According to a recent ruling by the Punjab and Haryana High Court, anyone accused of participating in betting and gambling in violation of Section 13A of the Public Gambling Act, 1867 commits a non-cognizable offence, making any investigation into the matter subject to prior Magistrate permission under Section 155 of the Criminal Procedure Code.
As a result, it was determined that the police raid on the defendant’s (Saurabh Verma) house without the magistrate’s permission was a serious procedural error that was enough to throw the case out of court.
The Bench of Justice Aman Chaudhary said, “The reply of the State does not disclose that there was an order passed by the Magistrate to investigate the non-cognizable offense as required under Sub Section 2 of Section 155 Cr.P.C. The procedural infirmity in this case goes to the root of the matter, vitiating the proceedings thus initiated.”
The issue before the court involved a raid by the police, who recovered Rs 1.23 crore from the house of the petitioner as well as a laptop and a cellphone after learning about the petitioner’s involvement in gambling through a covert source.
As a result, an FIR was filed under Section 13-A of the Public Gambling Act, 1867, and a charge-sheet was thereafter filed. The trial court also denied the petitioner’s request for a release on the grounds that there was only a prima facie case to be made at the time the charges were brought.
According to the High Court, it is illegal for the police to conduct an investigation into a non-cognizable offence without the consent of a competent magistrate.
The court further stated that, in accordance with Section 5 of the Act, the concerned police officer was not authorized to enter and search the petitioner’s home by way of the issuing of a warrant.
Additionally, the State has not made any explicit comments to support the police officer’s qualifications.
The court order said, “Adverting to the facts of the case in hand, indubitably it has not been brought out by the State that the police officer concerned was authorised to enter by way of issuance of a warrant and search the house of the petitioner, which is mandated as per Section 5 of the Act, a pre-requisite for which is that, upon receipt of credible information, the officer invested with power of Magistrate or District Superintendent of Police after conducting enquiry may either himself or by warrant authorise any other police officer to enter and search the place.”
“The paras of the present petition particularly 5A to 5M wherein grounds have been raised to substantiate that the FIR was a clear abuse of process of law have not been specifically responded to except for stating “that the position has already been explained in the forgoing paragraphs”, which have been reproduced hereinabove in this judgment, which also merely make a reference to the alleged recovery, investigation and confessional statement but nothing justifying either the competence of the officer or the registration of FIR in a non-cognizable offence or that the raid was conducted in pursuance of an order of the concerned Magistrate, passed after due enquiry on having received credible information.”
Regarding the distinguishing between cognizable and non-cognizable offences according to Schedule 2 of the Cr.P.C., the court remarked that the magistrate must give the smaller offence more attention.
The court came to the conclusion that the trial court made an error by moving forward with the charges based on the final report since the investigatiton could only have been conducted after following the provisions of the law.