1. This is a petition filed by six persons under S. 482 of Code of Criminal Procedure praying that Annexure-A3 charge in Crime No. 237 of 1984 of the Cannanore Town Police Station pending before the Judicial Second Class Magistrate, Cannanore for offences punishable under Ss. 7 and 8 of the Kerala Gaming Act (Act 20 of 1960) may be quashed. The allegation is that on 9-6-1984 at about 10.45 p.m 8 persons including petitioners 1 to 6 were found playing cards with money for profit inside a room in a private building attached to the theatre belonging to the first petitioner and used as a residence. The Asst. Sub Inspector of Police searched the room, arrested them and registered the crime. Annexure-A1 is the scene mahazar and Annexure-A2 is the F.I.R The grounds alleged for quashing the charge are absence of necessary ingredients constituting the offence and violation of mandatory statutory formalities. It is true that S. 482 of the Code is a provision intended to be used in cases of grave and clear injustice in order to give effect to orders under the Code, prevent abuse of process of court or otherwise to secure the ends of justice, when no other specific provision is available. It cannot be used in trivial or doubtful cases of injustice. In the absence of other specific provisions the existing inherent power of the High Court is intended to be preserved and saved by the provision in order to give effect to orders, prevent abuses and secure ends of justice for which the court exists. The Section is not intended to create any non-existing right. The inherent power of the High Court is always there in spite of any provision or absence of any provision. Otherwise, instances may arise when the High Court may be without power in extreme cases. What the Section lays down is only that no provision of the Code shall be construed as intended to restrict or affect such rights by their presence or absence. In cases where other remedies are available, the inherent power cannot be invoked.

2. In this case, if the allegations are correct, the initiation of proceedings itself was by a person not authorised or competent. The steps taken for initiation of proceedings are on insufficient information and the procedure is also irregular. So also, the charge does not disclose the ingredients necessary to constitute the offences. If these facts are established by the available materials, there cannot be any doubt that the Magistrate ought not have taken cognizance. But cognizance was taken and process issued necessitating the accused persons to be dragged before court in order to undergo the ordeal of defending themselves. In such a case, it may be an abuse of process of court. In order to prevent the same and secure ends of justice, this Court may be justified in invoking the inherent power.

3. Here, the first petitioner is charge-sheeted for an offence punishable under S. 7 of the Gaming Act and petitioners 2 to 6 for offences punishable under S. 8. Ss. 7 and 8 of the Kerala Gaming Act read:

“7. Penalty for opening, etc. a common gaming house:—Whoever opens, keeps or uses, or permits to be used any common gaming house, or conducts or assists in conducting the business of any common gaming house or advances or furnishes money for gaming therein, shall be liable on conviction to fine not exceeding five hundred rupees, or to imprisonment not exceeding three months, or to both.

8. Penalty for being found gaming in a common gaming house:—Whoever is found gaming or present for the purpose of gaming in common gaming house shall, on conviction, be liable to imprisonment which may extend to one month or to fine which may extend to five hundred rupees or to both and any person found in any common gaming house during any gaming or playing therein shall be presumed until contrary be proved, to have been there for the purpose of gaming.”

4. For invoking both the sections one of the conditions precedent is that there must be a common gaming house. Common gaming house is defined in S. 2(a), which reads as follows:

“2(a) “common gaming house” means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel, or place or otherwise howsoever and include any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming.”

5. There is absolutely no allegation regarding the existence or preservation of a common gaming house. There is not even a whisper that the first petitioner is conducting or preserving such a house. So also, there is no allegation that the other petitioners or the other accused were present or engaged in gaming in such a common gaming house. Gaming in a private building or place is not made offences. There is nothing to show that it is intended to be prohibited also. Even if the entire averments in Annexures-A1 to A3 are taken as correct what is established is only that 8 persons were found gaming in a private apartment used as an office or residence. It is unconnected with a common gaming house. The words used are not “gaming house”, but “common gaming house”. Common gaming house indicates that it is a place intended and used frequently as a common place for the purpose. The existence of such place and gambling conducted there may be public nuisance and the purpose of the Act is to prevent the same and make violations punishable as offences.

6. S. 6 of the Act reads as follows:

“6. Cards, dice etc. found in search under S. 5 to be evidence that the place is a common gaming house:— Any cards, dice, gaming tables, cloths, boards or other instruments of gaming found in any place entered or searched under S. 5, or on any person found therein, shall be evidence, until the contrary is proved, 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 Magistrate or Police Officer, or any of his assistants.”

7. This Section creates a presumption which has to be rebutted by the accused. The presumption is that in a place of search under S. 5 if any instrument for gambling including cards are found it shall be evident until the contrary is proved that the place is a common gaming house. So also there is the presumption that until the contrary is proved, the persons found there will be considered as having been there for the purpose of gaming even if no play was going on. Cards is a game that is frequently enjoyed even in private residential buildings, which are not gaming houses or common gaming houses. If by a mere search the presumption is allowed to be raised. It is likely to affect innocent Victims.

8. That is the reason why the provisions of S. 5 are incorporated. S. 5 of the Act reads:

“5. Power to enter and search:—If a Magistrate or any Police Officer not below the rank of a Sub Inspector of Police upon credible information and after such enquiry as he may think necessary, has reason to believe that any place is used as a common gaming house, he may-

(a) after recording his reasons for such belief, either himself enter or by his warrant authorise any officer of police not below the rank of a Head Constable to enter with such assistance as may be found necessary, by night or by day, and by force, if necessary, any such place;

(b) either himself take into custody or authorise such officer to take into custody all persons whom he or such officer finds therein whether then actually gaming or reasonably suspected to have been present for purposes of gaming;

(c) seize or authorise such officer to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming, which are found therein;

(d) search or authorise such officer to search all parts of such place, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein and also the person of those whom he or such officer so takes into custody; and

(e) seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search.”

9. Misuse of the power under S. 5 may entail penal consequences including those under Ss. 6, 7 and 8 even on persons who are innocent. That is why the legislature in its wisdom wanted to place the restrictions embodied in S. 5. Therefore,-the provisions of S. 5 will have to be taken as mandatory and observed strictly. Different States in India are having different legislations in this respect. Different kinds of restrictions are incorporated in those enactments intended for the same purpose. Non-compliance of the provisions must therefore vitiate the search and the entire consequential proceedings. Legislature also thought that some responsible persons alone should be entrusted with the responsibility under S. 5. Magistrates and Police Officers of and above the rank of Sub Inspector of Police alone are therefore authorised for that purpose. Restrictions are imposed even on their actions in search. First of all, they must get not only the mere information but credible information that a place is being used as a common gaming house. They must also make such enquiry as necessary in order to satisfy themselves as to the correctness of the information received. The responsibility does not end there. Reasons for their belief will have to be recorded before conducting the search. Details of the information, enquiry and reasons for the belief will have to-be recorded. If the authorised officer himself is not conducting the serach, he can authorise an officer not below the rank of a Head Constable. But that should be by his warrant. These are measures intended to enable the court or other authorities to check whether the provisions are really and substantially complied with. They cannot be taken as empty formalities.

10. Dealing with the Madras Gaming Act in In re Thambi Iyengar (AIR (33) 1946 Madras 157), the Madras High Court held:

“The warrant issued under S. 5 does not set out that the Deputy Superintendent of Police, who issued it, had reason to believe that the house in question was being used as a “common gaming house”. All that it states is that information had been laid before him that gambling was going on in house No. 67, Iyenar Street. It is only if there is a proper compliance with the terms of S. 5 that the presumption under S. 6 will apply.”

11. In In re Chellakani Sahib (AIR (32) 1945 Madras 105), it was observed:

“Under S. 5 the Magistrate must have reason to believe that a place is used as a gaming house before the warrant referred to in S. 5 is issued and unless this condition was satisfied no presumption under S. 6 can be drawn from the recovery of cards, dice or other instruments of gaming from a place in execution of the warrant of search that the place was used as a common gaming house.”

12. In Emperor v. Subramania (AIR 1935 Madras 648) the Madras High Court held that 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. Regarding observance of the formalities in search that decision laid down that the warrant is to be in writing and must contain all the matters that the law requires to be stated therein. It was also held that oral statements intended to vary the terms of a warrant required by law to be in writing are not admissible.

13. Requirement of search warrant is there under Manipur Public Gaming Act also. In A. Manikchand v. Manipur Administration (AIR 1962 Manipur 20). it was observed:

“The Public Gambling Act does not make gambling in a private house illegal. Before issuing a search warrant under S. 5, the Officer must have had reliable information that the public servant concerned was using or keeping instruments of gaming in the Government quarters, in his occupation for his profit or gain. It was not enough therefore to say, particularly when the person concerned was a public servant and the house concerned was Government quarters in his occupation, that the house was being used as a place of gambling. In the warrant the house should have been described and it ought to have been stated that the house was used as a common gambling house.

14. Connected questions came up for consderation in Ramakrishna Pillai v. State of Kerala (1964 KLT 9) also. It was observed therein:

“It will be seen that a search under S. 5 must satisfy certain conditions viz., (1) The officer undertaking the search or issuing a warrant for the search must be of the specified rank, (2) the officer's belief that a certain place is used as a common gaming house must be based on credible information and enquiry and (3) the officer must record the reasons for such belief. Admittedly there is no such record in this case, nor is there any explanation why such a record was not made. Indeed Pw. 1 seems to have been entirely unaware of the necessity of such a procedure. It may be pointed out that the rule enjoining the officer conducting or authorising the search to make a record of his reasons is not to be found in the Gaming Acts in force in most of the other States. This indicates that our Legislature purposely added this provision to minimise the possibility of misuse of the wide powers of entry, search and seizure given under the Act which might considerably result in the harassment of respectable householders. Such salutary provisions clearly do not merit total disregard.”

15. If only there is clear evidence to show that all the formalities under S. 5 are observed, the presumption under S. 6 will become available. Otherwise, it may result in implication of innocent persons and thereby miscarriage of justice. That must be the reason why all these precautionary measures are provided.

16. In Emperor's case (AIR 1935 Mad. 648), while considering identical provisions it was observed:

“The presumption referred to in s. 6 can only apply to searches conducted in pursuance of a warrant issued under S. 5 of the Act.”

17. In Thakur Das v. Emperor (AIR 1936 Allahabad 109) an identical question regarding the presumption came up for consideration and it was held:

“In order to entitle the prosecution to invoke to its aid the presumption under S. 6 of the Act, the prosecution must prove affirmatively that the search was in accordance with the provisions of S. 5 of the Act, and where this fact is proved the conviction of the accused cannot be sustained merely on the strength of the presumption referred to in S. 6.”

18. It is evident that gaming or gambling in a private place is not intended to be made an offence or prohibited under the provision of the relevant statute. The Madras High Court considered the question in In re Chellakani Sahib (AIR (32) 1945 Madras 105) and held:

“For an offence under S. 9 to be completed the accused person must have been found gaming or present for the purpose of gaming in a common gaming house and for a room to be a common gaming house within the meaning of S. 3 of the Act the cards, dice or other instruments of gaming must be kept or used for the profit or gain of the person owning or occupying the room, and in the absence of evidence that the room was used as a common gaming house or a presumption as to that under S. 6 of the Act the accused cannot be convicted under S. 9 merely because he was found playing cards for money with others in the room.”

19. If the principles laid down in the decisions mentioned above are taken into account, it is clear that the papers do not disclose commission of offences for which the 8 persons are charge-sheeted. Annexures-A1 to A3 do not disclose any information under S. 5 or observance of formalities provided therein. There is no mention of any common gaming house. The Assistant Sub Inspector does not claim to have received any such information also. The only information he got was that some persons were gaming in a private apartment. He has not conducted any enquiry and he has not recorded any satisfaction. He prepared a search memo and conducted a search. Evidently that is not sufficient. Even if the persons were gaming in that private building, since it is not alleged to be a common gaming house, it cannot constitute an offence.

20. It was the Assistant Sub Inspector of Police who got the information and conducted search. He is not a person competent under S. 5 to receive the information or conduct the search. What the section says is that the person must be a Police Officer not below the rank of a Sub Inspector. The Public Prosecutor says that G.O (MS) 217/73 dated 19-12-1973 authorised the Assistant Sub Inspectors of Police with all the powers of Sub Inspectors and hence the Assistant Sub Inspector was competent to conduct the search. But what S. 5 lays down is that the officer must be one not below the rank of Sub Inspector. Authorising or investing an officer with the powers of a superior officer is one thing and rank is another thing. Admittedly, Assistant Sub Inspector is an officer below the rank of a Sub Inspector. By authorisation of powers, he cannot get the rank of a Sub Inspector unless he is promoted and appointed to that post. In spite of investing of powers he continues to be an Assistant Sub Inspector of Police. Therefore, the search conducted by him is not competent under the provisions of S. 5. Further he did not get the requisite information and he did not make the requisite enquiries also. The presumption under S. 6 is not available. The result is that Annexures Alto A3 cannot be taken to have disclosed any offences punishable under Ss. 7 and 8 of the Kerala Gaming Act. The cognizance taken by the Magistrate is therefore illegal. The trial of the case will therefore be an abuse of process of court. This is a fit case in which the Court has to interfere on the basis of the powers conferred under S. 482. The petition is therefore allowed and Annexure A3 charge is quashed.

21. Allowed.