# Rasheed Ahmed Revisionist v. State of U.P

- **Citation:** (2024) 3 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-11
- **Case number:** Criminal Revision No. 1021 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rasheed-ahmed-revisionist-v-state-of-u-p-51651
- **Pages:** 5

## Headnote

Criminal Law - Public Gambling Act, 1867
- Section 13 - Code of Criminal Procedure,
1973 - Sections 397, 401 & 360 -
Probation
of
Offenders
Act,
1958
-
Sections 4 & 12 - Criminal Revision - Rasheed
Ahmed Vs St. of U.P., Criminal Revision No.
1021 of 2023 - Revisionist challenged conviction
under Section 13 for gambling, sentenced to
Rs.100 fine and custody till court rising, alleging
denial of probation benefits and improper
conviction. Court held: (1) FIR alleged gambling
inside a private hut, not a public place as
required under Section 13, rendering offence
not made out. (2) Conviction based solely on
confession invalid, as it was made due to
poverty and inability to contest, not voluntary
understanding of charges. (3) Trial court failed
to assess if prosecution allegations constituted
offence, mechanically taking cognizance on
proforma. (4) Sentence of both fine and
imprisonment illegal under Section 13 (U.P.
amendment), which allows either fine (Rs.50250) or imprisonment (up to one month) for
first offence. (5) Denial of probation under
Section 4 of the 1958 Act without reasons
violated Section 361 Cr.P.C. Revision allowed;
conviction and sentence set aside; revisionist
acquitted. (Paras 16-24)
Revision Allowed.

## Text

78 INDIAN LAW REPORTS ALLAHABAD SERIES
which is liable to be dismissed and is
hereby dismissed accordingly.
----------
(2024) 3 ILRA 78
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 1021 of 2023

Rasheed Ahmed ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Amit Chaudhary, Mahendra Kumar Yadav

Counsel for the Opposite Party:
G.A.

Criminal Law - Public Gambling Act, 1867
- Section 13 - Code of Criminal Procedure,
1973 - Sections 397, 401 & 360 -
Probation
of
Offenders
Act,
1958
-
Sections 4 & 12 - Criminal Revision - Rasheed
Ahmed Vs St. of U.P., Criminal Revision No.
1021 of 2023 - Revisionist challenged conviction
under Section 13 for gambling, sentenced to
Rs.100 fine and custody till court rising, alleging
denial of probation benefits and improper
conviction. Court held: (1) FIR alleged gambling
inside a private hut, not a public place as
required under Section 13, rendering offence
not made out. (2) Conviction based solely on
confession invalid, as it was made due to
poverty and inability to contest, not voluntary
understanding of charges. (3) Trial court failed
to assess if prosecution allegations constituted
offence, mechanically taking cognizance on
proforma. (4) Sentence of both fine and
imprisonment illegal under Section 13 (U.P.
amendment), which allows either fine (Rs.50250) or imprisonment (up to one month) for
first offence. (5) Denial of probation under
Section 4 of the 1958 Act without reasons
violated Section 361 Cr.P.C. Revision allowed;
conviction and sentence set aside; revisionist
acquitted. (Paras 16-24)
Revision Allowed.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. By means of the instant criminal
revision filed under Section 397/401
Cr.P.C. the revisionist has challenged the
validity of the judgment and order dated
05.11.2020, passed by the learned Chief
Judicial Magistrate, Faizabad in Criminal
Case No.11109 of 2018 arising out of Case
Crime No.52 of 2018, under Section 13 of
the Gambling Act, Police Station Kotwali
Rudauli, District Faizabad, whereby the
revisionist has been convicted for the
aforesaid offence on the basis of his
confession and has been sentenced to pay a
fine of Rs.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.

2. Sri. Amit Chaudhry, the learned
counsel for the revisionist has submitted
that the revisionist has no criminal history
and, therefore, he was entitled to be granted
benefit of provisions of Section 4 of the
Probation
of
Offenders
Act,
1958
(hereinafter referred to as the 'Act of
1958'). In that case the revisionist would be
entitled to the benefit of Section 12 of the
Act, 1958, which provides that a person
found guilty of the offence and dealt with
under the provisions of Section 3/4 of the
Act, 1958 shall not suffer disqualification,
if any, attaching to a conviction of an
offence under such law.

3. The learned counsel for the
revisionist has submitted that Section 361
Cr.P.C. provides that whether a court could
have dealt with an accused person under
the provisions of Section 360 Cr.P.C. or
provisions of Act, 1958, but it has not done
3 All. Rasheed Ahmed Vs. State of U.P.
79
so, it shall record in its judgment the
special reasons for not having done so,
whereas no reason has been recorded in the
impugned order for denial of benefit of
Section 4 of the Act, 1958 to the
revisionist.

4. Per contra, the learned A.G.A. - I
has submitted that Section 4 of the Act of
1958 merely provides for release of the
offender on probation of good conduct, but
it does not provide for setting aside his
conviction.

5. In reply to this submission of the
learned A.G.A.-I, the learned Counsel for
the revisionist has submitted that Section
12 of the Act of 1958 provides that a person
found guilty of an offence and dealt with
under the provisions of Section 3 or Section
4 shall not suffer any disqualification
attaching to a conviction of an offence
under such law. Therefore, he confines his
submission for the revisionist being granted
the benefit of Section 4 of the Act of 1958,
which would result in removal of the
disqualification attached with the applicant
being guilty of committing an offence.

6. Having heard the submissions of
the learned Counsel for the revisionist and
the learned A.G.A.-I, I proceeded to peruse
the record of the case. In the memo of the
revision, the validity of the order of
sentence has also been 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.

7. Section 13 of the Public Gambling
Act, 1867 provides as follows: -

"13. Gaming and setting birds
and animals to fight in public streets.-A
police-officer
may
apprehend
without
warrant-any person found playing for
money or other valuable thing with cards,
dice, counters or other instruments of
gaming, used in playing any game not
being a game of mere skill in any public
street, place or thoroughfare situated
within the limits aforesaid, or

any person setting any birds or
animals to fight in any public street, place
or thoroughfare situated within the limits
aforesaid, or

any person there present aiding
and abetting such public fighting of birds
and animals.

Such person when apprehended
shall be brought without delay before a
Magistrate, and shall be liable to a fine not
exceeding
fifty
rupees,
or
to
imprisonment, either simple or rigorous,
for any term not exceeding one calendar
month;

Destruction of instruments of
gaming found in public streets.-Any such
police-officer may seize all instruments of
gaming found in such public place or on
the person of those whom he shall so
arrest, and the Magistrate may on
conviction of the offender order such
instruments to be forthwith destroyed."

8. The provisions of Section 13 have
been amended in their application to the
State of U.P. by U. P. Act No. 21 of 1961
and Section 13 of the Gambling Act 1867,
as it applies to the State of Uttar Pradesh,
provides as follows: -

"13. Gaming and setting
birds and animals to fight in public
streets.-A police-officer may apprehend
without warrant-any person found gaming
in any public street, place or thoroughfare
situated within the limits aforesaid, or

any person setting any birds or
animals to fight in any public street, place
80 INDIAN LAW REPORTS ALLAHABAD SERIES
or thoroughfare situated within the limits
aforesaid, or

any person found in any public
street, place or thoroughfare within the
limits aforesaid with any instruments of
gaming; or;

or any person there present
making preparation for or aiding or
abetting such gaming orpublic fighting of
birds or animals.

Such person when apprehended
shall be brought without delay before a
Magistrate, and shall be liable - in the case
of a first offence to a fine not exceeding
two hundred and fifty rupees nor less than
fifty rupees; or to rigorous imprisonment
for a term not exceeding one month; and

in the case of any subsequent
offence to a fine not exceeding five hundred
rupees nor less than one hundred rupees
and rigorous imprisonment for a term not
exceeding six months nor less than one
month.

Destruction of instruments of
gaming found in public streets.-Any such
police-officer may seize all instruments of
gaming found in such public place or on
the person of those whom he shall so
arrest, and the Magistrate may on
conviction of the offender order such
instruments to be forthwith destroyed."

9. The maximum fine that can be
imposed under Section 13 of the Gambling
Act for an offence committed in the State
of Uttar Pradesh, is Rs.250/-. Therefore, the
fine of Rs.100/- imposed on the revisionist
does not exceed the maximum permissible
limit of fine.

10. However, the conviction and
the sentence imposed appear to be illegal
for other reasons which are being stated
hereinbelow.

11. The impugned judgment does not
contain any narration of the prosecution
case and it has held the revisionist guilty
merely on his admission.

12. The present matter arose
from F.I.R. No. 50 of 2018 lodged by a
Sub-Inspector of Police in Police Station
Kotwali Rudauli, District Barabanki, on
09.02.2018 at 20:30 hours, alleging that
upon receiving information from a Mukhbir
(informer),
that
some
persons
were
gambling inside a hut in the grove of one
Anjum, a police team reached there and
found that four persons, including the
revisionist, were playing a game of cards
involving gambling. All the four persons
were arrested on the spot. Rs.1,400/- were
recovered from the revisionist, Rs.1,000/-
were recovered from Mohammad Shafeeq,
Rs.800/- were recovered from Mohammad
Abid and Rs.1,200/- were recovered fro
Salauddeen.
52
playing
cards
and
Rs.1,900/-
were
recovered
from
a
polythene sheet laid there. Although several
persons had gathered there, no person
witnessed the recovery.

13. As per the entry made in the
General Diary of the police station, the
accused persons were arrested at 18:30
p.m. on 09.02.2018, they were lodged in
the lock-up at 20:29 hours on 09.02.2018.
The revisionist was released on bail at
08:17 hours on 10.02.2018.

14. A charge-sheet was submitted
on 14.03.2018 stating that from the
statement of the complainant, statement of
the witnesses, spot inspection and the
recovery made, offence under Section 13 of
the
Public
Gambling Act,
1867
is
established against all the accused persons.
However, no statement recorded by the
Investigating Officer has been annexed
with the charge-sheet.

15. The trial Court took cognizance of
the offence by means of an order dated
3 All. Rasheed Ahmed Vs. State of U.P.
81
15.06.2018 on a printed proforma stating
that the Court perused all the prosecution
documents and there was sufficient ground
to take cognizance of the offence.

16. Section 13 of the Public
Gambling Act provides that "A policeofficer may apprehend without warrantany 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. Therefore, from the allegations made
in the F.I.R. itself, the offence under
Section 13 of the Public Gambling Act,
1867 is not made out. The Investigating
Officer
has
not
carried
out
any
investigation and he has submitted a
charge-sheet in a mechanical manner.

17. The Trial Court also 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 and
passed the order taking cognizance of the
offence and summoning the accused
persons, by filling up the names of the
accused persons and other particulars on a
printed proforma, which practice has been
deprecated by the Superior Courts time and
again.
18. The revisionist appeared before the trial
Court on 05.11.2020 and he filed an
application stating that he is a poor person
and he is unable to contest the case. For
this reason, he stated that he wanted to get
the case disposed off on the basis of his
confession and it would be in the interest of
justice that the case be disposed off by
imposing the minimum fine against him.

19. In the impugned order dated
05.11.2020, the trial Court has recorded the
aforesaid fact and has held the revisionist
guilty on the basis of 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.

20. The sentence order records the
submission of the revisionist that he was a
poor and destitute person and he was
accordingly sentenced to pay a fine of
Rs.100/- and to remain in custody till the
rising of the Court. The revisionist had
already been in custody for a period since
18:30 p.m. on 09.02.2018 till 08:17 hours
on 10.02.2018 of about 2 years.

21. An offence under Section 13
committed in the State of Uttar Pradesh
carries a maximum punishment of fine of
an amount between Rs.50/- and Rs.250/- or
imprisonment for a maximum period of one
month. The trial Court could not have
punished the revisionist with fine and
imprisonment both.

22. The Courts are always under an
obligation to ensure that no injustice is
caused to any person and that no person is
denied the Fundamental Right of equal
protection of laws 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
82 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23. In view of the aforesaid
discussion, the order of conviction and
sentence imposed upon the revisionist on
the basis of his confession only, when the
offence is not made out even if the
prosecution case is accepted to be true, is
unsustainable in law and the same deserves
to be set aside.

24. Accordingly, the revision is
allowed and the judgment and order dated
05.11.2020, passed by the learned Chief
Judicial Magistrate, Faizabad in Criminal
Case No.11109 of 2018 arising out of Case
Crime No.52 of 2018, under Section 13 of
the Gambling Act, Police Station Kotwali
Rudauli, District Faizabad, whereby the
revisionist has been convicted for the
aforesaid offence on the basis of his
confession and has been sentenced to pay a
fine of Rs.100/- and to remain in custody
till the rising of the Court, is hereby set
aside and the revisionist is acquitted of the
charges.
----------
(2024) 3 ILRA 82
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 1059 of 2023

Juvenile 'X' ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Abhinav Srivastava, Rahul Srivastava
Counsel for the Opposite Party:
G.A.

Criminal Law - Juvenile Justice (Care and
Protection
of
Children)
Act,
2015
-
Sections 94, 102 & 18(3) - Indian Penal
Code, 1860 - Sections 363, 302, 201, 376
& 511 - POCSO Act, 2012 - Sections 7/8 -
Juvenile revisionist challenged order dated
07.07.2023 by Children's Court, dismissing
appeal against Juvenile Justice Board's order
(19.04.2022) to try him as an adult for heinous
offences (kidnapping, murder, attempted rape,
sexual assault on a 3.5-year-old girl). Court
held:
(1)
Juvenile
Justice
Board's
age
determination (16 years, 6 months) based on
school certificate (DOB 10.03.2001) under
Section 94(2)(i) was final, as unchallenged. (2)
Revisionist's claim of being 13 years, 11 months
based
on
High
School
marks-sheet
not
substantiated; original certificate's authenticity
upheld. (3) Board's decision to try juvenile as
adult
considered
psychiatric
report,
physical/mental capacity, and gravity of offence,
upheld by Children's Court. (4) No evidence of
arbitrary or illegal judicial process; revisionist's
grounds misconceived. (5) Heinous nature of
offence (murder, attempted rape) warranted no
leniency (Rishipal Singh Solanki Vs St. of U.P.,
(2022) 8 SCC 602; Sanjeev Kumar Gupta Vs St.
of U.P., (2019) 12 SCC 370; St. (UT of J&K) Vs
Shubam Sangra, 2022 SCC OnLine SC 1592;
Manoj Vs St. of Har., (2022) 6 SCC 187; Jyoti
Prakash Rai Vs St. of Bihar, AIR 2008 SC 1696).
Revision dismissed. (Paras 9-22)
Revision Dismissed.

Case Law Cited:
1. Rishipal Singh Solanki Vs St. of U.P., (2022) 8
SCC 602 (Para 10)

2. Sanjeev Kumar Gupta Vs St. of U.P., (2019)
12 SCC 370 (Para 11)

3. St. (UT of J&K) Vs Shubam Sangra, 2022 SCC
OnLine SC 1592 (Para 12)

4. Manoj Vs St. of Har., (2022) 6 SCC 187 (Para
13)

5. Jyoti Prakash Rai Vs St. of Bihar, AIR 2008 SC
1696
(Para
14)