EMPEROR Vs. VITHALDAS HIRJI

JUDGEMENT

(1.) The facts established by the evidence in this case show that the accused were gambling within the second enclosure of the Bombay Race Course during the races on the 1st January 1917. Their kind of gambling was this: they set up an opposition to the totalizator, received money from persons, who bet on the horses running and promised to pay on the winner at the same rate as the totalizator. They were charged before the Bench of Honorary Presidency Magistrates at the Mazagaon Court under Section 12 of the Bombay Gambling Act (Bombay Act IV of 1887) and were acquitted. The Govern-ment of Bombay have appealed against this acquittal and we have to determine whether on the facts found the acquittal is right or wrong. I think it is right and for reasons which I will briefly state.

(2.) The material part of Section 12 runs as follows- 12. A Police-officer may apprehend without warrant:- (a) 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....

(3.) Now this is to my mind quite plainly in substance an enact-ment against playing certain kinds of games for money in certain public or quasi-public places. It is not an enactment against gambling pure and simple in such places. If it were, it would, I think, have been differently worded. On the facts established, the accused were, no doubt, gambling; they were certainly doing something for money; but they were not playing a game for money or playing with instruments used in playing a game. Betting on a horse race is not playing a game or playing with, such instruments at least as I understand the English language.