EMPEROR Vs. DATTATRAYA SHANKAR PARANJPE

JUDGEMENT

(1.) This is a reference made by the Acting Third Presidency Magistrate under Section 432, Criminal Procedure Code. The question of law referred for our decision is formulated in this manner: Whether it must be established (1) that accused No. 2 levied a fixed commission, irrespective of the result of the gaming or (2) that at the outside he manipulated the conditions in such a manner that he cannot possibly lose.

(2.) The reference arises out of a, case under the Bombay Prevention of Gambling Act IV of 1887, as amended by later Acts including; the recent Act of 1922. The learned Magistrate has found that no presumption under Section 7 of the Act can be made in this case. The prosecution has to prove the existence of a "common gaming-house" as a fact in this case. A "common gaminghouse" let thus defined in the Act: Common gaming-house means a house, room or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place, whether by a charge for use of the instruments of gaming or of the house, room or place, or otherwise howsoever.

(3.) It is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in the house, room or place for the profit or gain of the person owning, occupying, using or keeping the house, room or place. It may be done by establishing that the person did so either by a charge for use of the instruments of gaming or of the house room or place, or otherwise howsoever. The expression "otherwise howsoever" appears to be very comprehensive, and does not suggest any limitation, such as is contended for on behalf of the accused.