Emperor Vs. Kaitan Duming Fernad - Court Judgment

Chandavarkar, J.

1. The petitioners, seven in number, have been convicted by the First Class Magistrate at Karwar, of the offence of gaming in a common gaming house under Section 5 of Bombay Act IV of 1887. The first petitioner has also been convicted of the offence of keeping a common gaming house under Section 4 of the Act. The legality of the conviction is questioned before us on the ground that the Magistrate has erred in applying the provisions of Section 7 of the Act by presuming at the outset the guilt of the petitioner and throwing on them the onus of proving their innocence.

2. The facts which have been found by the Magistrate and which are material for the purposes of the ground on which we are asked to quash the convictions, are briefly these:-

One Kashinath Laxman, Abkari Sub-Inspector, Karwar, having met the District Magistrate of that place, driving in a dumny on the Kodibag road, informed the said Magistrate that gambling was then going on in the house of Kaitan D. Fernad, petitioner No. 1. The District Magistrate desired Kashinath to go and stand before the house and said that he would himsself be there within a short time. Kashinath was at the same time ordered by the Magistrate to enter the house and arrest the persons gambling at the sight of the District Magistrate's dumny coming towards the spot. Kashinath accordingly went and stood near the house, having in the meantime secured the assistance of one Sawer, an Abkari Constable. Immediately after that the District Magistrate's dumny arrived and a signal was made by the said Magistrate to the two persons to enter the house. They entered and the petitioners were arrested with cards and money. The petitioners tried to effect an escape but the District Magistrate who was standing outside, said 'catch hold of them.

3. Upon these facts the Magistrate, before whom the petitioners were tried, has held that under Section 7 of the Bombay Act No. IV of 1887 it was for them to prove that they were not guilty of the offences charged.

4. The presumption under Section 7 arises only where there has been an arrest and a search under Section 6 of the Act, which provides that it shall be lawful for any Magistrate of the First Class 'upon any complaint made before him on oath that there is reason to suspect any house, room, or place to be used as a common gaming house and upon satisfying himself after such enquiry as he may think necessary that there are good grounds for such suspicion, to give authority, by special warrant under his hand, when in his discretion he shall think fit, to any Inspector or other superior officer of Police of not less rank than a Chief Constable' to enter and arrest and seize all instruments of gaming.

5. In the present case there was no such warrant, but it is contended, and, we think, rightly, that as under Section 6 the District Magistrate as a Magistrate First Class had power to give authority under a special warrant to a Police officer of the class designated in the section to make the arrest and the search, the Legislature must be presumed to have intended that the Magistrate First Class should have the authority to make the arrest and the search himself, if necessary. The action of the District Magistrate is one falling within 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: qui per alium facit per seipsum facere videtur'. When the Legislature empowers an officer to delegate an authority to do a certain act to another person, it necessarily implies that the original authority to do such act is fully and completely in the officer himself, but that it is necessary for the exigencies of business that it should be done in the majority of cases by persons acting under authority derived from him. This principle is adopted by the Legislature in Section 65 and 105 of the Code of Criminal Procedure. Section 65 authorises a Magistrate to make an arrest himself or direct an arrest in his presence in cases in which 'he is competent at the time and in the circumstances to issue a warrant.' And Section 105 of the Code provides similarly for a search by him or in his presence. It is urged, however, by the learned pleader of the petitioners, that these two sections of the Criminal Procedure Code have no application to the Bombay Gaming Act by virtue of Clause (2) of Section 5 of that Code. But all that the said clause enacts is that the provisions of the Code shall apply not only to the investigation, inquiry and trial of offences under the Indian Penal Code but also to offences under any other law 'subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.' Where the Gaming Act has provided for the manner or place of investigating or inquiring into any offence under it, its provisions must prevail and the Criminal Procedure Code must give way. Accordingly, no provision of the Code as to the authority empowered to issue a warrant for arrest or search, or the persons to whom and the conditions under which such warrant may be issued can apply for the purposes of Section 7 of the Gaming Act. The authority, the persons and the conditions must be respectively those specifically mentioned in Section 6 of the Act and no other. But the special provision in Section 6 would still be subject to the general provisions of Section 65 and 105 of the Code.

6. When, however, a Magistrate, First Class, or other officer mentioned in Section 6 of the Act himself acts under its provisions, instead of acting through an officer of the particular class prescribed therein under a special warrant, he must act strictly in compliance with those provisions. The first condition necessary to make an arrest and seizure under the section legal so as to bring in the operation of Section 7 is, that, where the Magistrate is acting on information, there must be a complaint made before him on oath to set him in motion. There is nothing on the record of this case to show that there was any such complaint The District Magistrate is not examined. When a Magistrate, First Class or other officer mentioned in Section 6, himself does the acts specified in els. 1 to 3 of the section, instead of issuing a special warrant, he must give evidence, because he supplies the place of the warrant and the warrant is a necessary part of the evidence for the prosecution. See Queen v. Subsookh (1870) 2 N.W.P. 476. From the judgment under revision we gather that the Magistrate who tried this case asked the petitioner's pleader whether he would like the District Magistrate called for examination and the pleader replied, 'No.' But the pleader's negative answer must be construed in favour of the accused. He did not desire the District Magistrate to be called because the evidence of the latter was not necessary for his purpose. If the District Magistrate were not called, it was so much the better for his clients, because in that case there would be no proof that the District Magistrate had acted upon such a complaint as Section 6 requires and it was for the prosecution to adduce such proof, Then again, where a Magistrate, First Class, himself makes an arrest and seizure under Section 6 of the Act, he must himself 'enter' the 'house, room, or place,' with, of course, the assistance of such persons as may be found necessary. Here the finding of the Court below is that the District Magistrate (Mr. Pause) did not enter the house but stood outside ; and it was the complainant Kashinath and his comrade, Sawer, who, on a signal given by the District Magistrate, entered, arrested some of the petitioners and seized 'the cards and the dice.' Section 6 must be construed strictly, because Section 7 gives to an arrest and seizure under it an operation different from that of the general presumption of innocence in criminal cases. See Imperatrix v. Subhabhatta bin Madhavbhatta (1895) Unr. Cr.C. 825 : Cr.R. No. 68 of 1895.

7. We must, for these reasons, quash the convictions and sentences and direct the fines, if paid, to be refunded to the petitioners. It follows that the order of compensation passed by the Magistrate falls to the ground, so also all other orders passed by the Magistrate relating to the property seized in connection with the case.