EMPEROR Vs. ARJOON SINGH

JUDGEMENT

(1.) This is a referenca under Section 438, Criminal Procedure Code, by the Sessions Judge of Hughly recommending that the conviction of 15 persons, one Arjoon Singh and 14 others, under Section 4 of Act II (B.C.) of 1867 and the fine imposed thereunder may be set aside. The case has been argued before me in great detail on behalf of the petitioners as well as on behalf of the Crown.

(2.) The only question that arises for determination in this case is whether the game that was being played at the time when the petitioners were arrested was "gaming" within the meaning of the Act. The definition in the Act does not really define "gaming," but merely indicates what it is like and excludes wagering or betting on some particular occasion, and in particular circumstances, and also excludes a "lottery". In Hari Singh V/s. King Emperor 6 C.L.J. 708 : 6 Cr. L.J. 421, it was held that a game of skill is not an offence under the Act but a game of chance is and that if a game involves a certain amount of skill as well as a certain amount of chance, if the chief element of the game is skill it is not an offence. This decision, was passed in 1907. It was incidentally approved of in Bengali Shah V/s. Emperor 20 Ind. Cas. 612 : 40 C. 702 : 17 C.W.N. 883 : 14 Cr. L.J. 452. la Ram Newaz Lal V/s. Emperor 23 Ind. Cas. 484 : 15 Cr. L.J. 276 the learned Judges referring to Section 10 of the Act which said--"nothing in the foregoing provisions of this Act contained shall be held to apply to billiards, whist or any other game whenever played"--observed: "The criterion is not whether it is a game of mere chance, but whether it is a mere skill and we may point out that the word "mere" is used in legal language in its meaning derived from its Lai in origin and imports the meaning of "pure skill". There is a further point which we wish to set out and which was not apparently discussed in Hari Singh's case 6 C.L.J. 708 : 6 Cr. L.J. 421, and that is that the games of skill referred to in Section 10 obviously refer to a game where there are two parties pitting their skill against each other." The Allahabad High Court dealing with a case under Section 12 of Act III of 1867 in which Hari Singh's case 6 C.L.J. 708 : 6 Cr. L.J. 421 appears to have been cited that the words of the Bengal Act were materially different and held that under the other Act the conviction was all right as the game was not a game of mere skill. Bengal Act II of 1867, however, was amended by Bengal Act IV of 1913 by which amongst other alterations Section 10 was repealed and a new section numbered 11-A was introduced which is in these words: "Nothing in this Act shall apply to any game of mere skill wherever played." The result, therefore, is that we are left with the definition of "gaming" such as it is in Section 1 and the provision exempting games of mere skill as contained in Section 11-A. The questions as to whether a game is one of pure chance or one in which the element of skill preponderates-- considerations which were thought important under the Act as it stood before--are no longer pertinent. We have to see whether the game is covered by what is meant by "graming"; if it is, it is hit by the Act un-less it is a game of mere skill.

(3.) As regards the definition of "gaming" it has been already said that it is hardly a definition. Etymologically it is equivalent to playing a game. In the Imperial Dictionary gaming is defined as "to use cards or other instruments according to rules with a view to win money or other things waged upon the issue of the contest." In Murray's Dictionary it is defined as "the action of playing at games for stakes." In Wharton's Law Lexicon it is defined as "the act or practice of playing or following any game particularly those of chance." In Hari Singh V/s. Jadu Nandan Singh 31 C. 542 : 8 C.W.N. 458 : 1 Cr. L.J. 349, Stephen, J., incidentally laid stress on the accompaniment of stakes or betting as the distinguishing element of "gaming." In Ram Pratap Nemani V/s. Emperor 16 Ind. Cas. 171 : 39 C. 968 : 16 C.W.N. 858 : 16 C.L.J. 250 : 13 Cr. L.J. 603, where the meaning of "gaming," pure and simple, was in question, it was explained as meaning "playing at any game for money, which is staked on the result of the game, i.e., which is to be lost or won according to the success or failure of the person who has staked." In the case of In re Musa 36 Ind. Cas. 839 : 40 M. 556 : 31 M.L.J. 285 : (1916) 2 M.W.N. 196 : 4 L.W. 503 : 18 Cr. L.J. 7, Oldfield, J., said that "the existence of a stake, not the character of the game as one of skill or chance, is regarded as constituting distinction between playing a game and gaming"; and Sadasiva Ayyar, J., observed: "I do not think that the question of chance or skill enters into to the connotation of the verb." I entirely agree in this view. In my judgment, all that has to be seen in this case is whether the game that was going on was for money which was staked on the result of the game which was to be lost or won according to the success or failure of the person who has staked, provided, of court, that it was not a lottery.