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Raghunath Lahanusa Walvekar v. Emperor
Factual and Procedural Background
This opinion arises from a police raid conducted under Section 6 of the Bombay Prevention of Gambling Act. During the raid a number of items were seized, including a betting slip (Ex. 1‑C‑7), telephone messages and letters. Three accused persons are involved: accused 1 (a licensed clerk to a licensed bookmaker in Poona), accused 2 (described as his clerk), and accused 3 (a relation engaged in a racing business in Bombay). Two panchas participated in the raid but were not local persons; the Sub‑Inspector stated he collected two persons then at the police station and they were not known to him.
Arrests did not occur at the time of the raid: although the search warrant permitted arrest of persons found at the common gaming house, accused 2 who was present at the raid (3rd October) was arrested only on 19th October; accused 1 was arrested on 19th October; accused 3 on 20th November. The police submitted a charge sheet to the Magistrate; proceedings followed and convictions were recorded. A revision application was brought challenging various legal points, including the validity of the panchas, the lawfulness of the arrests, and the sufficiency of the charge sheet. The court dismissed the application and upheld the convictions and sentences.
Legal Issues Presented
- Whether Section 103 of the Criminal Procedure Code applied to the search under Section 6 of the Bombay Prevention of Gambling Act and whether the use of non‑local panchas invalidated the search.
- Whether the arrests of the accused (which occurred after the raid) were lawful given the classification of the offence as cognizable or non‑cognizable under Section 4(f) of the CrPC and Schedule 2.
- Whether the charge sheet submitted by the police could be treated as a complaint under Section 190(1)(a) of the CrPC, thereby allowing the Magistrate to take cognizance despite any arrest irregularity.
- Whether any defects in the charge sheet or procedural irregularities (including alleged illegal arrests) could be cured by Section 529 or Section 537 of the CrPC such that the trial and convictions remain valid.
- Whether the seized material (betting slip, telephone messages and letters) constituted sufficient evidence (including invocation of the statutory presumption under Section 7 of the Bombay Prevention of Gambling Act) to support conviction.
Arguments of the Parties
Appellants' (Defense) Arguments — as presented by Mr. Velinkar / Mr. Velinker
- The two panchas who took part in the raid were not local persons, and therefore the search did not comply with Section 103 of the CrPC, rendering the search irregular.
- The arrests of the accused (which occurred days or weeks after the raid) were illegal because the offence is non‑cognizable under Section 4(f) and Schedule 2 of the CrPC, and the police therefore had no power to arrest without a warrant.
- The charge sheet was not a sufficiently specific statement of facts to satisfy Section 190(1)(a) of the CrPC.
- Evidence relied on by the prosecution (for example telephone messages and slips) might have been fabricated — the telephone messages could have been faked and letters forged (an argument raised to challenge sufficiency of evidence).
- Cited authority: relied on decisions such as Emperor v. Rustam Kursetji Lam and Emperor v. Chandri to support arguments that the accused’s trial was vitiated by arrest irregularities or that seized slips were not necessarily indicia of a betting business.
Respondent / Government Pleader's Arguments
- Section 103 of the CrPC applies only to searches made under the Code; the Bombay Prevention of Gambling Act does not require compliance with Section 103 for searches under Section 6, and therefore the objection to non‑local panchas is not fatal.
- Even if the use of non‑local panchas were irregular, the defect is curable under Section 537 of the CrPC (and analogous curative provisions such as Section 529), so the proceedings should not be set aside.
- The charge sheet submitted by the police can be treated as a complaint under Section 190(1)(a) of the CrPC (relying on Emperor v. Shivaswami Guruswami / Emperor v. Shiva‑swami), thus enabling the Magistrate to take cognizance despite defects in arrest procedure.
- The material seized (betting slip, telephone messages and letters) supports the statutory presumption under Section 7 of the Bombay Prevention of Gambling Act and furnished sufficient evidence for conviction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Ismail | Head‑note stated that offences under Section 4 of the Bombay Prevention of Gambling Act are cognizable in all cases and that the Commissioner of Police could arrest without a warrant. | The court found that the head‑note overstates the decision; Patkar, J.'s reasoning was limited to circumstances where the Commissioner himself was present and able to exercise powers he could authorize; Wild, J.'s conclusion was similarly circumscribed. The decision is not an authority for the broad proposition that offences under Section 4 are cognizable in all cases. |
| Emperor v. Shivaswami Guruswami (also referred to as Emperor v. Shiva‑swami / Shivastoami) | Authority for treating a police charge sheet as a complaint under Section 190(1)(a) of the CrPC. | The court accepted this authority and relied on it to conclude that the Magistrate could take cognizance of the matter on the charge sheet treated as a complaint. |
| Emperor v. Rustam Kursetji Lam | Remarks concerning slips of paper containing names of horses found in the accused's rooms — suggesting such slips might be personal notes and not evidence of a betting business. | The court distinguished its facts: in the present case, accused 1 had a connection to a licensed bookmaker and the seized material (in context with telephone messages and letters) supported the inference of a betting business; the Lam remarks were not applicable. |
| Khilinda Ram v. Emperor | Authority for the proposition that Section 103 of the CrPC does not apply to searches under Section 6 of the Bombay Prevention of Gambling Act. | The bench cited this decision (and others) for the proposition that Section 103 does not apply to searches under Section 6; it supported the conclusion that the objection based on Section 103 fails. |
| Emperor v. Chandri | Decision under the Bombay Prevention of Prostitution Act, 1923, where arrest contrary to the Act's special provision (Section 10) led to the Magistrate being held without power to take cognizance under Section 190 of the CrPC. | The court distinguished Chandri on its facts and statute (special arrest provision) and held it did not control the present case; Chandri was not a bar to treating the charge sheet as a complaint here. |
Court's Reasoning and Analysis
The court proceeded through the principal objections in turn and applied statutory definitions and precedent discussion strictly as set out in the record.
On Section 103 (CrPC) and the panchas: the court reasoned that Section 103 in terms applies only to searches made under the Code itself, and there is nothing in the Bombay Prevention of Gambling Act requiring searches under Section 6 to conform to Section 103. While police often follow Section 103 when conducting such searches, the court held that it is not essential. Even if it were essential, the court observed that any irregularity arising from non‑local panchas could be cured under Section 537 of the CrPC. The Sub‑Inspector's evidence was that the panchas were not known to him and were the first persons available at the police station; there was no evidence they were not independent.
On the lawfulness of arrests: the court examined the definition of "cognizable" in Section 4(f) of the CrPC and the operation of Schedule 2. It noted that, under the ordinary law and the Prevention of Gambling Act, a warrant is required under Section 6 of that Act. The court concluded that under the Code this was not a cognizable offence and that, in general, the police could not arrest without warrant. The court analyzed Emperor v. Ismail, finding the head‑note too wide and the reasoning limited to the special circumstance where the Commissioner was personally present and could perform what he had power to authorize others to do. Consequently, the court held the arrest of accused 1 and 3 was not justified and that accused 2's arrest some time after the raid was also doubtful.
On the charge sheet and magistrate's cognizance: the Government Pleader argued the charge sheet could be treated as a complaint, relying on Emperor v. Shivaswami Guruswami. The court accepted that authority and held the Magistrate could take cognizance. As to the adequacy of the charge sheet under Section 190(1)(a), the court acknowledged it was not a very complete statement of facts but found that any defect was covered by Section 529 of the CrPC, which protects acts done by a Magistrate in good faith from reversal merely for want of requisite power in certain cases. The court concluded that any mistake was made in good faith, likely influenced by the broad head‑note in Emperor v. Ismail, and hence the defect did not vitiate proceedings.
On evidentiary sufficiency: Broomfield, J. agreed that the betting slip should be regarded as a record of betting transactions and therefore an instrument of gaming when viewed alongside telephone messages and letters found in the raid. The telephone itself, if used for making bets as the evidence showed, would also be an instrument of gaming. The prosecution could therefore invoke the presumption under Section 7 of the Bombay Prevention of Gambling Act. The court found no support for the suggestion that telephone messages or letters were faked or forged and concluded there was evidence on which the Magistrate could legally convict.
On the effect of arrest irregularity: although both judges recognized the arrests were problematic (and that the Ismail head‑note had led them astray), they concluded irregularity did not vitiate the trial. The court distinguished precedent (Emperor v. Chandri) where a special statute contained express arrest provisions that materially affected jurisdiction; no such bar applied here.
Holding and Implications
Application dismissed.
Direct effect on the parties:
- The convictions and sentences of the accused were upheld by the court.
- The court held that searches under Section 6 of the Bombay Prevention of Gambling Act need not comply with Section 103 of the CrPC; any irregularity as to panchas was, in any event, curable (Section 537), and the charge sheet could be treated as a complaint (Section 190(1)(a)), with defects cured under Section 529 where the Magistrate acted in good faith.
- Although certain arrests were held to be unjustified or doubtful, the court concluded that these irregularities did not vitiate the trial on the facts and law before it.
Broader precedent impact: The court expressly limited the precedential reach of the head‑note in Emperor v. Ismail, rejecting its sweeping statement that offences under Section 4 of the Bombay Prevention of Gambling Act are cognizable in all cases. The decision reinforces that statutory context and the precise factual circumstances (for example, the Commissioner’s personal presence) govern application of such authorities. The opinion did not purport to create a novel legal principle beyond its factual and statutory analysis.
Order: Application dismissed.
Beaumont, C.J:— (His Lordship after stating facts proceeded). Mr. Velinkar then takes certain points of law. He says, in the first place, that the two panchas who took part in the raid were not local people and therefore Section 103 of the Cr PC, was not complied with. The, first answer to that is that S. 103 in terms only applies to searches to be made under the Code, and there is nothing in the Bombay Prevention of Gambling Act which requires search made under S. 6 to be in conformity with the provisions of S. 103. No doubt the police often do, and very wisely, carry out a search under the Prevention of Gambling Act, in accordance with the provisions of S. 103, but in my view it is not essential to do so. Even if I thought that it was essential, I should say that the fact that the panchas were not local people is an irregularity which could be cured under S. 537 of the Code. The Sub-Inspector who made the raid says that the panchas were not known to him. He apparently collected the first two people he could find who happened to be at the police station, but there was no evidence that they were not perfectly independent persons.
2. Then the next point of law which is a rather more serious one is that the arrest of the accused was illegal. Under the search warrant it is open for the police to arrest anybody found at the common gaming house, and as accused 2 was there on the occasion of the raid on 3rd October, undoubtedly he could have been arrested. But in fact he was not arrested on that occasion; he was arrested on 19th October. Accused 1 was also arrested on 19th October, and accused 3 was arrested on 20th November. Mr. Velinkar says that this was a non-cognizable offence, and therefore the accused could not be arrested without warrant. “Cognizable” is defined in Section 4(f) of the Cr PC, to mean a case in which a police officer may, in accordance with Sch. 2 or under any law for the time being in force, arrest without warrant. Under the last words of Sch. 2 this is not a case in which the police could arrest without a warrant, and so far as the law for the time being in force is concerned the only special law dealing with the case, viz., the Prevention of Gambling Act, requires a warrant to be issued under S. 6. I think therefore that under the Code it is clear that this was not a cognizable offence, but Mr. Velinker has referred us, and quite rightly, to a case which appears to be against him on that point: Emperor v. Ismail (1). The head-note in that case is:
“Held: that the offence punishable under Section 4 of the Bombay Prevention of Gambling Act 1887, as modified up to data was a cognizable offence in all eases, and that the Commissioner of Police could therefore arrest without a warrant.”
3. In my view that statement in the head-note is not justified by the actual decision. It is quite true that the first question submitted to the High Court by the Magistrate was whether offences punishable under Section 4 of the Bombay Prevention of Gambling Act 4 of 1887, as modified up to date are cognizable offences in all cases. Patkar, J., who gave the first judgment does not appear in terms to have answered that question, bub his reasoning suggests what he thinks the answer should be. The case was a peculiar one on the facts, because the Commissioner of Police was himself present on the occasion of the raid. What Patkar, J., held was that, inasmuch as the Commissioner of Police was in a position to issue a warrant under S. 6 of the Act authorizing a police officer to make the raid and arrest, he could himself do what he was capable of authorizing somebody else to do, and it is clear that reasoning would only apply to a case in which the Commissioner himself was present. Wild, J., the other Judge does answer the question, but he answers in these terms:
“The Commissioner of Police of Bombay was in the circumstances of this case authorized to arrest the accused.”
4. But the case is not an authority for saying that offences punishable under Section 4 of the Bombay Prevention of Gambling Act 1887, are cognizable offences. I think therefore that in this case the arrest of the accused, certainly of accused 1 and 3, was not justified. I doubt whether the arrest of accused 2 was justified so long after the raid as his arrest took place. But then the learned Government Pleader says that even if that is so, the charge sheet sent up in this case can be treated as a complaint and the Magistrate can therefore take cognizance, and for that he relies on the case of Emperor v. Shivaswami Guruswami* (2). I think the case is an authority for that proposition, and I think in this case the Magistrate could take cognizance of the matter. Mr. Velinker has further argued that the charge sheet was in any case not a sufficiently specific statement of facts to come within section 190(1)(a) of the Cr PC. The charge-sheet contains a certain number of facts, though I agree, that it does not contain a very complete statement of facts, but even if the charge-sheet was not sufficiently specific as to facts, I think that the defect is cured under S. 529 of the Code which provides that if any Magistrate not empowered by law to do any of the following things, namely., (e) to take cognizance of an offence under S. 190, sub-S. (1), Cl. (a) or Cl. (b) erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.
5. I am quite satisfied that if there was any mistake in this case it was committed in good faith by the Magistrate, and I think probably both he and the police were led astray by the too wide terms of the head-note in the case of Emperor v. Ismail . I think therefore that the points of law fail and that the conviction and sentence must be upheld.
Broomfield, J.:— I agree. I consider that the betting slip Ex. 1-C-7 must be regarded as a record of betting transactions and therefore an instrument of gaming when it is considered in connexion with the evidence as to the telephone messages and the letters found in the raid in accused 1's house. The telephone itself would also be an instrument of gaming if used for the purpose of making bets as the evidence shows that it was. The prosecution therefore can call in aid the presumption under S. 7 of the Act.
6. Mr. Velinker for the applicants called our attention to certain remarks in the judgment in Emperor v. Rustam Kursetji Lam (3). Referring to certain slips of paper containing the names of horses which were found in the house of the accused in that case the learned Chief Justice said:
“The slips of paper which were found appear to me to be consistent with the view that Dr. Lam was interested in horse racing, as he says, and was making a note of bets which he proposed to make at the races, possibly for himself and his friends as well. But I see absolutely no evidence of anything in the nature of a betting business or of a book-maker's business being carried on by Dr. Lam or by the other accused who were in his rooms.”
7. I think there is no similarity between the facts in that case and the facts with which we have to deal. Dr. Lam was a medical practitioner.
8. The premises raided were his consulting rooms. In the present case accused 1 is a licensed clerk of his cousin who is a licensed book-maker in Poona. Accused 2 is his clerk and accused 3 is a relation of his who has what is described as a racing business in Bombay. Although this is a revision application, we have been taken through the evidence and, I find nothing to support the suggestion made on behalf of the accused that the telephone messages might have been faked and the letters which were found at the time of the raid forged. In my opinion the Magistrate had before him evidence on which he could legally convict the accused of the offences with which they were charged, and for the purposes of this revision application that is sufficient. As regards the alleged legal flaws in the proceedings, the argument based on Section 103 of the Cr PC fails because that section does not apply to searches under Section 6 of the Bombay Prevention of Gambling Act. That has been held in Khilinda Ram v. Emperor (4); and in several other cases. The other point is that the offence with which the accused are charged is a non-cognizable offence within the definition in Section 4 and Sch. 2 of the Cr PC, that, therefore the police had no power to arrest without warrant and that as the arrest was illegal the trial also was vitiated. I agree with the learned Chief Justice that the decision in Emperor v. Ismail is not really an authority for the proposition stated in the head-note, viz., that offences under Section 4 of the Bombay Prevention of Gambling Act, are cognizable offences in all cases. In this particular case it appears to me that as the police omitted to arrest accused 2 at the time of the raid and had no opportunity of arresting the others, they had no power to arrest any of them on a subsequent occasion without a fresh warrant. On the other hand, I cannot agree that irregularity vitiates the trial.
9. The case of Emperor v. Shivastoami is an authority for holding that the charge sheet submitted by the police to the Magistrate can be treated as a complaint under section 190(1)(a) of the Cr PC. Mr. Velinker referred us to an earlier decision in Emperor v. Chandri (5) which, in his opinion, supports the argument that the trial is vitiated by the illegality of the arrest. That was a case under the Bombay Prevention of Prostitution Act, 1923. There is a special provision, Section 10 of the in that Act, laying down the conditions in which arrests can be made. An accused person was arrested contrary to those provisions and it was held that the Magistrate had no power to take cognizance of the case under Section 190 of the Cr PC. It so happened that one of the Judges constituting the Bench, Fawcett, J., was also a party to the later decision in Emperor v. Shiva-swami . It appears from certain remarks in his judgment in Emperor v. Chandri that he considered that there were special reasons in that case for holding that the validity of the arrest was a question which materially affected the question of jurisdiction. He referred to the earlier case in his judgment in Emperor v. Shivaswami Guruswami* and found nothing in it consistent with the view which he took in the later case. I hold therefore that the Magistrate had jurisdiction to try the case, and even if the complaint was technically insufficient, it was only an irregularity which could be cured by the provisions of S. 529 of the Code. Both the police in arresting the accused and the Magistrate in trying the case were clearly acting in good faith and they had the authority of the head-note in Emperor v. Ismail to support them.
M.N
10. Application dismissed.
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