( 1 ) THIS is an application for revision of an order passed by a 1st class Magistrate on 15-4-1959 summoning the applicant to stand trial as an accused. On a warrant issued by Magistrate under section 5 of the U. P, Public Gambling Act the applicants house was searched by the Police and he was arrested and some instruments of gaming were seized from the house. After the arrest the police made a report in the general diary mentioning the result of the search. This report in the general diary was treated as the first information report and was investigated by a police officer without any order from a Magistrate. After investigation the investigating officer submitted a report on the prescribed form to a Magistrate for prosecution of the applicant for the offences of Sections 3 and 4 of the Act. The Magistrate took cognizance of the offences on the report and started the applicants trial. On one of the dates,. e,, 14-3-1959, the prose- cution witnesses were absent and the public prosecutor conducting the prosecution applied for adjournment. The Magistrate adjourned the case to 6-4-1959, warning that if the witnesses were not produced on that date an order under section 247, Cr. P. C. would be passed. When the case was taken up on 6-4-1959 no prosecution witness was present and the Magistrate, who happened to be other than the magistrate who had passed the order dated 14-3-1959, passed the following order:

"in view of the orders passed in this case on 25-2-59 and 14-3-59 and the fact that no prosecution witness is present to-day, let the accused persons be released under Section 249 Cr. P. C. "

After this the record was consigned to the record room. On 15-4-1959 the public prosecutor applied to the Magistrate for reviving the case saying that the prosecution witnesses would be available on the date fixed for their examination and the Magistrate on the same date ordered the record to be summoned from the record room. When the record was placed before him on the same date he ordered summons to be issued against the applicant for 5-5-1959 and directed the public prosecutor to produce the prosecution witnesses on that date. That is the order sought to be revised. The contention of the applicant is that the order dated 6-4-1959 amounted to his acquittal and that the Magistrate had no jurisdiction to revive the case and re-try him as he now proposes to do. I accept the contention.

( 2 ) OFFENCES of Sees. 3 and 4 of the U. P. Public Gambling Act are not cognizable offences. The police have no power to arrest a person accused of them without a warrant, vide the last entry in schedule II of Cr. P. C. and Section 5 of the U. P. Public Gambling Act. A police officer can arrest a person accused of these offences only if he has been authorised to do so by a warrant issued by a Magistrate under Section 5 of the U. P. Public Gambling Act; without such a warrant he cannot arrest any person accused of these offences. A police officer has been authorised by Section 13 of the Act to arrest without a warrant any person found gaming in any public street, place or thoroughfare but not a person found gaming in a common gaming house or opening, keeping or using a common gaming house. Even Section 13 of the Madras Gaming Act, which authorises a police officer to arrest without a warrant any person committing any offence punishable by that Act in his view was held by Subba Rao C. J. , and Basi Reddy J. in Public Prosecutor v. Ramiah, AIR 1958 Andh Pra 392 to be not a cognizable offence.

( 3 ) SINCE the offences of Sections 3 and 4 of the U. P. Public Gambling Act are not cognizable offences the police had no power to investigate them without an order of a Magistrate; see section 155 Cr. P. C. A Magistrate can take cognizance of an offence on a complaint or on a police report or on information. The police can make a report only after investigation; it follows that if the police cannot investigate a case they cannot make a report in that case.