Full Judgment Text
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PETITIONER:
JANARDAN
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT04/04/1978
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
SHINGAL, P.N.
CITATION:
1978 AIR 1234 1978 SCR (3) 586
1978 SCC (2) 465
ACT:
Bombay Prevention of Gambling Act, (Bom. Act IV of 1887),
1887, Section 6 read with Bombay Police Act, 1951 and S.- 17
of Bombay General Clauses Act, 1886-Ambit, scope and
interpretation of Section 6 of Gambling Act-Whether the
Assistant Commissioner of Police can validly issue search
warrant.
HEADNOTE:
The appellant along with sixteen others was convicted under
section 4 of the Gambling Act and sentenced to rigorous
imprisonment for two months and a fineof Rs. 400/- or in
default to suffer rigorous imprisonment for one month. The
appellant alone filed a revision before the High Court and
an appeal to thisCourt by obtaining a certificate from
the High Court. It was contended that the search warrant
issued by the Assistant Commissioner which formed the basis
of his conviction was legally invalid, and, therefore, the
conviction was not sustainable in law.
Dismissing the appeal. the Court
Per Fazal Ali, J.
HELD :1. The conviction of the appellant does not suffer
from any infirmity and must be upheld. But having regard to
the fact that the offence took place more than ten years
herein before, the interests of justice do not require that
he should be sent back to jail. [592 B-C]
[While maintaining the sentence of fine awarded under both
the Courts namely Sections 4 and 5 of the Gambling Act, the
sentences of imprisonment were modified to the period
already undergone]
2. It would be seen from a perusal of section 6 of the
Gambling Act that as the term ’Commissioner of Police’ has
not been defined any where in the Act it cannot per se
include an Assistant Commissioner and the provisions of the
Police Act which was passed long after the Gambling Act
could not be pressed into service, unless there was some
other Act which could make the provisions of the Police Act
applicable to the Gambling Act. Prima facie, therefore, the
contention of the appellant seems to be tenable. [589 G-H]
3. (a) Bombay General Clauses Act of 1886 was amended by Act
1 of 1904 which doubtless was an Act passed before the
coming into force of the Gambling Act. Section 17 of the
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Bombay General Clauses Act which remained unamended even
after the Amendment Act of 1904 runs thus :-
"17(1) In any Bombay Act made after the
commencement of this Act it shall be
sufficient for the purpose of indicating the
application of law to every person or number
of persons for the time being executing the
functions of an office, to mention the
official title of the officer at present
executing the functions, or that of the
officer by whom the functions are commonly
executed."
Analysing this definition it would appear that any official
title of the officer mentioned in any Act made after the
General Clauses Act would deem by fiction of law to include
any such official title referred to in any Act passed after
the General Clauses Act. Not only the official title but
even the functions" executed by the said officer would also
be deemed to have been exercised by the official designated
in the subsequent Act. The combined effect,therefore, f
587
section 6 of the Gambling Act and Section 17(1) of the
General Clauses Act would be that the term ’Commissioner of
Police’ would include all officers who are executing or
performing the functions of the Commissioner of Police as
definedor authorised under the latter Act, namely, the
Police Act.
[589 H, 590 C]
(b) A perusal of section 11 of the Police Act leads to the
inescapable conclusion that an Assistant Commissioner
appointed under subsection (1) is to perform such duties and
functions as can be exercised under the Act or any other law
for the time being in force, which undoubtedly includes the
Gambling Act which was a law in force at the time when the
Police Act was passed. Apart from this the Assistant
Commissioner could also perform those functions which could
be assigned to him by the Commissioner under the general or
special orders of the State Government. [591 A-B]
4. Having regard to the combined reading of the provisions
of section 17 of the General Clauses Act and the Police Act
the term ’Commissioner of Police’ appearing in section 6 of
the Gambling Act would include even an Assistant
Commissioner who was legally and validly assigned the
powers, functions and duties of the Commissioner of Police
by the State Government under section 10(2) of the Police
Act. As the General Clauses Act was a statute which was
passed before the Gambling Act came into force, section 17
of the General Clauses Act could be called into aid to
interpret the scope and ambit of the term ’Commissioner of
Police’ as used in section 6 of the Gambling Act.
[591 E-F]
5. To contend that the power of assignment of functions by
the Government given to the Commissioner of Police or the
Assistant Commissioner of Police could be exercised only in
respect of matters covered by the Police Act and not beyond
that is to overlook the avowed object of section 17 of the
General Clauses Act which has been passed to resolve such
anomalies and it is not possible to construe the provisions
of the Police Act in complete isolation by ignoring the
provisions of the General Clauses Act which undoubtedly
apply to the facts ,in Circumstances of the present case.
[591 G-H. 592
Per Shinghal, J.
1. Sub-section (2) of s. 17 of the Bombay General Clauses
Act. 1904, specifically provides that the section applies
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also to all Bombay Acts made before the commencement of the
Act. It would follow that section 17(1) is applicable to
the present controversy under the Gambling Act of 1887.
Under sub-section (1) it was therefore sufficient for the
purpose of indicating the application of at law to every
person "for the time being executing the functions of an
office" to mention the official title of the officer "at
present executing the functions." Accordingly it was enough
to mention the "Commissioner of Police" by his official
title for purposes of section 6 of the Gambling Act Is lie
was the functionary who was executing the functions referred
to in the section at the time when that Act came into force.
As section 17 of the Bombay General Clauses Act deals with
the substitution of functionaries, it enabled that
functionary to discharge the functions of the Commissioner
of Police under section 6(1) of the Gambling Act who was
"for the time being executing the functions" of that office.
In other words, as it was the Commissioner of police who bad
the authority to issue the special warrant under section
6(1) of the Act when it came into force, it-would be
permissible for the Assistant Commissioner of police to be
substituted for that functionary if it could be shown that
it was he who was executing the functions of the
Commissioner of police on the date of issue of the special
warrant referred to above i.e. on December 25, 1967. [593 D-
G]
2. Section 11(2) of the Bombay Police Act. 1961 provides
that an Assistant Commissioner of Police shall exercise such
powers and perform such duties and functions as can be
exercised or performed under the provision of that Act or
any other law for the time being in force or as are assigned
to him by the Commissioner under the general or special
orders of the State Government. The High Court has taken
note in this connection of the State Government’s order dt.
March 10. 1967. which empowered all Commissioners of Police
to
588
assign to the Assistant Commissioners of Police working
under them any of their powers, duties and functions not
only under the Police Act but also under any other law for
the time being in force. It is also not disputed that the
Commissioner of Police issued an order dated September 19,
1967 authorising all Assistant Commissioners of Police
working under him to issue search warrants under s. 6 of the
Act to any Police Officer working under them not below the
rank of a Sub-Inspector. This was legally permissible and
the High Court did not commit any error in taking that view.
[594 A. C, E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 36 of
1972.
From the Judgment and Order dated 8-11-1971 of the Bombay
High Court (Nagpur Bench) at Nagpur in Criminal Revision
Application No. 39 of 1971.
S. K. Mehta and K. R. Nagaraja for the, appellant.
M. C. Bhandare and M. N. Shroff for the Respondent.
The Judgments of the Court were delivered by
FAZAL ALI, J. This appeal by certificate granted by the
Bombay High Court raises an interesting question of law as
to the ambit, scope and interpretation of section 6 of the
Bombay Prevention or Gambing Act, 1887 (Act No. IV of 1887)
(hereinafter referred to as the Gambling Act) read with the
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Bombay Police Act, 1951 (hereinafter referred to as the
Police Act).
The appellant along with others was convicted under section
4 of the Gambling Act and sentenced to rigorous imprisonment
for two months and a fine of Rs. 400/- or in default to
suffer rigorous imprisonment for one month. He was also
convicted under section 5 of the Gambling Act and sentenced
to 7 days rigorous imprisonment and a fine of Rs. 501/-. 16
accused besides the appellant were convicted but the
appellant alone filed a revision before the High Court and
an appeal to this Court by obtaining a certificate from the
High Court’.
The facts of the case are not in dispute and counsel for the
appellant has not raised any question relating to the merits
of the case. In fact, all the three courts have
concurrently found that the offence against the appellant
has been established beyond any doubt and in view of the
concurrent finding of facts by the courts below there is no
question of arguing the case on merits.
One of the important points of, law which was urged before
the High Court as also before this Court was that the search
warrant issued by the Assistant Commissioner which formed
the basis of the conviction of the appellant was legally
invalid, and, therefore, the conviction was not sustainable
in law. It was also argued before the High Court that the
search warrant did not contain a full and complete
description of the hut where the game was being played but
the High Court has rightly repelled this contention on the
ground that the search warrant contained full description of
the place and this finding was not assailed before us also.
589
Thus, the entire. case turns upon the validity of the
search warrant ISsued by the Assistant Commissioner. In
this connection, it was submitted before us that under
section 6 of the Gambling Act it was lawful for the
Commissioner of Police to issue a search warrant but in the
instant case admittedly the search warrant was not issued by
the Commissioner of Police but by the Assistant
Commissioner. It was contended that as the Commissioner of
Police has not been defined in the Gambling Act so as to
include an Assistant Commissioner any warrant issued by the
Assistant Commissioner were legally invalid and could not be
acted upon. The High Court appears to have met this
argument on the ground that under the provisions of the
Police Act the term ’Commissioner of Police? includes an
Assistant Commissioner, and, therefore, the provisions of
section 6 of the Gambling Act were fully complied with
inasmuch as the, word ’Commissioner of Police? would
include, an .Assistant Commissioner also.
Learned counsel for the appellant however submitted that the
view taken by the High Court is legally erroneous because
the definition of the term ’Commissioner of Police’ in the
Police Act could not be imported into section 6 of the
Gambling Act. First, the term ’Commissioner of Police, was
not defined in the Gambling Act and secondly, the, Gambling
Act was passed long before the Police Act came into force.
In our opinion, the argument put forward by learned counsel
for the appellant merits serious consideration. It is no.
doubt true that the, Gambling Act does not at all contain
any definition of the word ’Commissioner of Police. In this
connection, the relevant part of section 6 of the Gambling
Act runs thus :-
"It shall be lawful for the Commissioner of
Police in the City of Bombay, and elsewhere
for any Magistrate of the First Class or any
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District Superintendent of Police or for any
Assistant superintendent empowered by
Government in this behalf, upon any complaint
made before him on oath, that there is reason
to suspect any house, room or place to be used
a common gaming-house,, and upon satisfying
himself after such enquiry as- he may think
necessary that there are good grounds for such
suspicion, to give authority, by special war-
rant under his band, when in his discretion be
shall think fit, to any Inspector, or other
superior officer of Police, of not less rank
than a chief constable................"
It would be seen from a perusal of section 6 of the Gambling
Act that as the term ’Commissioner of Police’ has not been
defined any where in the Act it cannot per se include an
Assistant Commissioner and the provisions of the Police Act
which was passed long after the Gambling Act could not be
pressed into service, unless there was some other Act which
could make the provisions of the Police Act applicable to
the Gambling Act Prima facie, therefore, the contention of
the appellant seems to be tenable. Our attention has
however been drawn to the Bombay General Clauses Act of 1886
as amended by Act 1 of 1904 which doubtless was an Act
passed before the coming into force
590
of the Gambling Act, Section 17 of the Bombay General
Clauses Act which remained unamended even after the
Amendment Act of 1904 runs thus :
"17(1) In any Bombay Act made after the
commencement of this Act it shall be
sufficient for the purpose of indicating the
application of a law to every person or number
0 persons for the time being executing the
functions of an office, to mention the
official title of the officer at present
executing the functions, or that of the
officer by whom the functions are commonly
execute’.
Analysing this definition it would appear that any official
title of the officer mentioned in any Act made after the
General Clauses Act would deem by fiction of law to include
any such official title referred to in any Act passed after
the General Clauses Act.
Furthermore, not only the official title but even the
functions executed by the said officer would also be deemed
to have been exercised by the officer designated in the
subsequent Act. The combined effect, therefore, of section
6 of the Gambling Act and section 17(1) of the General
Clauses Act would be that the term ’Commissioner of Police’
would include all officers who are executing or performing
the functions of the Commissioner of Police as defined or
authorised under the latter Act, namely, the Police Art. It
would thus be seen that sub-section (6) of section 2 of the
Police Act clearly mentions that the term ’Commissioner of
Police’ would include, an Assistant Commissioner. Thus.sub-
section (6) runs thus :
"2. In this Act, unless there is anything
repugnant in the subject or context
(6)............ A Commissioner of Police
including an Additional Commissioner of
Police, A Deputy Inspector General of Police
(including the Director of Police Wireless and
Deputy Inspector General of Police appointed
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under section 8A), a Deputy Commissioner of
Police and Assistant Commissioner of
Police.............
Section 11 of the Police Act runs thus
"11 (1) The State Government may appoint for
any area for which a Commissioner of Police
has been appointed under section 7 such number
of Assistant Commissioners of Police as it may
think expedient.
(2) An assistant Commissioner appointed under
subsection (1) shall exercise such powers and
perform such duties and functions as can be
exercised or performed under the provisions of
this Act or any other law for the time being
in force or as are assigned to him by the
Commissioner under the general or special
orders of State Government".
591
A perusal of section 11 of, the Police Act leads to the
inescapable conclusion that an Assistant Commissioner
appointed under sub-section (1) is to perform such duties
and functions as can exercised- under the Act or any other
law for the time being in force, which undoubtedly includes
the Gambling Act which was a law in force at the time when
the Police Act was passed. Apart from this the, Assistant
Commissioner could also perform those functions which could
be assigned to him by the Commissioner under the general or
special orders of the State Government. The provision for
assignment of powers by the Government to the Commissioner
are contained in section 10(2) of the
Police Act which runs thus
"10(2) Every such Deputy Commissioner shall,
under the orders of the Commissioner, exercise
and perform any of the powers, functions and
duties of the Commissioner to be exercised or
performed by him under the provisions of this
Act or any other law for the time being in
force in accordance with the general or
special orders of the State Government made in
this behalf".
The High Court has found as a fact that there was a
notification by the State Government dated 10th March, 1967
by which all the Assistant Commissioners of Police including
that of Nagpur were conferred powers and functions of the
Commissioner of Police. Thus, in,the instant case at the
time when the offence was committed two things had happened,
(1) that in Nagpur where the offence had taken place there
was a Commissioner of Police, and (2) that the Commissioner
of Police had been conferred the power by the Government
Notification to assign his functions, powers and duties to
the Assistant Commissioner. In these circumstances,
therefore, we do not find any difficulty in accepting the
contention of the respondent that having regard to the
combined reading of the provisions of section 17 of the
General Clauses, Act and the Police Act the term
’Commissioner of Police’ appearing in section 6 of he
Gambling Act would include even an Assistant Commissioner’
who was legally and validly assigned the powers, functions
and duties of the Commissioner of Police by the State
Government under section 10(2) of the Police Act. As the
Central Clauses Act was a statute which was passed before
the Gambling Act came info force. section 17 of the General
Clauses Act could be called into aid to interpret the scope
and ambit of the term ’Commissioner of Police’ as used in
section 6 of the Gambling Act.
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Learned counsel for the appellant however submitted that the
power of assignment of functions by the Government given to
the Commissioner of Police or the Assistant Commissioner
could be exercised only in respect of matters covered by the
Police Act and not beyond that. I am however unable to
agree with this contention which completely overlooks the
avowed object of section 17 of the General Clauses Act which
has been passed to resolve such anomalies and it is not
possible to construe the provisions of the police Act in
complete isolation by ignoring the provisions of the General
Clauses Act which
592
undoubtedly apply to the facts and circumstances of the
present case. For these reasons, therefore, the second
contention put. forward by the appellant also fails.
I am, therefore, satisfied that the conviction of the
appellant does not suffer from any infirmity but having
regard to the fact that the offence took place more than 10
years herein before I feel that the interests of justice do
not require that the appellant should be sent back to jail.
I would, therefore, while upholding the conviction of the
appellant under sections 4 and 5 of the Gambling Act reduce
the sentence of imprisonment to the period already served
maintains the sentence of fine awarded under both the
counts, namely, sections 4 and 5 of the Gambing Act. With
this modification only the appeal is dismissed.
SHINGHAL, J., While agree with the conclusion arrived at by
my brother Fazal Ali, I would like to state my reasons for
the same.
This appeal by a certificate of the Bombay High Court is
directed against its judgment dated November 8, 1971, by
which it dismissed the petition for revising the appellate
judgment of the Additional Sessions Judge of Nagpur
upholding the conviction of the revision petitioner. ’This
trial court convicted appellant Janardhan of an offence
under section 4 of the Bombay Prevention of Gambling Act,
1887, hereinafter referred to as the Act, and sentenced him
to rigorous imprisonment for two months and a fine of Rs.
400/-, or in default of payment of fine to undergo further
rigorous imprisonment for one month. The remaining accused
(except accused No,. 15) were convicted of an offence under
section 5 of the Act, and were sentenced to rigorous
imprisonment for 7 days and a fine of Rs. 501- each. This
appeal relates to appellant Janardhan.
It was alleged against the appellant that be, was keeping a
common gaming house in a hut in Nagpur which was in his
occupation. , The Assistant Commissioner’ of Police issued a
special warrant of entry and search under section 6 of the
Act on December 25, 1967, which was valid upto December 31,
1967, empowering the Police Inspector to enter and search
the appellant’s hut as it was suspected to be used as common
gaming house. This was done by the Police Inspector on
December 27, 1967, when he found that the other accused were
indulging in gaming and the appellant was accepting the nal.
They were accordingly apprehended and were challenged and
convicted as aforesaid.
It has been argued before us that the special warrant under
section 6 of the Act, referred to above, could be issued
only by the Commissioner of Police, and not by the Assistant
Commissioner of Police, so that the warrant under which the
entry and the search were made in the appellant’s hut was
unauthorised and invalid and that the High Court erred in
taking a contrary view.
Section 6 (1) (i) of the Act with which we are concerned in
this case provides for entry and search in gaming houses,
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inter alia, by the following Police. Officers,-
593
"6(1) (i) in any area for which a Commissioner
of Police has been appointed not below the
rank of a Sub-Inspector and either empowered
by general order in writing or authorised in
each case by special warrant issued by the
Commissioner of Police..........."
The expression "Commissioner of Police" has however not been
defined in the Act.
The Bombay General Clauses Act, 1904, does not also define
the expression "Commissioner of Police." Section 17 of that
Act appears under the rubric "Powers and Functionaries" and
reads as follows,-
"17. (1)In any Bombay Act or Maharashtra
Act made after the commencement of this Act it
shall be sufficient for the purpose of
indicating the application of a law to every
person or number of persons for the
time being executing the functions of an
office, to, mention the official title of the
officer at present executing the functions, or
that of the officer by whom the functions are
commonly executed."
Sub-section (2) of the section specifically provides that
the section applies also to all Bombay Acts made before the
commencement of the Bombay General Clauses Act, 1904. It
would therefore follow that section 17(1) is applicable to
the present controversy. Under sub-section (1) of section
17 it was therefore sufficient for the purpose of indicating
the application of a law to every person "for the time being
executing the functions of an office" to mention the
official title of the officer "at present executing the
functions". Accordingly it was sufficient to mention the
"Commissioner of Police" by his official title for purposes
of section 6 of the Act as be was the functionary who was
executing the functions referred to in the section at the
time when the Act came into force. As section 17 of the
Bombay General Clauses Act deals with the substitution of
functionaries, it enabled that functionary to discharge the
functions ’of the Commissioner of Police under section 6(1)
of the Act who was "for the time being executing the
functions" of that office. In other words, as it was the
Commissioner of Police who had the authority to issue the
special warrant under section 6(1) of the Act when it came
into force, it would be permissible for the Assistant
Commissioner of Police to be substituted for that
functionary if it could be shown that it was he who was
executing the functions of the Commissioner of Police, on
the date of issue of the special warrant referred to, above
i.e. on December 25, 1967.
It remains for consideration whether the Assistant
Commissioner of Police could be said to be executing tile
functions of the Commissioner of Police under section 6(1)
of the Act at the time when lie issued the special warrant.
Reference in this connection may be made to section 11 (2)
of the Bombay Police Act, 195 1, which provides as
follows,--
594
.lm15
"11(2). An Assistant Commissioner appointed under
subsection (1) shall exercise such powers and perform such
duties and functions as can be exercised or performed under
the provisions of this Act or any other law for the time
being in force or as are assigned to him by the Commissioner
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under the General or Special orders of the State
Government."
It was therefore permissible for the Assistant Commissioner
of Police not only to exercise such powers and perform such
duties and functions as he could, in terms, exercise or
perform under the provisions of the Bombay Police Act, or
any other law for the time being in force, but also the
duties and functions assigned to him by the Commissioner of
Police under the general or special orders of the State
Government. The High Court has taken note in this connec-
tion of the State Government Order No. APO-2463-C-2896-
(III)(E)-V. dated March 10, 1967, which empowered all
Commissioners of Police to assign to the Assistant
Commissioners of Police working under them any of their
powers, duties and functions not only under the provisions
of the Bombay Police Act, 1951, but also under any other law
for the time being in force. The existence of such an order
has not in fact been challenged before us. The Assistant
Commissioner of Police was therefore the functionary who
could, by virtue of section 17 of the Bombay General Clauses
Act, discharge the functions of the Commissioner of Police
under section 6(1) of the Act in the matter of issuing a
special warrant like, the one issued in the present case.
It is also not disputed that the Commissioner of Police
issued Order No. 2036 dated September 19, 1967, authorising
all Assistant Commissioners of Police working under him to
issue search warrants under section 6 of the Act to any
Police Officer working under them not below the rank of a
Sub-Inspector of Police. As has been shown, this was
legally permissible, and it is futile to contend that the
High Court erred in rejecting the appellant’s contention to
the contrary.
It however appears that in a matter like, this, when a
period of more than 7 years has gone by since the
appellant’s conviction,it would not be necessary to send him
back to prison. While therefore the appellant’s conviction
is upheld, the sentence, is reduced to the imprisonment
already undergone by him without, however, making any change
in the sentence of fine and.the imprisonment which has been
ordered in default of its payment.With this modification the
appeal fails and is dismissed.
S. R. Appeal dismissed.
595