( 1 ) BASING his order on sec. 10 of the Bombay Prevention of Gambling Act the Judicial Magistrate First Class 2 Court Broach passed an order ordering accused No. 4 in a gambling case to be examined as a witness after nearly all the other prosecution witnesses had been examined. For passing his order the learned Judge relied on Rahmankhan v. Emperor A. I. R. 1937 Nagpur 396 and the observations therein that an accused may be taken from the dock and placed in the witness box and returned back to the dock and punished if he fails to satisfy the Court that he is entitled to an indemnity. He also relied on Jwalaprasad and others v. State 1953 Cr. L. J. 985 for his view that an accused may be examined at any stage of the trial as a prosecution Witness. The learned Magistrate also relied on Saikh Moti v. Emperor 14 Cr. L. J. 293. In regard to the ruling in Emperor v. Babilal Balvant 17 Bom. L. R. 1078 the learned Magistrate thought that sec. 10 of the Gambling Act has been amended by Bombay Act XIV of 1959 and the ruling in 17 Bom. L. R. 1078 was therefore not applicable in view of the amendment of sec. 10 of the Gambling Act.

( 2 ) IN his reference the learned Sessions Judge feels that the learned Magistrates view is erroneous. He feels that the position remains substantially the same even alter the amendment of sec. 10 of the Gambling Act by Act No. XIV of 1959.

( 3 ) SECTION 5 (2) Criminal Procedure Code reads as follows :all offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regarding the manner or place of investigating inquiring into trying or otherwise dealing with such offence.

( 4 ) AN offence under the Bombay Prevention of Gambling Act is not an offence under the Indian Penal Code and sub-sec (2) above applies to it. The trial for an offence under the Gambling Act is therefore to follow the procedure contained in the Cr. P. C. except where any enactment has been applied for the time being in force regulating the manner of trial of such offences. In regard to the manner of trial of offences under the Bombay Prevention of Gambling Act there is no provision in that Act. Sec. 10 of the Gambling Act does not refer to the procedure to be followed in the trial or inquiry but only refers to the result of the examination of a person as a witness at such a trial. Sec. 10 of the Bombay Prevention of Gambling Act in no way affects the procedure contained in the Cri. Pro. Code. regarding the trial of offences. Sec. 10 of that Act reads as follows :any person who has been concerned in gaming contrary to this Act and who is examined as a witness before a Magistrate in the trial of any person for a breach of any of the Provisions of this Act relating to gaming and who upon such examination makes in the opinion of the Magistrate 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 all prosecutions under this Act for anything done before that time in respect of such gaming.

( 5 ) THE heading of that section reads thus: Indemnification of certain witnesses. It only deals with the result of the examination of a person concerned in gaming as witness and when that person gives a true and faithful discovery to the best of his knowledge of all things as to which he is so examined. The section has no reference to the procedure to be followed at the trial. It only provides that a person referred to in that section shall be freed from all prosecutions under that Act for anything done before that time in respect of such gaming.

( 6 ) SECTION 342a Criminal Procedure Code reads as follows : Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges m