Abbu Singh and ors. Vs. Emperor - Court Judgment

Chamier, J.

1. The applicants have been convicted under sections 3 and 4 of the Public Gambling Act, 1867. The only point taken in revision is that the warrant, under which the Police searched the house of the first^ applicant, was issued by a Magistrate who was not competent to issue it, and, therefore, the discovery of instruments of gaming in the house did not give rise to the presumption that the house was a common gaming house, as defined in the Act. Section 5 of the Act provides that a search warrant may be issued by the Magistrate of a District or 'other officer invested which the full powers of a Magistrate.' This expression means a Magistrate of the first class,--see Section 3(2) of the Code of Criminal Procedure. The warrant in the present case was issued by M. Muhammad Shaffi Khan, Magistrate of the first Class, in the Farrukhabad District. In November last, he was appointed to be Sub-Divisional Officer of two Tahsils in the District. The house searched is not in either of those Tahsils and it is on this account that the warrant is said to be illegal. It appears to me that there is no force in the contention. The officer in question was a Magistrate of the first class with jurisdiction extending throughout the District when he was appointed to be a Sub Divisional Officer. The appointment gave him certain additional powers in the area of which he became Sub-Divisional Officer but did not deprive him of all his powers as a Magistrate. A Sub-Divisional Magistrate exercises magisterial powers in matters which do not concern his sub-division, and I find nothing in the Code which suggests that this practice is contrary to law. It is true, as pointed out by Counsel for the appellants, that some of the ordinary powers of a Magistrate of the first or second class, who has been appointed to be a Sub-Divisional Officer, cannot be exercised by him except in cases arising in his sub-division or transferred to him by higher authority, but that is on account of the nature of those powers. There are other powers which any Magistrate can exercise anywhere in the District, for example, the power to command an unlawful assembly to disperse or the power to record a confession. All that Section 5 of the Public Gambling Act requires is that the search warrant shall be issued by the Magistrate of a District or a Magistrate of the first Class. It is impossible to hold that the Magistrate who issued the warrant in the present case was not a Magistrate of the first class. The application is rejected.