IMPORTANT POINT
The court emphasized the need for a valid confession and the obligation of the court to ensure no injustice is caused and equal protection of laws is provided.

JUDGMENT :

1. By means of the instant criminal revision filed under Section 397/401 Cr.P.C. the revisionist has challenged the validity of the judgment and order dated 05.11.2020, passed by the learned Chief Judicial Magistrate, Faizabad in Criminal Case No.11109 of 2018 arising out of Case Crime No.52 of 2018, under Section 13 of the Gambling Act, Police Station Kotwali Rudauli, District Faizabad, whereby the revisionist has been convicted for the aforesaid offence on the basis of his confession and has been sentenced to pay a fine of Rs.100/- and to remain in custody till the rising of the Court, only to the extent that it denies the benefit of Probation of Offenders Act, 1958 to the revisionist.

2. Sri. Amit Chaudhry, the learned counsel for the revisionist has submitted that the revisionist has no criminal history and, therefore, he was entitled to be granted benefit of provisions of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the ‘Act of 1958’). In that case the revisionist would be entitled to the benefit of Section 12 of the Act, 1958, which provides that a person found guilty of the offence and dealt with under the provisions of Section 3/4 of the Act, 1958 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

3. The learned counsel for the revisionist has submitted that Section 361 Cr.P.C. provides that whether a court could have dealt with an accused person under the provisions of Section 360 Cr.P.C. or provisions of Act, 1958, but it has not done so, it shall record in its judgment the special reasons for not having done so, whereas no reason has been recorded in the impugned order for denial of benefit of Section 4 of the Act, 1958 to the revisionist.

4. Per contra, the learned A.G.A. – I has submitted that Section 4 of the Act of 1958 merely provides for release of the offender on probation of good conduct, but it does not provide for setting aside his conviction.

5. In reply to this submission of the learned A.G.A.-I, the learned Counsel for the revisionist has submitted that Section 12 of the Act of 1958 provides that a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer any disqualification attaching to a conviction of an offence under such law. Therefore, he confines his submission for the revisionist being granted the benefit of Section 4 of the Act of 1958, which would result in removal of the disqualification attached with the applicant being guilty of committing an offence.

6. Having heard the submissions of the learned Counsel for the revisionist and the learned A.G.A.-I, I proceeded to peruse the record of the case. In the memo of the revision, the validity of the order of sentence has also been challenged on the ground that the fine imposed by the trial Court exceeds the maximum fine of Rs.50/- permissible under Section 13 of the Public Gambling Act.

7. Section 13 of the Public Gambling Act, 1867 provides as follows: -

“13. Gaming and setting birds and animals to fight in public streets.—A police-officer may apprehend without warrant—any person found playing for money or other valuable thing with cards, dice, counters or other instruments of gaming, used in playing any game not being a game of mere skill in any public street, place or thoroughfare situated within the limits aforesaid, or

any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the limits aforesaid, or

any person there present aiding and abetting such public fighting of birds and animals.

Such person when apprehended shall be brought without delay before a Magistrate, and shall be liable to a fine not exceeding fifty rupees, or to imprisonment, either simple or rigorous, for any term not exceeding one calendar month;

Destruction of instruments of gaming found in public streets.— Any such police-officer may seize all instruments of gaming found in such public pl