Judgment These two petitions under section 439 of the Code of Criminal Procedure arise in the following circumstances. In C.C. No. 2256 of 966 in the Court of the Judicial Magistrate, Second Court, Hubli, 16 persons were accused of having committed an offence punishable under sections 79 and 80 of the Mysore Police Act. The learned Magistrate found all the accused guilty of those offences and sentenced each of them as stated by him in his order dated 15th July, 1967. They preferred an appeal against their conviction and sentence is the Court of the Additional Sessions Judge, Dharwar. The learned Sessions Judge altered the conviction of the accused by the Magistrate and convicted accused 1 to 4 under section 78(1)(b) and accused 4 to 16 under section 78(2) of the Mysore Police Act and sentenced accused 1 to 4 to pay a fine of Rs. 500 and accused 4 to 16 to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for one month. Against this order of conviction and sentence only 13 accused have came to this Court in revision. They are accused 1 to 5, 6, 8, 9, 10, 12, 14 to 16. This petition it numbered as Criminal Revision Petition No. 423 of 1968. On the same day 12 persons were charge-sheeted for offences punishable under sections 79 and 80 of the Mysore Police Act in C.C.No. 2255 of 1966. It may be noted that the first four accused in this case and in C.C. No. 2256 of 1966 are common. The learned Magistrate found accused 1 to 4 guilty of the offence under section 79 of the Mysore Police Act; accused 4 to 16 were found guilty of an offence under section 80 of the said Act and sentenced each of them as stated by him in his order. He also noted that no order regarding the dispersal of the property is passed until the case against accused No. 9 who is absconding is disposed of. None-the-less in the memorandum of appeal presented to the Sessions Court, Dharwar, he has been shows as one of the appellants. He also noted that no order regarding the dispersal of the property is passed until the case against accused No. 9 who is absconding is disposed of. None-the-less in the memorandum of appeal presented to the Sessions Court, Dharwar, he has been shows as one of the appellants. The learned Sessions Judge altered the finding of the learned Magistrate and found accused 1 to 4 guilty of an offence punishable under section 78(1) (b) and 5 to 8 and 10 to 12 of the offence punishable under section 78 (2) of the Mysore Police Act and sentenced accused 1 to 4 to pay a fine of Rs. 500 and accused 4 to 16 to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for one month. Against this order of conviction and sentence only seven accused have preferred revision petition No. 424 of 1968. These seven petitioners are accused 1 to 4, 7, 8 and 11 in the trial Court. In C.C. No. 2256 of 1966 out of which Criminal Revision Petition No. 423 of 1966 arises, the charge against the accused was based on the allegations that on 17th July, 1966 at about 10-30 p.m. all the four accused, i.e., accused 1 to 4 having the care and management of the New Merchants Recreation Association (hereinafter called the Club) at Hubli situated in the left wing of the building known as Ganesh Vilas Lodging, in the capacity of President, Vice President, Secretary and Treasurer respectively of the said club used the portion of the said building for the purpose of a common gaming house and knowingly or wilfully permitted the other accused 4 to 16 to play the game of ‘3 cards Rang’ which is a game of chance for their own benefit and gain and thereby accused 1 to 4 committed an offence punishable under section 79 of the Mysore Police Act. When the Police raided the building it was found that in the first room of the up-stairs accused 4 to 16 were actually found playing the game of ‘3 cards Rang’. The charge therefore against them was that they have committed an offence under section 80 of the Mysore Police Act. So far as the facts relating to Cr. When the Police raided the building it was found that in the first room of the up-stairs accused 4 to 16 were actually found playing the game of ‘3 cards Rang’. The charge therefore against them was that they have committed an offence under section 80 of the Mysore Police Act. So far as the facts relating to Cr. R.P. No. 424 of 1968 which arises out of C.C. No. 2255 of 1966 is concerned, the charge against them was that they have committed an offence punishable under sections 79 and 80 of the Mysore Police Act which was based an the allegation that the 12 accused were at the same time and on the same day were found in the opposite room of the said building playing a game of Andar-Bahar with stakes. So the 8 accused other than accused 1 to 4 were separately charged for an offence punishable under section 80 of the Mysore Police Act. These two cases were tried separately and the prosecution has led evidence to sustain the charge against the accused in both the cases separately. The defence of the accused in each of the two cases was that they have not committed the offences alleged against them. The learned Magistrate as already stated, convicted and sentenced the accused as already stated found the 16 accused in C.C. No. 2256 of 1966 guilty of the offences under sections 79 and 80 of the Mysore Police Act, ana sentenced each of them as stated in his order. On appeal, the learned Sessions Judge altered these findings and convicted accused 1 to 4 under section 78(1) (b) and others under section 78 (2) . To the same effect are the findings in C.C. No. 2255 of 1966. In these two petitions the common question that arises for consideration is whether the search made by the Deputy Superintendent of Police satisfies the requirements of the provisions of section 81 of the Mysore Police Act. The learned Magistrate held that it does, but the learned Sessions Judge did not agree with that conclusion and found that the search is not made in accordance with these provisions. Consequently, the learned Sessions Judge found that no presumption can be raised in favour of the prosecution under section 82 of the Mysore Police Act. The learned Magistrate held that it does, but the learned Sessions Judge did not agree with that conclusion and found that the search is not made in accordance with these provisions. Consequently, the learned Sessions Judge found that no presumption can be raised in favour of the prosecution under section 82 of the Mysore Police Act. Though he found that the search is not made in accordance with the provisions of section 81 , he none the less found accused 1 to 4 guilty of the offence under section 78(1) (b) and the other accused under section 78(2) of the Mysore Police Act. It is contended by Mr. R.M. Patil, the learned Counsel for the petitioners in both these petitions that if the finding of the learned Sessions Judge, that the search is illegal is correct and he maintains that it is correct-then the conviction of the petitioners in both the cases cannot be maintained. According to him, if the search warrant is illegal, then all proceedings pursuant thereto are illegal and the accused cannot be found guilty of any offence. He relies upon the provisions of section 81 of the Mysore Police Act which provides for a search by Police Officers in gaming house and states that the provisions of section 81 (ii) are applicable to the facts of this case, because it is a case which arises outside the City of Bangalore. Section 81 (ii) reads: “81. Entry, search, etc., by Police Officers in gaming house-It shall be lawful for a Police Officer, — (i)…….. Section 81 (ii) reads: “81. Entry, search, etc., by Police Officers in gaming house-It shall be lawful for a Police Officer, — (i)…….. (ii) elsewhere not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate, or by a Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police,- (a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any building, room, tent, enclosure, vehicle, vessel or place, which he has reason to suspect is used as a common gaming house or for the purpose of gaming or any of the objects referred to in sub- section (1) of section 78 ; (b) to search all parts of the building, room, tent, enclosure, vehicle, vessel or place which he shall have so entered, when he shall have reason 1o suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein, whether such persons are then actually gaming or not; (c) to take into custody and bring before a Magistrate all such persons; (d) to seize all instruments of gaming and all moneys and securities for money and articles of value which are reasonably suspected to have been used or intended to be used for the purpose of gaming and which are found therein: Provided that no officer shall be authorised by special warrant unless the Commissioner or Deputy Commissioner or Assistant Commissioner of Police or Magistrate or Superintendent, Assistant or Deputy Superintendent of Police concerned is satisfied, upon a complaint made before him on oath and upon making, such enquiry as he may think necessary, that there are good grounds to suspect the said building room, tent, enclosure, vehicle, vessel or place to be used as a common gaming house.” Therefore, if a search is to be made it is necessary that it should be made in accordance with the provisions of the proviso to section 81. Before a search is made or an authority is given for a search, it must be upon a complaint made before the officer concerned on oath and the officer concerned must be satisfied upon an enquiry that there are good grounds to suspect that the building is being used as a common gaming house. In the instant case, it is in evidence that Exhibit P-19 is the complaint made by one Hiremath, P.S.I., Hubli Suburb to the Deputy Superintendent of Police, Hubli Division, on nth July, 1966 stating that there is reliable information that the persons mentioned therein who are the office-bearers of the New Merchants’ Recreation Association, Hubli, are allowing the non-members to play the game of Ander-Bahar for their benefit and gain inside the Club and prayed for issue of a search warrant under section 81 of the Mysore Police Act in his name to enable him to effect a search of the premises of the Club. The Deputy Superintendent of Police has made an endorsement on that complaint as follows: “Verified the truth of the complaint and satisfied myself after necessary further enquiry. Search warrant is not issued and I personally raided the house No. 18#x002F;2 on 17th July, 1966.” Exhibit 20 is a statement made by the said Hiremath on oath before the Deputy Superintendent of Police, Hubli. This was also on nth July, 1966. It is obvious from the endorsement on the complaint that the Superintendent of Police did not issue any search warrant in the name of Hiremath on that day. The submission made by Mr. R.M. Patil, the learned Counsel for the petitioners is that in accordance with the proviso to section 81 of the Mysore Police Act the authority issuing the search warrant or itself conducting a search must be satisfied upon a complaint made before it on oath and on making such enquiry as he may think fit that there are good grounds to suspect that a building is being used as a common gaming house he may authorise a Police Officer by a special warrant to search the said building or he may himself carry out the search. It is submitted that in the instant case, the Superintendent of Police has effected the search without following the procedure laid down in section 81 of the Mysore Police Act. It is submitted that in the instant case, the Superintendent of Police has effected the search without following the procedure laid down in section 81 of the Mysore Police Act. There was no complaint before him on 17th July, 1969 and neither was there any statement made on oath nor was there any evidence to show that there are good grounds for suspecting that the house was being used as a common gaming house; the only complaint which is on record is Exhibit 19 and the statement made by Sri Hiremath in support of his complaint. But the Deputy Superintendent of Police, it is maintained, has not acted on the complaint of Sri Hiremath. It is also maintained that it is clearly admitted by the Deputy Superintendent of Police in his evidence as follows: “On 17th July, 1966 at about 9-30 p.m. I got credible information to the effect that in the said building gambling such as 3 card's play and Andar Bahar game were regularly being played”. It is also stated by him in Exhibit P-21 the complaint filed by him on 17th July, 1966. that the four persons mentioned therein were the office-bearers of the Club and they were allowing other persons to make use of the building as a common gaming house. He, therefore, secured the panchas and raided the house. Thus it is obvious that the search made by the Deputy Superintendent of Police was on the information received by him on 17th July, 1966 and not in pursuance of the complaint made by Sri Hiremath on 11th July, 1966. If that is so, then the Deputy Superintendent of Police has not acted in accordance with the provisions of section 81 of the Mysore Police Act. If the information which the Deputy Superintendent of Police received was by way of a complaint then that should have been made before him on oath. There is nothing on record to show that the Deputy Superintendent of Police made any enquiry in pursuance of the complaint made on 17th July, 1966 nor is there anything to show that he satisfied himself that there are good grounds to suspect that the house was being used as a common gaming house. Thus, the search made by the Deputy Superintendent of Police is clearly in violation of the provisions of section 81 of the Mysore Police Act. Thus, the search made by the Deputy Superintendent of Police is clearly in violation of the provisions of section 81 of the Mysore Police Act. However, it is maintained by Mr. Dayanand for the State Public Prosecutor that the Deputy Superintendent of Police is a person who is entitled to effect a search without there being any complaint before him. According to the learned Counsel that is only a procedure for the purpose of authorising the person concerned to effect a search by a special warrant, but if he himself is to effect a search, he maintains it is open for him to act on his own. Therefore, if he acts on his own, it could not be said that the search made by him is illegal. No doubt that proposition requires to be examined. Since the Deputy Superintendent of Police is entitled to authorise an officer not below the rank of a Sub-Inspector of Police by a special warrant to effect a search, then he himself may effect a search. He could not have delegated that power to an officer subordinate to him unless he himself had that power. No such argument was advanced in cither of the Courts below. However the question raised by the learned Counsel does not arise on the facts of the case because it is clearly admitted by the Deputy Superintendent of Police that he acted on the information received on 17th July, 1966. Therefore, if he had acted on the information received by him on 17th July, 1966, that information must be treated as a complaint; if it is a complaint, then it must be made on oath. Since that has not been done in the instant case, the search effected by the Deputy Superintendent of Police must be held to be illegal. That is also the finding of the learned Sessions Judge. Therefore, if the search effected is illegal then all proceedings subsequent thereto must be held to be illegal. Hence the accused cannot be found guilty of any offence as the whole thing from beginning to the end became illegal. That proposition finds support from a decision of this Court in Siddanna v. State of Mysore1 wherein it is held that a search warrant issued by a Magistrate which does not bear the seal of the Court is invalid. Hence the accused cannot be found guilty of any offence as the whole thing from beginning to the end became illegal. That proposition finds support from a decision of this Court in Siddanna v. State of Mysore1 wherein it is held that a search warrant issued by a Magistrate which does not bear the seal of the Court is invalid. Hence, on the basis of the recovery or seizure of articles effected in the course of search on the authority of such a warrant the prosecution cannot ask the Court to raise the presumption under section 7 of the Hyderabad Gambling Act. However, the learned Sessions Judge took the view that the accused in both the cases could be convicted under sections 78(1) (b) and 78(2) of the Mysore Police Act. In my opinion, the learned Sessions Judge was wrong in taking that view because having held that the search was ill gal, it was not open for him to find the accused guilty of the offences under the aforesaid sections. In my opinion, therefore, the conviction of the accused in both the cases by the learned Sessions Judge is illegal and has to be set aside. Since common question arises in both the petitions, I propose to dispose of both the petitions by this common judgment. In the result, I set aside the convictions and sentence imposed on the petitioners in each of these petitions and acquit them of the offences of which they have been found guilty. Consequently, both the petitions are allowed. Fine, if paid, by each of the petitioners in both the cases is directed to be refunded to each of them. S.V.S.-----Petition allowed.