KING EMPEROR Vs. MUSA

JUDGEMENT

(1.) The accused have been acquitted on a charge of an offence punishable under Section 3(10), Act III of 1889, because the lower Court was not satisfied on two points, that (1) the game was a game of chance, not skill and (2) it was being played in a place of public resort.

(2.) As regards the second point, the lower Court was moved by the fact that only a section of the general public, the Hindu community, has a right to go to the place and that others can go there only with the permission of the Dharmakartha of the adjoining temple. It is in evidence that the place, a small open space, is in no way closed by gates or otherwise; and there is no evidence that the Dharmakartha s alleged right of exclusion is ever exercised. The definition of a public place as one where the public go, whether they have a right to or not, in R. v. Wellard (1884) 14 L.R. Q.B.D. 63 has been adopted in this country. Hari Singh v. Jadu Nandan Singh (1904) I.L.R. 31 Calc. 542. In accordance with it, the lower Court s decision on this point cannot be sustained.

(3.) The description of the game played given in the lower Court s judgment is not demurred to by the Public Prosecutor or the accused, who unfortunately is not represented. There is then the finding that the game is one of skill, since the only element of chance in is is constituted by the possibility, which enters into almost all games, that an unskilful player may occasionally be successful. Such a finding was no doubt treated as decisive in accused s favour in Sari Singh v. King- Emperor (1907) 6 C.L.J. 708. But those proceedings were under Bengal Act II of 1867, by Section 10 of which games of mere skill are excepted from the general prohibition; and it is therefore unnecessary to consider the validity of the further distinction drawn in Ram Newaz Lal v. Emperor (1914) 23 I.C. 484 that the skill in question is that of two competing parties, not, as here, that employed by the competitors against the accused, by whom the game was carried on. The real objection to this part of the lower Court s decision is that the character of the game as one of skill or chance is not material under Act III of 1889, with which we are concerned.