Judgment Bhimiah, J.—The State has filed this appeal against the order of acquittal of the respondents (accused) by the J.M.F.C. First Court, Dharwar. The respondents were charge-sheeted for offences under sections 79 and 80 of the Mysore Police Act. The prosecution case is that the police searched the house of respondent No. 6 at Joladpet in Kalaghatgi town under a search warrant issued by the Deputy Superintendent of Police, Dharwar. When the search was made, the respondents were found engaged in a gambling called “Andar Bahar” with stakes. The amount found was Rs. 170-9-0 with 52 playing cards. The respondents were charges-sheeted for the said offences. The accused-respondents pleaded not guilty to the accusation read out and explained to them. Thereafter, the prosecution adduced oral and documentary evidence to prove the accusation against them. Two witnesses: P.W. 1 Sub-Inspector of Police and P.W. 2 a Panch witness were examined; no defence witness was examined. The learned Magistrate gave a finding that the police seized playing cards and cash M.O. Nos. 1 to 20 but held that the prosecution failed to prove that the accused were playing “Andar Bahar”. In that view of the matter, he acquitted them. The present appeal is directed against the said order of acquittal. Mr. Havanur for the State Public Prosecutor firstly contended that the learned Magistrate has not assessed the evidence for the prosecution in a proper manner and the Judgment is, therefore, bad. Secondly, he contended that the learned Magistrate has failed to raise the statutory presumption under sub- section (2) of section 82 of the Police Act in spite of the fact that there was a validly issued warrant to recover all instruments of gaming and recovery of instruments of gaming. Thirdly, he contended that the defect, if any, in the accusation read and explained to the respondents, is a curable irregularity under section 537 of the Code of Criminal Procedure and it is not an illegality vitiating the trial. On the other hand, Mr. H.F.M. Reddy for the respondents urged that the accusation read out and explained to the respondents by the Magistrate does not draw the attention of the respondents to the essential ingredients of the offence that they were gaming in a common gaming house. He urged that non-compliance with the provisions of section 242, Criminal Procedure Code, is an illegality vitiating the trial. He urged that non-compliance with the provisions of section 242, Criminal Procedure Code, is an illegality vitiating the trial. Secondly, he contended that the prosecution has failed to prove that the respondents were playing “Andar Bahar” in a common gaming house. Therefore he urged that the order of acquittal deserves to be confirmed. We may straightaway say that the trial of the respondents and the judgment in question suffer from serious legal infirmities. The respondents are tried for offence under sections 79 and 80 of the Mysore Police Act (to be hereinafter called the Act). section 79 provides for punishment of a person who keeps a common gaming house. section 80 provides for punishment of a person found in a common gaming house or present for the purpose of gaming. Gaming as defined in section 2 (7) includes all forms of wagering or betting in connection with any game of chance, except wagering or betting on a horse-race, when such wagering or betting takes place under certain circumstances. “Common Gaming House” is defined in section 2 (3) of the Act. It means a building, room, tent, enclosure, vehicle, vessel or place in which instruments of gaming are kept for profit or gain of the person owning the house, or place and such profit may be derived by way of charge for the use of instruments of gaming or use of the place or subscription or payment for the use of vessels. section 242 of the Code of Criminal Procedure prescribes procedure to be followed in summons cases. It requires a magistrate to explain to the accused the substance of the accusation without framing a formal charge. It lays down: “When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge.” It is the duty of the Magistrate to state to the accused the particular of the offence of which he is accused. In the instant case, the accusation reads as under:— “It is alleged that you all on 25th April, 1968 at about 6-30 p.m. at Kalghatgi in the 1st floor of the house of accused No. 6 bearing T.P.C. No. 425 in Joladpet were found playing with cards for gain a play known as “Andar Bahar’ and thereby committed an offence punishable under sections 79 and 80 of the Mysore Police Act. What have you to say ?” It is needless to say that the accusation quoted above does not contain the particulars of the offence of which these respondents were accused. The particulars to be stated in an accusation are that the respondents were found gaming in a common gaming house of which respondent No. 6 was the owner. The learned State Public Prosecutor contended that though there was no specific reference to the common gaming house and also gaming, the mention of section 80 in the accusation is a sufficient compliance with the provisions of section 242 of the Code of Criminal Procedure. He further argued that the reference to the search warrant in the mahazar drawn at the time of seizing the instruments of gaming and the money was sufficient to indicate that the respondents were charged with an offence of gaming in a common gaming house. Nextly, he argued that non-compliance with section 242 of the Criminal Procedure Code is not an illegality vitiating the trial but an irregularity curable under section 537 of the Code of Criminal Procedure. The learned Advocate for the respondents invited our attention to a decision of this Court in Basha and others V. State of Mysore1, which is a complete answer to the contentions raised by the learned State Public Prosecutor. In this decision, a similar contention raised on behalf of the prosecution has been rejected. Tukol J., as he then was, while dealing with the first contention has observed as follows: “I do not think that the legal presumption that arises under the issue of a proper warrant by the Assistant Commissioner could be called in aid to fill up the lacuna in the particulars explained to the accused. The warrant issued by the Assistant Commissioner is a piece of evidence which will lighten the burden of the prosecution when leading evidence as to the nature of the place where gambling was found to have been indulged in. The warrant issued by the Assistant Commissioner is a piece of evidence which will lighten the burden of the prosecution when leading evidence as to the nature of the place where gambling was found to have been indulged in. From the mere fact that the question mentioned something about the search warrant, it would not be correct to infer that the accused were expressly told that they were gaming in a common gaming house.” In the instant case, we may point out that there is no reference to the search warrant issued by the Deputy Superintendent of Police. It finds a place only in the mahazar drawn at the time of seizure of the instruments of gaming. Whether non-compliance with the provisions of section 242 of the Code of Criminal Procedure is an illegality or an irregularity is also dealt with in the above decision. The learned Judge has observed as follows: “The learned Advocate appearing for the State drew my attention to section 536 and 537 of the Code of Criminal Procedure. The former refers to the effect of omission to prepare charge, while the latter provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered, in appeal or revision on account of any error, omission or irregularity in the charge summons, warrant, proclamation, order, etc. Both these sections are subject to one important clause and that is if the irregularity or omission is such as has evidently occasioned a failure of justice, then such irregularity or omission ought to be regarded as of material consequence in law. So the question that has to be determined is whether the omission to explain to the accused that they were found gaming in a common gaming house is such as could be said to have resulted in clear failure of justice or prejudice to the accused. In my opinion, if the particulars explained to the accused do not refer to the common gaming house, but merely refer to gaming with stakes in some house, their act would not be one punishable under section 80 of the Mysore Police Act. In my opinion, if the particulars explained to the accused do not refer to the common gaming house, but merely refer to gaming with stakes in some house, their act would not be one punishable under section 80 of the Mysore Police Act. There cannot therefore be any doubt in such circumstances in holding that the trial has resulted in miscarriage or failure of justice.” The learned State Public Prosecutor tried to distinguish the ratio of the above decision on the ground that it was a case where the accused had pleaded guilty and the substance did not contain portions constituting the offence and the accused who pleaded guilty had no opportunity to know the nature of the evidence against him. Therefore he contends that the ratio of the above decision does not hear on the facts of this case, as evidence was adduced in the case and the respondents had come to know that they were gaming in a common gaming house. Therefore, according to the learned State Public Prosecutor, the absence of words “common gaming house or gaming” in the accusation put to the respondents is not an illegality which vitiates the trial but it is an irregularity which is curable under section 537 of the Code of Criminal Procedure. We are unable to agree with the contention of the learned State Public Prosecutor. The ratio of the above decision is that if the particulars explained to the accused do not refer to the common gaming house but merely refer to a gaming with some stakes in some house, their act would not be one punishable under section 80. Similarly, in the instant case, when the accusation does not refer to the common gaming house but merely stated that they were found playing with cards for gaming, a play known as “Andar Bahar” would not amount to an offence punishable under section 80 of the Police Act. The learned Advocate for the respondents argued that the provisions of section 537 of the Code of Criminal Procedure would apply only in cases where the omission to explain to the accused that they were found gaming in a common gaming house, has resulted in prejudice to the respondents. The learned Advocate for the respondents argued that the provisions of section 537 of the Code of Criminal Procedure would apply only in cases where the omission to explain to the accused that they were found gaming in a common gaming house, has resulted in prejudice to the respondents. He urged that in the instant case, the respondents have been acquitted and the question prejudice does not arise and, therefore, the provisions of section 537 of the Criminal Procedure Code are in applicable. On the other hand, the contention of the learned State Public Prosecutor is that where by reason of any error, omission or irregularity for misdirection in the trial there has occasioned failure of justice, the provisions of section 537 of the Criminal Procedure Code are attracted. According to the learned State Public Prosecutor, there may be failure of justice even from the point of view of the prosecution if there is omission on the part of the trial Court to mention (he words “common gaming house” in the accusation. The non-mention of the words “common gaming house” in the accusation by the trial Court when there is evidence to record to show that the were gaming in such common gaming house is, in our opinion a case of failure of justice. In that view of the matter, the learned State Public Prosecutor urges that the order of acquittal now passed should be set aside and the case remanded for fresh disposal in accordance with law after stating the particulars of the accusation to the respondents. Mr. H.F.M. Reddy, learned Advocate for the respondents argued that nonmention of the words “common gaming house” in the accusation is a illegality and the trial could not proceed without stating the substance of the accusation. He contends that the failure to state the particulars of the accusation is an illegality and not a mere irregularity and therefore the case cannot be remanded for fresh trial. He further contended that the trial Court has failed to put the question to any one of these respondents that they were playing in a “common gaming house”, when the statements of the respondents were recorded under section 342 of the Criminal Procedure Code. He relied upon the decision in Emperor v. Abdur Rahman1 wherein it is held as follows:— “……..It is not necessary to specify particular items or exact dates. He relied upon the decision in Emperor v. Abdur Rahman1 wherein it is held as follows:— “……..It is not necessary to specify particular items or exact dates. Section 535 (1) and section 537 (a), Criminal Procedure Code, make it quite clear that when a Court of Appeal has before it the question of confirming or setting aside a conviction an omission by the trial Magistrate to frame a charge or an error or irregularity in the charge is no ground for setting aside a conviction unless a failure of justice has in fact been occasioned by such omission, error or irregularity. When, however, a Court of Appeal is dealing with an appeal against an acquittal there is no corresponding provision of the code under which a defect in the charge can be condoned and indeed no such provision could very well be framed.” The principle laid down in that decision is of no assistance in this case, because the present section 537, Criminal Procedure Code, is wide enough to include any finding, sentence or order passed by a Court of competent jurisdiction. The opening words of section 537, Criminal Procedure Code, read:— “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account……” Chapter XXVII deals with submission of sentence of death for confirmation by the High Court. Appeals and revisions are filed under Chapters XXXI and XXXII. Appeal in cases of acquittal under section 417 of the Criminal Procedure Code falls within Chapter XXXI under the heading “Appeals”. Therefore, it cannot be said that a Court of Appeal in an appeal against an acquittal cannot deal with the defects in the charge to find out whether such a defect has occasioned failure of justice. Mr. Reddy next placed reliance on the decision in Mulkaraj Bodharaj Chabra v. Nagpur Municipal Corporation, Nagpur2. It is of no assistance to him as the conviction in that case was set aside and the accused were acquitted on the ground that the learned Judge did not find from the record any particulars of accusation which the Magistrate was required to state to the accused, except that there was a mention in the order sheet. In the instant case, there is the accusation stated to the respondents, but the particulars are wanting. In the instant case, there is the accusation stated to the respondents, but the particulars are wanting. Therefore, the said decision is of no assistance to deal with the contention of Mr. Reddy on the question of remand. Thus, in our opinion, the provisions of section 537 of the Criminal Procedure Code come into play in appeals against acquittal, the Magistrates must bear in mind that non-compliance with the provisions of section 242, Criminal Procedure Code, is likely to result in prejudice or failure of justice to one side or the other. Undoubtedly, in the instant case, the trial on account of the omission to state the particulars of the accusation to the respondents has resulted in miscarriage or failure of justice. The learned State Public Prosecutor pointed out two serious infirmities in the judgment of the trial Court. It is pointed out by the learned State Public Prosecutor that the learned Magistrate has not raised the statutory presumption in the case as required under section 80 of the Police Act. He argued that there is a valid warrant issued in the case and that there is a finding by the Magistrate that instrument of gaming, namely, playing cards and cash M.O. Nos. 1 to 20 were recovered. Nextly, he contended that the assessment of the evidence by the learned Magistrate is bald and not proper. He took us through the judgment. We find that the learned Magistrate has not properly assessed the evidence in the case. Secondly, we find the learned Magistrate has misdirected himself on the question of law in not raising a presumption under section 80 of the Police Act. In view of his own finding that the police have seized the playing cards and cash M.O. Nos. 1 to 20, such a presumption was warranted, but the learned Magistrate has failed to do so. The trial of the respondents from the inception is, in our opinion, illegal, we are not satisfied with the procedure followed by the Magistrate. In view of his own finding that the police have seized the playing cards and cash M.O. Nos. 1 to 20, such a presumption was warranted, but the learned Magistrate has failed to do so. The trial of the respondents from the inception is, in our opinion, illegal, we are not satisfied with the procedure followed by the Magistrate. There is failure to comply with the mandatory provisions of section 242 of the Criminal Procedure Code and also an omission to question the respondents with regard to common gaming house, appearing in the evidence of the prosecution witnesses when statements of the respondents were recorded under section 342 of the Criminal Procedure Code, in the course of the judgment, there is failure to raise certain presumption under section 80 of the Police Act, in spite of a finding that the police have seized certain instruments of gaming. Therefore, we are clearly of the view that the entire trial has been vitiated on account of the non-compliance with certain provisions of Criminal Procedure Code and the Police Act. There must be good reasons to disturb the findings of the trial Court, but if the trial Court has misdirected itself either on questions of law or in appreciating the evidence before it and as a result arrived at conclusions which are wholly unreasonable and unsupportable in law, then it is the duty of this Court to interfere with the order of acquittal under appeal. Therefore, in view of the several infirmities pointed out above, we are inclined to think that the order of acquittal is wholly unsustainable in law. Accordingly, it is set aside and the case is remanded to the trial Court for fresh disposal according to law. We may point out in this case that accused No. 10 in the trial Court is not impleaded as respondent in this appeal. The Explanation of the learned State Public Prosecutor is that the Assistant Prosecutor, Dharwar, by oversight, had omitted to include his name in the appeal memo, prepared and sent to the Government. We are not satisfied with this Explanation. Such omissions are deprecated. Appeal allowed. S.V.S. ----- Appeal allowed; case remanded.