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TMI Blog1985 (4) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... e and violation of mandatory statutory formalities. It is true that Sec. 482 of the Code is a provision intended to be used in cases of grave and clear injustice in order to give effect to orders under the Code, prevent abuse of process of court or otherwise to secure the ends of justice, when no other specific provision is available. It cannot be used in trivial or doubtful cases of injustice. In the absence of other specific provisions the existing inherent power of the High Court is intended to be preserved and saved by the provision in order to give effect to orders, prevent abuses and secure ends of justice for which the court exists. The Section is not intended to create any non-existing right. The inherent power of the High Court is always there in spite of any provision or absence of any provision. Otherwise, instances may arise when the High Court may be without power in extreme cases. What the Section laysdown is only that no provision of the Code shall be construed as intended to restrict or affect such rights by their presence or absence. In cases where other remedies are available, the inherent power cannot be invoked. 2. In this case, if the allegations are correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the house, room, teat, enclosure, vehicle, vessel, or place or otherwise howsoever and include any house, room, tent enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming. 5. There is absolutely no allegation regarding the existence or preservation of a common gaming house. There is not even a whisper that the first petitioner is conducting or preserving such a house. So also, there is no allegation that the other petitioners or the other accused were present or engaged in gaming in such a common gaming house. Gaming in a private building or place is not made offences. There is nothing to show that it is intended to be prohibited also. Even if the entire averments in Annexures-A1 to A3 are taken as correct what is established is only that 8 persons were found gaining in a private apartment used as an office or residence. It is unconnected with a common gaming house. The words used are not gaming house , but common gaming house . Common gaming house indicates that it is a place intended and used frequently as a common place for the purpose. The existence of such place and gambling conducted there may be publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming, which are found therein; (d) search or authorise such officer to search all parts of such place, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein and also the person of those whom he or such officer so takes into custody; and (e) seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search. 9. Misuse of the power under Sec. 5 may entail penal consequences including those sections 6, 7 and 8 even on persons who are innocent. That is why the legislature in its wisdom wanted to place the restrictions embodied in Sec. 5. Therefore, the provisions of Sec. 5 will have to be taken as mandatory and observed strictly. Different states in India are having different legislations in this respect. Different kinds of restrictions are incorporated in those enactments intended for the same purpose. Noncompliance of the provisions must therefore vitiate the search and the entire consequential proceedings. Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision laid down that the warrant is to be in writing and must contain all the matters that the law requires to be stated therein. It was also held that oral statements intended to vary the terms of a warrant required by law to be in writing are not admissible. 12. Requirement of search warrant is there under Manipur Public Gaming Act also. In A. Manikchand v. Manipur Administration (AIR 1962 Man 20), it was observed: The Public Gambling Act does not make gambling in a private house illegal. Before issuing a search warrant under 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 being 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 gambling house. 13. Connected questions came up for consideration in Ramakrishna pillai v. State of Kerala (1964 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In re Chellakani Sahib (AIR 1945 Mad 105) and held: For an offence under S. 9 to be completed the accused person must have been found gaming or present for the purpose of gaming in a common gaming house and for a room to be a common gaming house within the meaning of S. 3 of the Act the cards, dice or other instruments of gaming must be kept or used for the profit or gain of the person owning occupying the room, and in the absence of evidence that the room was used as a common gaming house or a presumption as to that under S. 6 of the Act the accused cannot be convicted under S. 9 merely because he was found playing cards for money with others in the room. 17. If the principles laid down in the decisions mentioned above are taken into account, it is clear that the papers do not disclose commission of offences for which the 8 persons are charge sheeted. Annexures-A1 to A3 do not disclose any information under S. 5 or observance of formalities provided therein. There is no mention of any common gaming house. The Assistant Sub Inspector does not claim to have received any such information also. The only information he got was that some persons were gaming in a private apartment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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