State vs Dhani Ram and Others

J.N. Bhat, J.—This is a reference made by the learned Sessions Judge Kathua, on 16-3-1970 whereby he has recommended that the order

of discharge passed by the Chief Judicial Magistrate Kathua, on 14-12-1968 should be set aside. The brief facts which have resulted in this

reference are that on 30th October 1969 the Superintendent of Police Kathua issued a warrant for the search of the house of Piayroo son of Kripa

Ram R/O Parol under the Gambling Act. The house of this Piayroo was raided in the evening of 31st October 1967 and the accused, who are 14

in number, were found gambling; hence a 1971 Cri.L.J.46 case u/s 3/4 of the Gambling Act was presented against them. According to the

prosecution story Shri Rajkumar S. H. O. raided the house of this Piaryoo and arrested some persons who were actually gambling and some of

them were made to sit on a Garhi, may be truck or a bus, and others were being made to board the vehicle when a number of persons rescued the

arrested persons and assaulted the police party. As a result of this incident 13 accused also were challaned Under Sections 224, 225, 353, 332,

147, 149 and 341, R. P.C. in the same court. When both the cases were presented before the Chief Judicial Magistrate he dismissed both of them

holding firstly that the Gambling Act had not been extended to the village of the accused i.e. Village Parol, the search warrant under the Gambling

Act was as such illegal and any assault committed by the accused on the police party would not be an offence in the eyes of law. Against this

order, a revision application was presented before the Sessions Judge, Kathua. In that court a copy of a notification which was published in the

Government Gazette dated 22-11-1998 was presented, according to which exercising the powers conferred by Section 2 of the Jammu and

Kashmir Gambling Act, 1977 (Act No. XVIII) of 1977 (hereinafter referred to as 'the Act') the Government extended the provisions of the said

Act to places mentioned therein and out of the places mentioned in the notification, village Parol within the police station Kathua also is included.

According to the learned Sessions Judge, as the order of the Chief Judicial Magistrate was based mainly on the ground that the Act had not been

extended to village Parol where the house of Piayroo was searched, this order cannot be maintained and he has accordingly recommended that the

accused be tried in both the cases.

I have heard the learned Counsel for the parties.

In my opinion two points arise for consideration in this case. Firstly whether the Act applies to the village Parol where Piayroo accused lives and

secondly whether the proceedings initiated on the warrant of the Superintendent of Police dated 30th October 1967 are proper, and consequently

whether the prosecutions of the 14 accused Under Sections 3/4 of the Act and of the 13 accused under various sections of the Penal Code as

mentioned above, are proper and the cases be proceeded with.

So far as the first point is concerned, there can be no controversy. By means of the Notification above men tioned the village Parol where

Piayroo lives was included in the list of places to which the provisions of this Act were extended u/s 2 of the said Act. But that would not solve the

main difficulty. I have perused the original warrant issued by the Superintendent of Police Kathua, on 30th October 1967, the warrant is in Urdu,

and appears to be a general warrant issued u/s 5 of the Law relating to gambling vide Resolution of State Council No. 87 dated 3rd November

1891, Gazette No. 38 dated 15th Poh. 1948. I got the original Gazette traced out. The prosecution is sought to be under the Act i.e. under the J.

& K. Public Gambling Act, 1977 and not under the Law as laid down in the Council Resolution dated 15th Poh. 1948. The learned Addl.

Advocate General has however argued that the Act is only a translation of the original law contained in the Council Resolution. I have compared

the law as contained in the Act and as in the Council Resolution. There is difference in certain sections; for instance Section 1 of the Resolution

defines a Police Officer as one who is above the rank of a Sergeant (Head Constable) whereas Section 1 of the Act does not at all mention

anything about a Police Officer. Then let us take Section 5 itself under which the warrant in question purports to have been issued.

u/s 5 of the Council Resolution the power to issue a warrant is vested in the Judge of the Saddar Adalat, Superintendent of Police or Inspector

of Police but u/s 5 of the Act the power is vested in a Magistrate of the District or the District Supdt. of Police or Police Officer higher in rank. In

the Act the Judge of the Saddar Adalat which means perhaps Sessions Judge has been omitted and the lowest Police Officer who can act under

this Section is either a Supdt. of Police or his superior officer whereas under the Council Resolution even an Inspector of Police can exercise such

powers. In the Act the Police Officer can authorise any Police Officer not below such rank as the Government shall appoint in this behalf; whereas

in the Council Resolution the Police officer empowered must be above the rank of a Sergeant (Head Constable). Anyhow under both these

enactments if we so call them, an officer issuing the warrant may either himself enter or by his warrant authorise any officer of the police mentioned

therein to enter any such house, walled enclosure, room etc. etc. In the first place therefore, in my opinion the warrant could have been issued

under the provisions of the Act and not under the Council Resolution, which will be deemed to have been repealed by a regular enactment passed

by His Highness the Maharaja Sahib Bahadur. The warrant in question in this case is not under this Act at all. Its title is warrant ""Warrant Aam"" i.e.

General Warrant"" whereas it should have been a special warrant as required u/s 5 of the Act because that Section requires special particulars of

the house to be given in the warrant. Secondly as is necessary under both these pieces of legislation the warrant should be addressed to a

particular officer of the Police when it is to be executed by a person other than the officer issuing the same. In Section 5 the authority is to be given

to any officer of the Police not below the rank prescribed by the Government and under the Council Resolution the authority is to be given to any

Police Officer not below the rank of a Head Constable. This warrant does not bear any endorsement authorising any Officer of the Police either by

name or by designation to execute the same. It is a plain printed yellow paper purporting to be signed by the Superintendent of Police Kathua and

nothing more. As shall presently appear in the course of this judgment all warrants are to be executed by particular authorities in whose name they

are endorsed; particularly all special warrants like the one under the Act have to be more specific. I shall discuss this matter from more than one

angle. The warrant authorises a particular Officer to search the house and arrest people to seize such articles as can be used for gambling purposes

etc. Unless this power is given to any particular officer, may be even by designation, it cannot be acted upon. Let us imagine for the sake of

argument that this warrant which purports to be a general warrant came into the hands of a private citizen. Could a private citizen act and search

the house of Piayroo on the basis of this warrant and if he were assaulted what would be the offence committed? I do not think the law ever

envisaged investing of such important powers to any Tom, Dick and Harry. The powers can be exercised only by specified persons who have

been authorised to exercise them. It has been argued that under the Act no special form of warrant is mentioned. Then the warrant that must be

issued must be according to the Code of Criminal Procedure. Chapter VI (B) deals with warrants of arrest. Section 77 lays down the procedure

to whom warrant is to be directed, Section 79 deals specifically with warrants which are directed to Police Officer so on and so forth. u/s 75 the

warrants shall be in writing and signed by the Magistrate, u/s 77 the warrant of arrest shall be ordinarily directed to one or shall be ordinarily

directed to one or more Police officers and Section 79 authorises any Police Officer who has been directed to execute a warrant to authorise

another police officer to execute the same. Schedule v. Form II gives the form of a warrant u/s 75. The form is as under:

To (Name and designation of the person or persons who is or are to execute the warrant)

Whereas of ,.......... stands charged with the offence of (state the offence), you are hereby directed to arrest the said.. ""'"" and to pro duce him

before me. Herein fail not.

Date this day of ,

19

(Seal) (Signature)

The form clearly suggests that the warrant should be addressed to a parti cular officer and he is to be directed to execute the same. A warrant

without any such endorsement is illegal and has no legal force.

Now let me deal with the two cases separately. First under the Gambling Act and then under the different sections of the penal code as already

mentioned. When there is a defect in a warrant, the warrant is illegal. Reference may be made to ; Lalji and Others Vs. Emperor, . Most of these

authorities deal specifically with warrants under the Gambl ing Act.

In ILR Mad 873 : (A.I.R. 1928 Mad 624) it was held that:

A Magistrate cannot issue a warrant to a Forest Officer, unless the conditions specified in Section 77 of the Code of Criminal Procedure have

been fulfilled. Nor can such officer endorse it to a forest watcher, as Section 79 of the Code does not apply to Forest Officers.

In Lalji and Others Vs. Emperor, Justice Sapru has held that it is not necessary that the warrant under the Public Gambling Act should be directed

to one or more police officers but at the same time His Lordship held that:

it is important to ensure that the provisions of Section 5 which lay down the requirements of a legal warrant under the Gambling Act are complied

with strictly.

Where a warrant u/s 5 is defective, in that it does not state that the house which was to be searched was a common gambling house, no

presumption would arise that the accused found in the house had gathered there for the purpose of gambling. In such a case the prosecution will

have to prove by independent evidence affirmatively that the house in which the accused were found was being used as a common gaming house

or that the accused were in fact gambling. In the absence of such evidence, the defect in warrant is fatal and cannot be cured u/s 537, Criminal

P.C.

In AIR 1948 Lah 81 it was held by a Division Bench of that Court that:

The Warrant issued u/s 5 is a special Warrant and is not a general warrant of search which is usually issued under the provisions of Criminal P.C.

Section 5, Gambling Act, requires a Court to decide that a particular person should be entrusted with the execution of the warrant and therefore

the operation of Sections 75 and 79, Criminal P.C. is automatically barred. Hence w.here a warrant is issued u/s 5, Gambling Act to a particular

officer and that officer instead of executing it himself endorses it to another officer and the warrant is executed by such another officer, the

presumption u/s 6 cannot be raised.

A.I.R. 1962 Man 20 lays down that.

The Public Gambling Act does not make gambling in a private house illegal. Before issuing a search warrant u/s 5, the officer must have had

reliable information that the public servant concerned was using or keeping instruments of gaming in the Government quarters in his occupation for

his profit or gain. It was not enough therefore to say, particularly when the person concerned was a public servant and the house concerned was

Government quarters in his occupation, that the house was used as a place of gambling. In the warrant the house should have been described and it

ought to have been stated that the house was used as a common gaming house.

A.I.R. 1945 Nag 216 simply says that warrant issued u/s 5 of the Gambling Act may be endorsed in ac cordance with the provisions of Sec 79 of

the Code, which means that it accepts the principle that the warrant must be endorsed to a particular officer but it differs from AIR 1948 Lah 81 in

so far as that authority laid down that warrant cannot be further endorsed by the Police Officer u/s 79 of the Code of Criminal Procedure.

AIR 1929 Bom 157 is a Division Bench authority and it takes the same view as AIR 1948 Lah 81 and lays down that a warrant u/s 5 of the

Public Gambling Act is a special warrant. It authorises the officer or officers named therein to do all the things that are detailed in the warrant. It

cannot be endorsed over to any other Police Officer of similar rank. The only person who can execute such a warrant is the officer who is named

in the warrant.

9 AIR 1951 Guj 5 goes one step further. It says that

A special warrant issued u/s 6 should be one which is specially directed to a Police Officer by name. Where the name of the Sub-Inspector is not

mentioned in the warrant and it is simply addressed to the S. I. of Police of a certain Police Station the warrant does not supply the requirements of

a warrant u/s 6 and the presumption u/s 7 cannot arise.

Taking the highest common factor of all these authorities it can safely be said that a warrant under the Act must be endorsed to a Police Officer. As

already indicated the authorities go so far to say that it must be endorsed to a Police Officer by name and secondly that it cannot be further

endorsed in favour of another officer.

Another point which is necessary is that before issuing a warrant u/s 5 of the Act, the officer issuing the warrant has to come to a conclusion

that the particular place is used as a ""common gaming house"". The finding must be there that the house to be searched is used as a common gaming

house otherwise the warrant will be imperfect and illegal. But the warrant in question does not contain any such finding. All that it says is that

......... ...... Keh bamakan mahedood masammi Piyaroo Wald Kripa Ram Sikahnagri norol mohallah men qamar bazi hoti hai

There is no finding that this house is used as a common gaming house. Further the warrant clearly states that ""you are directed to do this thing.

Who is this ""you"" is not at all clear from this warrant and therefore this warrant, to say the lest, is not under ,the relevant law, is as such defective

and has not been endorsed and does not fulfil the requirements of law as discussed in detail above. Therefore any proceedings taken on the ground

of this warrant will be illegal and no prosecution can be launched against Piayroo and others u/s 3/4 of the Act. Therefore the conclusion of the

Chief Judicial Magistrate, Kathua so far as this case is concerned is perfectly sound though the grounds are different.

Now let us take the other case under the Penal Code against 13 accused persons, It is clear that the warrant on the basis of which the whole

search and arrests were made was an illegal warrant. This is now a settled point in criminal law that no person can be prosecuted for an assault

much less punished for committing assault on a Police Officer who tries to arrest him on the basis of an illegal warrant or escapes from his arrest.

Authorities need not be multiplied but only a few may be mentioned viz. Madho Sonar Vs. Emperor, and Sitaram Ahir and Others Vs. Emperor, .

In Madho Sonar Vs. Emperor, a Police Officer conducted a search in the house of the accused, who did not reside within the limits of his

jurisdiction. He was assaulted and the accused prosected for an offence u/s 353, IPC It was held that no offence was committed because the

officer was expected to comply scrupulously with the provisions of law particularly in search cases,

In AIR 1921 Lah 236 (1) the warrant was addressed to 'the bailiff of the court' whoever that official may be, and was executed by Naib Nazir

and process-servers without any endorsement by the bailiff. It was held that such service of the warrant was illegal.

In AIR 1930 Lah 348 it was held that:â€

If without any emergency for arrest contemplated by Section 151, a police officer arrests or attempts to arrest a person, the arrest or the attempt

to arrest is not only not strictly justified by law but is illegal and the person who is arrested or attempted to be arrested is entitled to offer

resistance. If further, such person apprehends hurt at the hands of armed constables sent for arrest and such constables use criminal force towards

such person who retaliates it causing them simple injury it cannot be said that he has exceeded his right of private defence.

In Sitaram Ahir and Others Vs. Emperor, a Sub-Inspector attempted to search a house without a search warrant. He was not authorised to

investigate the offence. He had not recorded in writing his grounds for wishing to make the search nor did he specify the thing for which search was

to be made. It was held:â€

That the Sub-Inspector was not acting in the lawful discharge of his duty or in the execution of his duty as a Sub-Inspector so as to bring the acts

of the accused persons who assumed threatening attitude within the mischief of Section 353.

I have mentioned only a few authorities otherwise there are a number of decided cases laying down the above principle. Therefore as the warrant

upon which the search was effected and the arrests made, was illegal, any resistance offered by the accused in that case was justified and the

accused could not be prosecuted for any of the offences mentioned in the challan.

An objection was taken by the learned Additional Advocate General that the word ""discharge"" was wrongly used in the order of the Chief

Judicial Magistrate. The accused should have been acquitted and a revision could lie only in one of the cases and not in both. But as the whole

record is before this Court, this Court has ample power to pass any orders which are proper in the case.

The result is that the reference made by the Sessions Judge. Kathua, is rejected and the order of the Chief Judicial Magistrate, Kathua, is

upheld and the accused in both the cases are hereby acquitted.