JUDGMENT

Piggott, J. - This is an application in revision by one Mahadeo, who has been convicted of the offence which may be broadly described as that of keeping a common gaming house, punishable u/s 3 of the Public Gambling Act, Act No. Ill of 1867, and has been sentenced to rigorous imprisonment for two months. The case was tried summarily and no appeal lay under the law. The matter was brought in revision before the Sessions Judge, who has written careful order dealing with the points raised before him and has found no cause for interference. Before me the following points have been urged:

(1) That the search as conducted was irregular and invalid in law. and could not operate so as to give rise ageist the persons accused to the presumption referred to in Section 6 of Act No. III of 1867, by reason of the fast that the Magistrate's warrant authorising the search had been endorsed by the Police Officer to whom (by virtue of his office) it was originally issued, to another Police Officer of rank qualifying him to conduct searches u/s 5 of the Act. As pointed out by the learned Sessions Judge, this point is covered by authority in this Court vide Emperor v. Kashi Nath 30 A. 60 : 5 A.L.J. 59 : (1908) A.W.N. 9 : 7 Cri. L.J. 19. I have been asked to re-consider the soundness of this decision and my attention has been called to case s from other High Courts in which analogous questions have been considered. I think it sufficient to say that the Courts below were bound to follow the decision of this Court on the point and that I am not prepared to re-consider it.

(2) It has been contended that the house searched by the Police was not the house designated in the warrant. This is a matter of evidence, and I have no doubt that the house searched was the one intended by the warrant, also that it is adequately desorbed in the said warrant so as to make the search valid and effective for all purposes.

(3) It has been contended that there was an irregularity in the conduct of the trial, because two distinct case s were taken before the Magistrate one against the applicant, Mahadeo, u/s 3 of Act No. III of 1867, and the other against a number of parsons u/s 4 of the same Act, and it is suggested that the Magistrate, while purporting to try the two case s separately, only heard the evidence once. There is nothing on the record to support this contention and no affidavit has been filed. A statement has been laid before me by the Assistant Government Advocate as to what the Magistrate Actually did. I cannot take judicial notice of that statement; neither "am I bound to presume, in the absence of anything in the way of record or affidavit to justify the contention, that the conduct of the trial was marred by any irregularity in the examination of the witnesses.

(4) It is contended that Mahadeo was not proved to be the owner of the house in question, or at any rate that evidence not legally admissible was relied upon on behalf of the prosecution to prove his ownership. This point has to be considered quite apart from the question whether the house searched was the one described in the warrant. It is sufficient to say that there s abundant evidence on the record that, whether Mahadeo was the owner of this house or merely its occupier, he was at any rate a person who had the use of the house, and on the evidence he was using the same as a common gaming house. There is, therefore, no force in this contention.

(5) The most serious point taken, however, is with reference to the evidence given at the trial by two persons named Gobind Pragwal and Mohan, who were examined as witnesses called by the Court u/s 540 of the Criminal Procedure Code at the trial of Mahadeo. These persons had been found by the Police in the house in question at the time of the raid and they were sent up as accused persons in the case u/s 4 of Act No. III of 1867. Within the meaning of Section 10 of the same Act they were undoubtedly persons brought before the Magistrate who had been