Gambling Inside A Hut Is Not An Offence U/S 13 Public Gambling Act: Allahabad High Court
The Allahabad High Court held that gambling inside hut is not an offence as it is not a public place as per Section 13 of Public Gambling Act, 1867.
The Court held thus while setting aside conviction of the accused who were found playing a game of cards involving gambling inside a hut.
The bench of Justice Subhash Vidyarthi while stating that the offence under Section 13 was not made out observed, “Section 13 of the Public Gambling Act provides that “A police-officer may apprehend without warrant—any person found gaming in any public street, place or thoroughfare situated within the limits aforesaid..” The F.I.R. in the present case stated that the accused persons were gamling inside a hut situated in the grove on one Anjum, which was not a public street, place or thoroughfare situated within the limits of any public place.”
The accused approached the High Court with the Criminal Revision petition which challenged the validity of the judgment and order of the lower Court which convicted them under Section 13 and sentenced him to a fine of ₹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.
As per the Counsel for the Revisionist, Advocate Amit Chaudhary, the accused was entitled to the benefit under Sections 4 and 12 of the 1958 Act according to which the offender could be released for good conduct and shall not suffer disqualification, if any, attaching to a conviction of an offence respectively.
As per the Court, the validity of the order of sentence was also 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. However, the Court found the fine right under the state amendment.
The Court stated that the conviction and sentence appeared to be illegal as there was no narration of the prosecution case in the impugned judgement and the revisionist was held guilty merely on his admission.
The High Court noted that though it was submitted in the chargesheet that offence under Section 13 was established against all the accused based on the statement of the complainant, statement of the witnesses, spot inspection and the recovery made. However, no such statement recorded by the Investigating Officer was annexed to the charge sheet.
Therefore, the Court concluded that the Investigating Officer did not carry out any investigation and mechanically submitted the charge sheet.
The Court further noted that the trial Court did not apply his mind to record a prima facie satisfaction as to whether the alleged offence was made out even if the F.I.R. allegations were assumed to be true. According to the Court, the lower Court passed the order taking cognizance of the offence and summoned the accused persons, by filling up the names of the accused persons and other particulars on a printed proforma, which practice, according to the Court was deprecated by the Superior Courts time and again.
Moreover, the Court noted that the accused filed an application where he mentioned his inability to contest the case as he was poor and wanted the Court to dispose of the case based on his confession.
“Such a confession made because of the compelling circumstance of the accused being unable to contest the case because of his poverty, is no confession in the eyes of law, particularly when the Court itself had not cared to examine that even if the prosecution allegations were taken to be true, the offence under Section 13 of the Public Gambling Act 1867 was not made out against the revisionist.” Court observed.
The Court further observed, “When an accused person makes a confession for the reason that he is unable to defend the prosecution case because of his poverty and destituteness, the Court’s duty to ensure that no injustice is caused to him and the equal protection of the laws is not denied to him, becomes even more onerous. The Court must consider whether the allegation against the accused make out a case for his conviction and sentence and whether the accused has made the confession after understanding the nature of allegation made against him and after understanding its consequences.”
The High Court observed that the order of conviction and sentence imposed upon the revisionist based on his confession only, when the offence was not made out even if the prosecution case was accepted to be true, was unsustainable in law and the same deserved to be set aside.
Consequently, it allowed the revision petition and set aside the order of the lower Court.
Cause Title: Rasheed Ahmed v. The State of U.P. (Neutral Citation: 2024:AHC-LKO:21388)
Appearance:
Adv. Amit Chaudhary, Adv. Mahendra Kumar Yadav
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