. In the case of Magistrates it has been enacted in section 65 of the Criminal Procedure Code that they have this power. As under the Criminal Procedure Code warrants of arrest are not issued by Police officers, it was unnecessary for the Code to make ??? similar provision in the case of Police officers. There would appear, therefore, to be no reason to suppose that the principle enunciated in the case of Emperor v. Fernad is incorrect. My answer, therefore, to the first question would be that the Commissioner of Police, Bombay, was in the circumstances of this case authorised ??? arrest the accused.
The second question is, whether the arrests are legal as there was no complaint on oath and the passage ??? not a “place” within the meaning of section 6 of ??? Bombay Prevention of Gambling Act. With regard ??? the first branch of this question it is not contended ??? the learned counsel for the accused that there is no ??? on oath by the informer. It is, however, contended that the word “complaint” in section 6 should bear its ordinary meaning of “information given by a person aggrieved.” That, however, is not the meaning of the word “complaint” as defined in the Criminal Procedure Code, section 4(1)(g), and as ruled in the case of In re Ganesh Narayan Sathe “any person having knowledge of the commission of an offence, may set the law in motion by a complaint, even though he is not personally interested or affected by the offence.’ The informant in this case was not interested but it is not necessary to suppose that the word “complaint” ??? section 6 is to be given any other meaning than ??? which it bears in the Criminal Procedure Code. I ??? then that there was a complaint on oath as required ??? section 6.
As regards the second branch of the question whether these passages constitute a “place” within the meaning of section 6 of the Bombay Prevention of Gambling Act the facts of the present case are very similar to those ??? the case of Emperor v. Fattoo Mahomed. There was held that a small area limited by metes and bound surrounded on all sides by buildings, and appropriate for the business of betting by the accused as a lessee ??? a place within the meaning of section 4. Here ??? passages are surrounded by buildings and are closed night by doors. It is true that the accused have ??? leased the passages for their business but they ??? appropriated them for the business by using them. ??? this way the business of betting has been localised ??? it would seem that this localisation converts the passage into a place as held in the case just cited. In ??? Bombay Prevention of Gambling Act, section ??? “common gaming” house is defined as a house, ??? or place in which instruments of gaming are kept, ??? and it is clear from the ruling just cited that the ??? factor in the expressions “house, room or place” is not that they are roofed over but that they are sufficiently definite. In this case as the passages are limited by the buildings and doors, it would appear that they are a place within the meaning of sections 3, 4 and 6 of the Bombay Prevention of Gambling Act.
The third question is, whether the Commissioner satisfied himself that there were good grounds for the suspicion of the complainant. As this is altogether a question of fact, I would leave it to the learned Presidency Magistrate to decide.
The fourth question is, whether the arrests by constables or by Sub-Inspector Salasker are illegal. As ??? this it may be presumed that, before the raid, orders were given by the Commissioner of Police to Sub-Inspector Salasker to arrest those who might be found ??? the passages. It may be that the arrests were not ??? within sight of the Commissioner of Police but they ??? be considered in the circumstances to have been ??? in his presence. It can hardly be urged that in case like this where a number of persons are to be dealt ??? the person authorised to arrest must personally ??? the arrest in each case. If the arrest is made in ??? presence and on his order it is certainly sufficient in accordance with the maxim qui facit per alium, facit per se. I would, therefore, hold that the arrests by the constables and by Sub-Inspector Salasker are not ???.
The last question is, whether there is any gaming at when the meeting was postponed. It is argued that it was understood by the bettors on the horses and ??? accused that the bets were with respect to races which ??? to take place that afternoon at Poona and at the ??? when the bets were made the races had been post ??? there was no gaming in this case, that is to say, there was no wagering or betting. No authority has been cited for the proposition that if one or both parties are under a misapprehension as to the subject of the wager or bet there is no wager or bet made. All that the wagerers in a case like this demand is that they should be paid an amount of money if the horse selected by them wins or is placed at the race in which the horse is to run. When they have made their bet and it has been accepted by the taker the transaction is a complete wager or bet. It may be that in a case like the present where the race meeting is postponed or cancelled the person who has paid his money would be entitled to get the money back, but, in my opinion, it cannot be said that the bet has not been made. Similarly, the abetment of an offence is under the Indian Penal Code punishable whether the offence abetted is or is not committed. I am therefore, of opinion that the fact that the race meeting was in this case postponed does not mean that there was no gaming.
Answers accordingly.
B.G.R
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