S. 13 Public Gambling Act Is A Non-Cognizable Offence; Police Can't Investigate Without Magistrate's Order: Allahabad HC

Consequently, in view of Section 2 (l) & (c) r/w Section 155 (2) CrPC, a bench of Justice Sanjay Kumar Pachori clarified that no police officer can investigate the commission of this offence without an order of the Magistrate and no arrests can be made without a warrant.

The single judge thus allowed a plea seeking challenging a case under Section 13 of the 1867 Act as well as cognizance/ summoning order passed by the Additional Civil Judge (Senior Division)/F.T.C., Mirzapur.

Briefly put, the applicant was facing an FIR lodged by the local police based on the arrest of four accused persons, including the applicant, and the recovery of playing cards and currency.

The police completed the investigation in the matter as a State case and submitted a charge-sheet, upon which the Magistrate took cognizance.

Advocates Shrey Singh and Ragini Gupta, appearing for the applicant, submitted in the High Court that the offence under Section 13, as amended by the UP-Amendment Act No. 21 of 1961, constitutes a non-cognizable offence.

They relied upon Part II of the First Schedule of the CrPC, which provides that any offence punishable with imprisonment for less than three years falls within the category of a non-cognizable offence.

Therefore, it was argued that the IO had no power to start the investigation without the concerned Magistrate's prior permission.

The applicant also pointed out that the police submitted the report as a cognizable case after investigating a non-cognizable case without the required permission under Section 155(2) CrPC.

Additional Government Advocate Kamleshwar Singh, on the other hand, opposed the quashing plea.

Against this backdrop, the bench, after perusing Section 2 (l), (c) and 155 (2) of CrPC, agreed with the arguments of the counsels for the applicant that no police officer can investigate a non-cognizable offence without the order of the Magistrate, and even no arrests could be made without a warrant.

To determine whether Section 13 of the 1867 Act is a cognizable or non-cognizable offence, the bench noted that under the State amendment, the offence is punishable with imprisonment for not exceeding six months nor less than one month.

It further noted that as per Part II of the First Schedule of the CrPC, which classifies offences against other laws, any offence punishable with imprisonment for less than 3 years or with a fine only is deemed to be a non-cognizable offence.

Thus, effectively holding the offence to be a non-cognizable, the bench observed said that the charge-sheet was submitted for a non-cognizable offence without any prior order for investigation from the Magistrate having jurisdiction.

Significantly, the Court also took into account that there was no pre-summoning evidence showing that the alleged gambling took place in a public street or public place.

The High Court further found fault with the trial court for passing the cognisance order without considering the facts, circumstances and position of law.

Hence, the quashing application was allowed and the entire proceedings of the Criminal Case as well as cognizance/summoning order were quashed.