( 1 ) THE, Deputy Superintendent of police, Bodhan, conducted a raid on hotel Navrang at Bodhan on 12th November, 1977. He found some persons playing cards. He filed a charge-sheet against the eight accused, under sections 3 and 4 of the Andhra Pradesh Gaming act, 1974 in C. C. No. 535 of 1977 in the court of the Judicial First Class Magistrate, bodhan. They appeared in the court. They were examined under section 251, Criminal Procedure Code, accused 4 and 8 admitted the offence. Thereafter, the prosecution filed an application to examine accused 4 and accused 8 as witnesses under section 13 of the Andhra Pradesh Gaming Act, 1974. That petition was allowed by the Magistrate. Questioning his order, the accused have filed this petition.

( 2 ) IT is submitted by the learned Counsel for the petitioners that section 13 of the Andhra Pradesh Gaming Act, 1974, has no application to the facts of this case, for accused 4 and accused 8 are accsed of the offence, that they had ad. mitted the guilt and they cannot be there crl. R. C. No. 628 of 1977 and Crl. R. P. No. 619 of 1977. 3rd March, 1978. after taken as witnesses by the prosecution.

( 3 ) SECTION 13 of the Andhra Pradesh gaming Act, 1974, reads as follows:"13. Any person who is concerned in gaming contrary, to the provisions of this Act and who is examined as a witness before a Magistrate on the trial of any person for a breach of any of the provisions of this Act and who upon such examination, makes true and faithful discovery to the best of his knowledge of all things as to which he is so examined, shall thereupon receive from the said Magistrate a certificate in writing to that effect and shall be freed from any prosecution under this act for any thing previously done in respect of that particular gaming". An analysis of the section shows that a person must be concerned in gaming contrary to the provisions of the Act. He should be examined as a witness before the Magistrate. It should be in the trial of a person for the breach of any of the provisions of the" Act. He must make a true and faithful discovery to the best of his knowledge of all things to which he is examined. Thereupon, he will receive a certificate from the Magistrate to that effect. Then he will be freed from prosecution under the Act ifor anything done in respect of such gaming. The section does not contemplate an accused being examined as a witness in his own trial. It contemplates of a person who is concerned in gaming examined as a witness in the trial of another person. Otherwise, the words in the section " in the trial of any person" and "shall be freed from any prosecution under this Act for anything previously done in respect of that particular gaming" will have no meaning. A person cannot be both an accused and a witness at the same time. He can be either an accused or a witness. In this case accused 4 and accused 8 were already on trial. Therefore, I agree with the learned Counsel for the petitioners that a-4 and A-8 cannot be examined as witnesses under section 13 of the Andhra pradesh Gaming Act, 1974.

( 4 ) THE learned Public Prosecutor relied upon sections 10 and 11 of the Public graming Act, 1867, and the decision in mahadeo Prasad Vishnu v. Emperor. Section 10 of that Act provides that a Magistrate can examine as a witness any person found in a gambling house and brought before him. Section 11 is practically in the same terms as section 13 of the Andhra Pradesh gaming Act. 1974. Sections 10 and 11 of the Public Gambling Act, 1867, do not show that the Magistrate can examine an accused as a witness, when he still continues to be an accused.

( 5 ) IN Mahadeo Prasad Vishnu v. Emperort it has been held by Nanavatti, J. , that the procedure prescribed under the Public gambling Act, 1867, is a special one and overrides the general law as to the procedure connected with pardon laid down in the Criminal Procedure Code. In that case, the Magistrate, granted pardon to one Mata Prasad and used his evidenc

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