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Allahbad High Court
MAHESHCHANDRA
State of U.P. - Appellant
Versus
Lal Bahadur - Respondent
Decided On : 04/03/1967
U.P. PUBLIC GAMBLING ACT - SS. 3, 4, 5 - OFFENCE UNDER - COGNISABLE OR NON-COGNISABLE - S. 5 - WARRANT OF ARREST - ISSUE BY SUPERINTENDENT OF POLICE (CITY) - VALIDITY - S. 247, CR. P.C. - ACQUITTAL OF ACCUSED - PROPRIETY.
Fact of the Case:
Accused were prosecuted under Ss. 3 and 4 of the U.P. Public Gambling Act. A search warrant was obtained by the Station Officer under S. 5 from the Superintendent of Police (City), Lucknow and Lal Bahadur's house raided and the persons mentioned above arrested from the house while they were alleged to have been gambling. The instruments of gaming are also said to have been seized. After investigation a charge-sheet was submitted on 1-5-1965 the case was received by transfer in the Court of Sri Hukum Singh, Magistrate I Class, Lucknow. On the same day copies were given to the accused and 7-5-1965 was fixed for their statements. On that day the S. O. was absent and the accused moved an application to the effect that the offence under Ss. 3 and 4 of the U.P. Gambling Act was non-cognizable and the report of the Police Officer be treated as a complaint. According to the accused, the public prosecutor had no locus standi to appear in the case and they prayed that they be acquitted in accordance with the provisions of Section 247, Code of Criminal Procedure. The case was adjourned to 17-5-1965 for arguments. Nobody was present on behalf of the complainant or the prosecution on that date, and the case was adjourned to 19-5-65. On that date the A.P.P. sought an adjournment and the case was adjourned to 22-5-1965. The A.P.P. again sought another adjournment. On 27-5-1965 arguments were heard and the accused were acquitted by the order dated 29-5-1965.
Finding of the Court:
The court held that the offence under Ss. 3 and 4 of the U.P. Public Gambling Act was non-cognisable and the report of the Police Officer be treated as a complaint. The court also held that the public prosecutor had no locus standi to appear in the case and the accused were entitled to acquittal under Section 247 of the Code of Criminal Procedure.
Issues: 1. Whether the offence under Ss. 3 and 4 of the U.P. Public Gambling Act was cognizable or non-cognisable? 2. Whether the public prosecutor had locus standi to appear in the case? 3. Whether the accused were entitled to acquittal under Section 247 of the Code of Criminal Procedure?
Ratio Decidendi: 1. The court held that the offence under Ss. 3 and 4 of the U.P. Public Gambling Act was non-cognisable as per the definition of non-cognisable offence under Section 4 (1)(n) Cr. P.C. and Section 5 of the U.P. Public Gambling Act expressly excludes arrest without warrant by all officers below the rank of a District Superintendent of police. 2. The court held that the public prosecutor had no locus standi to appear in the case as the offence was non-cognisable and the report of the Police Officer was to be treated as a complaint. 3. The court held that the accused were entitled to acquittal under Section 247 of the Code of Criminal Procedure as the complainant was absent on the day appointed for the appearance of the accused and the Magistrate did not have any reason to adjourn the hearing.
Final Decision: The appeal was dismissed.
According to the accused, the public prosecutor had no locus standi to appear in the case and they prayed that they be acquitted in accordance with the provisions of Section 247, Code of Criminal Procedure. The case was adjourned to 17-5-1965 for arguments. Nobody was present on behalf of the complainant or the prosecution on that date, and the case was adjourned to 19-5-65. On that date the A.P.P. sought an adjournment and the case was adjourned to 22-5-1965. The A.P.P. again sought another adjournment. On 27-5-1965 arguments were heard and the accused were acquitted by the order dated 29-5-1965.
2. The first contention on behalf of the State is that Section 5 of the U.P. Public Gambling Act permitted issue of a warrant by the District Superintendent of police to any police officer, not below such rank as the State Government shall appoint in that behalf to enter any house, walled enclosure, room or place upon credible information that it is used as a common gaming house. The contention is that in this case the Superintendent of police (City) issued the warrant of arrest, even then the provision of Section 5 of the U.P. Public Gambling Act has not been satisfied. In Lucknow there is a Superintendent of police (City) and also a Superintendent of police (Rural) and then there is a Senior Superintendent of police who is really the District Superintendent of police. The issue of a warrant by the Superintendent of police (City) cannot, therefore, be said to be the issue of one by the District Superintendent of police. The said recovery of articles of gaming and also the consequential arrest by the S. O., Alambagh were, therefore, without legal authority and caused prejudice to the respondents. A similar view was taken by my brother Gyanendra Kumar, J. in Baboo Lal v. State of U.P., 1963 All. W.R. 740 with which I respectfully agree.
3. The next contention on behalf of the State was that since under Section 5 of the U.P. Public Gambling Act, the District Superintendent of Police may himself take into custody the persons whom he finds therein, the case under Ss. 3 and 4 of the U.P. Public Gambling Act would be one of a cognisable offence and not of a non-cognisable offence This contention is without force in Jai Prakash v. State of U.P., AIR 1961 All 377 Desai, J. observed : "Offences of Ss. 3 and 4 of the U.P. Public Gambling Act are not cognisable offences." He followed the earlier decision reported in State of Rajasthan v. Tarachand, AIR 1958 Raj 108. Before the Division Bench of Rajasthan High Court, the cases reported in AIR 1941 Nagpur 338 and (1900) ILR 27 Cal 144 relied upon on behalf of the State were also cited Section 5 of the Rajasthan Gambling Ordinance was for all material purposes in the same terms as Sections of the U.P. Public Gambling Act.
4. A non-cognisable offence has been defined in Section 4 (1)(n) Cr. P.C. as follows.
"Non-cognisabl
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