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Emperor v/s s Kallappa Gurappa Kotagunshi

    Decided On, 12 June 1939
    At, High Court of Judicature at Bombay
    For the Appearing Parties: ----------------

Judgment Text
1. The accused in this case were charged with offences under Sections 4 and 5 of the Bombay Prevention of Gambling Act, 1887, and were convicted and ordered to pay fines of varying amount. On appeal, the Sessions Judge of Dharwar set aside the convictions and acquitted the accused. The Government of Bombay has now appealed against the order of acquittal.

2. The facts need only be mentioned very briefly. The Police Sub-Inspector of Hubli, having received information that accused No.1 was using his house at Hubli as a common gaming house, obtained a special warrant from the Magistrate and searched the house on February 9, 1938. At the time of the raid seven persons were found sitting in the room and playing a game of cards called pettin-ata for money stakes. One of the seven persons absconded, and of the six who were charged in the case, one, accused No.2, was examined as a witness. The Magistrate acquitted accused No.6, and convicted Nos. 1, 3, 4 and 5.

3. The only point that was argued in the appeal before the Sessions Judge was whether this game pettin-ata is a gambling game or not. The game has been thus described by accused No.2 who, as I say, was examined as a witness in the case, and who gave a demonstration of the game before the Magistrate and the Sessions Judge. The game is played by four or six persons, each player being dealt eight cards. After the cards are dealt the players make a call in turn contracting to make so many tricks. The maker of the highest call declares the trump suit. Each of the players contributes a certain stake, usually one anna, to the pool. If the player who makes the highest call makes the number of tricks he contracts to make, he takes the amount of the pool; but if he fails he has to contribute an equal amount to the pool. So that after the hand is played, if the highest bidder is unsuccessful, the pool is doubled. The game consists of three deals. If in the third hand the highest bidder is successful he takes the whole of the pool; if he fails the pool is divided equally among all the players including the unsuccessful final bidder.

4. The view taken by the learned Sessions Judge is that it cannot be regarded as a game of mere chance, and that there is an element of skill in it. That is perfectly true, but, unfortunately, it is not the point which arises on the construction of the Act. Section 13, which is the important section, says that nothing in this Act shall be held to apply to any game of mere skill wherever played. "mere skill" means pure skill, skill and nothing else. It is sufficiently obvious, we think, without reference to any authorities, that a game in which there is a substantial element of chance cannot be described as a game of mere skill or pure skill. The game, which has been described in this case, is similar to the well-known game of Nap. It is a rather elaborate form of Nap, having some similarity, no doubt, to contract bridge. I should say myself that there is far more chance than skill in the game. But, in any case, it cannot possibly be denied that there is a very substantial element of chance in it. That being so, it is not a game of mere skill, and comes within the mischief of the Bombay Prevention of Gambling Act.

5. The learned Sessions Judge appears to have relied on some observations of the learned Judicial Commissioner of Sind in Mahomed Hassan. Emperor [1937] A. I. R. Sind. 99. The Court was there dealing with a game called Corinthian bagatelle, not a card game, and the observation of the learned Judicial Commissioner, on which the Sessions Judge relied, was as follows (p. 99): no game can be a game of skill alone, that in any game in which even great skill is required, chance must play a certain part, and we think there is force in this argument. Even a skilled player in a game of mere skill may be lucky or unlucky, so that we think that even in a game of mere skill chance must play its part. But we do not think that it is necessary to decide in terms of mathematical precision the relative proportion of chance to skill when deciding whether a game is a game of mere skill within the provisions of Section 13.We are satisfied in this particular case that it cannot be said that the game before us is a game of mere skill, because it is quite clear to us that the elements of chance most strongly preponderate. We think, therefore, on the point that the game is a game of mere skill.

6. It is not very clear, I think, that the learned Judge meant to lay down the proposition that the question whether a game is a gambling game or not depends on whether chance or skill preponderates in it. But, if that is the meaning of the observations cited, we can only say respectfully, but emphatically, that we do not agree.

7. It has been pointed out in Emperor v. Arjun Singh (1929) I. L. R. 57 Cal. 520 and King-Emperor v. Musa (1916) I. L. R. 40 Mad. 556 that, under the provisions of the gambling law as they formerly stood before amendment, the question whether skill or chance predominates in a game was of importance. As the Act now stands, and in particular in view of the provisions of Section 13, it is clear that if a game is played for stakes, it amounts to gaming and comes within the mischief of the Act, quite irrespective of the question whether chance or skill predominates, provided of course that it is not a game of mere skill, that is to say, a game; in which there is no element of chance at all. Of course, if the element of chance in a game is so small as to be negligible, it may be reasonable to ignore; it. But that is not the case with the game with which we are concerned here.

8. The learned Sessions Judge has observed, in the course of his judgment, that the game is just like auction or contract bridge played in respectable clubs. He has, however, omitted to observe two very important distinctions. The first is, that in the case of a club it is not usual for a charge to be made for the profit and benefit of the owner or occupier of the premises. In the present case it is proved that all those participating in the game pay four annas for the benefit of accused No.1, the owner of the premises. The other point is that in the case of a club the place is not open to any member of the public, but only to members of the club and perhaps their guests. The facts here clearly bring the case within the definition of a common gaming house in Section 4.

9. Mr. Desai, who appears for the accused, took exception to the Magistrate's order for confiscation of a sum of Rs. 48 which appears to have bee

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n found lying on the carpet round which the accused were sitting. He says that the prosecution have not shown the connection between this money and the gambling. The point does not appear to have been taken before the Sessions Judge, and in any case, we think, there is no substance in it. As the accused were playing cards for money, and this money was lying on the carpet on which they were playing, the connection between the money and the gambling is sufficiently obvious. We think the convictions of the accused were right, and the Sessions Judge was not justified in interfering. 10. We, therefore, set aside the order of acquittal passed by the Sessions Judge, and restore the convictions and sentences of all the accused.