Offences under Sections 3 and 4 of the Rajasthan Gambling Ordinance are non-cognizable and Section 173, Cr. P. C. does not apply.

J. S. RANAWAT, J.

( 1 ) THIS is an appeal by the State against an Order of the City Magistrate, Jaipur dated 1st June, 1956 by which Tara Chand was acquitted for the reason that the prosecuting Sub-Inspector had failed to furnish copies of the documents filed with the complaint to the accused.

( 2 ) THE facts of the case are that in pursuance of a warrant issued by the District superintendent of Police, Jaipur, certain premises were searched on 5th May, 1956 by Sri Jaisingh Sub-Inspector, incharge of the police station, Kotwali, Jaipur, under section 5 of the Gambling Act and Tarachand was arrested and certain instruments of gambling found on the premises were taken possession of by the police. Tarachand was produced before the Magistrate by Sri Jaisingh and a complaint was filed by him against the accused. On the date fixed for hearing of the case the Magistrate examined the accused who pleaded not guilty. The Court then directed the Prosecuting Sub-Inspector to furnish copies of the prosecution documents to the accused, but he failed to comply with the order of the Court on the ground that the case was not a cognizable one and that there was no obligation on the prosecution to furnish such copies to the accused. The magistrate then recorded an order of acquittal on the ground that the prosecution had failed to furnish copies of the documents to the accused under Section 173, cr. P. C.

( 3 ) IN this appeal it has been urged on behalf of the State that a case under sections 3 and 4 of the Gambling Act cannot be regarded as a cognizable one and the provisions of Section 173, Cr. P. C. , do not apply to such a case. It is also urged that there being no obligation on the prosecution to furnish copies of its documents to the accused the order of the Magistrate acquitting the accused for this reason is illegal and deserves to be set aside in this appeal.

( 4 ) MR. Mathur has appeared for the accused and he has contended that a case under Sections 3 and 4 of the Gambling Act is a cognizable one and the procedure of Section 173, Cr. P. C-governs it. He has placed his reliance on the authority of in re, Nagarmal Jankiram, AIR 1941 Nag 338 (A), in which the decisions of the following cases were referred to and relied upon : Queen-Empress v. Deodharsingh. ILR 27 Cal 144 (B), Emperor v. Ismail Hirji, Alr 1930 Bom 49 (C)and Maroti v. Emperor, AIR 1939 Nag 95 (D ).

( 5 ) MR. Chatterjee for the State has cited the decisions of the following cases in support of his contention that a case under Sections 4 and 7 of the Rajasthan gambling Ordinance is not a cognizable offence: Mahmoodkhan Doulatkhan v. Emperor, AIR 1942 Sind 106 (E), Htwan Htin v. Emperor, AIR 1935 Rang 181 (F)and Raghunath Lahanusa Walvekar v. Emperor, AIR 1932 Bom 610 (G ).

( 6 ) THE controversy in this appeal relates to the question of the applicability of the provisions of Section 173, Cr. P. C. , to a case under Section 3 or 4 of the rajasthan Gambling Ordinance. It is admitted by both the sides that Section 173, cr. P. C. , would only apply to this case if an offence under Sections 3 and 4 of the gambling Act is held to be a cognizable one and would not apply if such a case is non-cognizable. The decision on the point would, therefore, hinge on the question whether a case under Sections 3 and 4 of the Rajasthan Gambling Ordinance is a cognizable one? Section 4 (1) (f) of the Criminal Procedure Code defines a cognizable offence as follows :

" cognizable offence means an offence for, and "cognizable case" means a case in, which a police officer, within or without the presidency towns may, in accordance with the Second Schedule or under any law for the time being in force, arrest without warrant. "

( 7 ) A non-cognizable offence and a non-cognizable case have been defined in section 4 (1) (n) as follows --

" "non-cognizable offence" means an offence for, and "non-cognizable case means a case in which a police officer, within or without a presidency town, may not