Order This is a Criminal Revision preferred against the conviction and sentence of the learned District Magistrate of Tiruchirappalli in C.A.No. 311 of 1957, confirming the conviction and sentence of the learned Sub-Magistrate of Tiruchirappalli in C.C.No. 1587 of 1957. In this case seven people were put up, the seventh accused for running a common gaming house and the other six for gambling, under sections 8 and 9 of the Madras Gaming Act. section 8 penalises the person who opens, keeps or uses, or permits to be used any common gaming-house, or conducts or assists in conducting the business of any gaming-house or advances or furnishes money for gaming therein. section 9 penalises persons found gambling in a common gaming-house. In other words, the sections, seek to punish an offence which constitutes to be a nuisance. section 3 defines a common gaming-house as meaning any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person, owing, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever; and includes any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming. section 6 lays down that any cards, dice, gaming table or cloth, board or other instruments of gaming found in any place entered or searched under the provisions of the preceding section, or on any person found therein shall be evidence that such place is used as a common gaming house and that the persons found therein were there present for the purpose of gaming. It is not necessary, in order to convict any person of keeping a common gaming-house or of being concerned in the management of any common gaming-house, to prove that any person found playing at any game was playing for any money, wager, bet or stake. Videsection 7. It is not necessary, in order to convict any person of keeping a common gaming-house or of being concerned in the management of any common gaming-house, to prove that any person found playing at any game was playing for any money, wager, bet or stake. Videsection 7. Then comes the Proviso in section 11 that nothing in sections 5 to 10 of this Act shall be held to apply to games of mere skill wherever played; Thus a contract bridge which is a game of skill does not come within gaming whereas playing mangatha will. In section 11-A provision is made for payment of portions of fines to informants and Police Officers. These provisions with variations are to be found in the Central Act, The Public Gambling Act, III of 1867. But the Central Act is not applicable in Bombay, Madras, Bengal, Punjab, Madhya Bharat, U.P. and C.P., which have enacted their own Gambling Acts on the same lines. (For a comprehensive commentary of the Central Act see A.I.R. Manual, Civil and Criminal, Vol. 7, pages 6938 and foil, and of which very useful publication an upto-date edition is long overdue, and for a study of the local Acts see third edition of Sami & Aiyar's Law and Practice of Gambling in India.) Bearing these sections in mind, let us see whether under the facts of this case accused 1 to 7 could have been convicted under sections 8 and 9. I may point out here that the seventh accused, viz., the owner of the lodging house alone has preferred this revision. But, it is open to me if I find that the convictions and sentences of the other accused, who did not appeal and prefer this revision, are unsustainable and illegal to set aside those convictions and sentences also. Prasad Gareri v. Mt. Kesari1. It is well-settled law even in regard to appeals that when two or more persons have been convicted by the Sessions Judge and one of them has appealed, the High Court has power under section 439 to deal with the case of the accused persons not appealing against their conviction, while considering and trying the appeal preferred by the other accused;clause (5) of section 439 does not in any way affect the jurisdiction of the High Court to deal with the case of the non-appealing accused. The established facts are: on a search warrant, Exhibit P-1 obtained from the Deputy Superintendent of Police, the Circle Inspector of Police, on the night of 16th July, 1957, raided a lodging house by name Ramalinga Bhavan in Old Goods Shed Street, Tiruchirappalli Town. There he found accused 1 to 6 with others sitting on a bed-sheet in a circle with a light burning playing cards. The seventh accused was not participating in the cards play, but is said to have been found in the room. The Circle Inspector arrested the accused and seized the playing cards, moneys, etc. They were charge-sheeted, accused 7 for running a common gaming house, and, accused 1 to 6 for gambling. Accused 1 to 6 were fined each Rs. 20 and accused 7 was fined Rs. 40. The seventh accused appealed and his conviction and sentence were confirmed and he has preferred this revision petition. The learned advocate raised two points, viz., that these sections would constitute unreasonable restrictions on the liberty of a citizen as well as owner of a house whose place must be a castle according to English notions of jurisprudence and can be violated only for safeguarding public interest. Secondly, on the facts of this case the offence of running a common gaming-house has not been brought home to accused 7 and the offence of gambling has not been brought home to accused 1 to 6. I need not point out that both these are interdependent. In regard to the first point, why gambling by playing games of chance in a common house run among other things for promoting gambling is penalised notwithstanding its being an invasion of individual liberty, personal property, etc., will be evident from the following information which can be gathered from volume 6 of James Hastings’ Encyclopaedia of Religion and Ethics at page 164 and following: 9. Motives of gambling.- The demonic power of the passion seems due to three main causes: (a) the desire for gain, (b) the desire for excitement, (c) the instinct of combativeness. (a) The desire for gain: Human nature is impatient of the delays of regular work, It wants to acquire at one stroke, without trouble, and without the laborious accumulation of little by little. (b) The desire for excitement: Is in one sense a revolt against the narrowness, the limitations, the Ordinariness of existence. (a) The desire for gain: Human nature is impatient of the delays of regular work, It wants to acquire at one stroke, without trouble, and without the laborious accumulation of little by little. (b) The desire for excitement: Is in one sense a revolt against the narrowness, the limitations, the Ordinariness of existence. Man craves for intensified life; and gambling, with its risk its suspense, its thrill, its hope and its shock of surprise, supplies all the necessary catastrophic elements. Hence it is, on the one hand, the last resource of the blase who wishes to goad his jaded senses; and on the other hand, the outlet of the energetic and adventurous nature which finds ordinary peaceful existence too humdrum and lacking in sensation. (c) In betting a man backs his own powers, his judgment or his luck. In a game of Dure chance men pit themselves against each other, and if there is no deception, each has an equal chance. “If Hercules and Lichas play at dice Which is the better man, the greater throw May turn by fortune from the weaker hand; So is Alicides beaten by his page”. (Shakespeare, Merchant of Venice, II I.32). Even when all seems lost, a sudden overmastering victory is still possible. Success lends a sort of supernatural glory to the winner, who is regarded as a ‘favourite of fortune ‘: defeat does not wound the self-respect of the loser. (P. 164). 10. Ethical bearings of gambling: That the results of immoderate gambling are deplorable no one will dispute. But, apart from the effects, it remains to inquire into the morality of the act in itself when kept within bounds. U sum non tollit abusus. The economic aspect needs no discussion Gamblers add nothing to the wealth of the community. They may claim that gambling Provides a form of recreation and pleasure which is not only legitimate but helpful, so long as the sums staked are such as a man can afford to lose. But (a) such a contention draws a line of distinction between rich and poor; what is right for the rich man is pronounced wrong in the case of the poor man. But (a) such a contention draws a line of distinction between rich and poor; what is right for the rich man is pronounced wrong in the case of the poor man. (b) The argument implies that the wrongness of gambling consists in losing the money staked; it is right, if one wins, because one can afford to win; but it is wrong, if one loses, because one cannot afford to lose. Any argument based on prudential grounds is only an appeal to enlightened self-interest, and the spirit of selfishness cannot cast out selfishness. ( c) Though it is in society that the temptation comes, gambling itself is anti-social . It is, as Herbert Spencer says, a kind of action by which pleasure is obtained at the cost of pain to another. The happiness of the winner implies the misery of the loser. This kind of action, therefore, is essentially anti-social; it sears the sympathies cultivates a hard egoism, and so produces a general deterioration of character. It is a habit intrinsically savage (see his Ernics, iii ch. 7 ‘Amusements’ 227; Facts and comments “Essay on Rebarbarisation”). In an atmosphere of brother-hood no form of gambling could exist. In some cases success appears to depend on superiority of judgment; but this is fallacious. It is never possible to be certain of a result, because all the factors which go to produce that result are not known. When the odds are 4 to 1 on a horse winning a particular race, and these odds are supposed to be ‘fair’ the man who accepts the adverse odds does so because he relies upon the unknown factors of the problem; in fact, his appeal is to the unknown and incalculable elements in human affairs which men call chance. The appeal to chance implies a negation of all the nobler powers of man-reason skill the sense of justice and responsibility. In the habitual gambler, these higher faculties, through disuse’ becomes atrophied, and his life, out of touch with honest labour, intoxicated by the excitation of his favourite passion, becomes the sotted and depraved. But the immorality of gambling may be argued on higher grounds than a calculation of pleasure (a) Every gambling transaction involves a transfer of property in one shape or another. But the immorality of gambling may be argued on higher grounds than a calculation of pleasure (a) Every gambling transaction involves a transfer of property in one shape or another. When the gambler is asked why he stakes his money on a game or a race, his reply is, ‘To add an interest to the game’. The interest thus added is, simply stated, the interest of acquisition. If the real object were as is claimed, merely the sport and the excitement, then men might just as well wager counters or’ for the matter of that, agree to hand over all winning to public charities. But this is not done. The transfer of property, in one shape or another, is essential to the act. There are only three ways in which property can be legitimately acquired-by gift, by labour and by exchange. Gambling stands outside all of these. (A) Its motive is, however, carefully disguised, covetousness. It is an Attempt to get property without paying the price for it. It is a violation of the law of equivalents. It is a kind of robbery by mutual agreement; but it is still robbery, just as duelling, which is murder by mutual agreement, is still treated as murder. It is begotten of convetousness; it leads to idleness (c) It is, moreover, an appeal to chance. If in any contest skill comes in, odds are given or handicaps arranged so as to equilize the chances as far as possible. To make chance the arbiter of conduct is to subvert the moral order and stability of life, (d) It concentrates attention upon lucre and thereby withdraws attention from worthier objects of life. Captious analogies have been drawn between gambling in sport and commercial speculation There is, it is true, a kind of speculation which is merely betting on prices. Men buy or sell cotton or corn for future delivery, without ever intending to handle or distribute the actual commdities but merely with a view to closing the contract before it is due, and profiting by the fluctuation of prices A man may buy and sell stocks and shares in the same way. But there is also a commercial speculation which is necessary and legitimate. The merchant has to make provision for asocial need and in buying ahead, chance must inevitably enter into the calculation. But there is also a commercial speculation which is necessary and legitimate. The merchant has to make provision for asocial need and in buying ahead, chance must inevitably enter into the calculation. The gambler's business is wholly self-centered; he sub-serves no need of the community. The merchant's whole policy is to eliminate risk as far as possible. (P. 166 and foll:). These considerations explain why the Madras Gaming Act has been enacted But, at the same time, the authors of the Act knew full well the dangers inherent in attempting to legislate away, a deep-rooted human instinct and, which in its very wake would bring oppressive bureaucratic interference causing undeserved misery and abuses. Therefore, the promoters have not penalised, for instance, all playing of cards. It is a pastime indulged in by the most respectable, and, indulged equally in the privacy of their houses and clubs, boarding houses etc. Therefore, first of all, from the purview of the Madras Gaming Act all games of skill like Bridge are excluded, under section 11. In regard to what constitutes a game of skill or a game of chance will depend upon the circumstances of each case. No game can be a game of skill alone, and, in any game where even greater skill is required chance must play a certain part. Even a skilled player in a game of mere skill may be lucky or unlucky so that even in a game of skill chance must play its part. But, it is not necessary to decide in terms of mathematical precision the relative proportion of chance to skill in deciding whether a game is game of mere skill. The word “mere” stands for “purely”. The phrase means there a game of pure skill. Thus in games in which chance is all in all and there is no element of skill or, in cases where chance plays no part or only a very negligible part, the matter will be free from difficulty. The difficulty arises only when in a game both the elements of chance as well as skill co-exists. Thus in games in which chance is all in all and there is no element of skill or, in cases where chance plays no part or only a very negligible part, the matter will be free from difficulty. The difficulty arises only when in a game both the elements of chance as well as skill co-exists. In such cases, it has to be determined whether the predominant or governing element is one of skill or chance, and, in doing so, all circumstances will be taken into consideration, and, each case will have to be reasonably decided on its merits; Damrimian v. Emperor1, Ahmad Khan v. Emperor2, Ram Nardas Lal v. Emperor3, Hari Singh v. Emperor4, Bangoli Shah v. Emperor5, Aziz Ismail v. Emperor6, Emperor v. Arjun Singh7, Emperor v. Musa8 Emperor v. Kallappa9, Saligram Khetry v. Emperor10, Mahomed Hassan v. Emperor11,12 ,Sikander Khan v. Emperor13. Therefore, before the accused can be convicted, it must be established that he was playing a game of mere chance. It is unnecessary as laid down in section 7 of the Madras Gaming Act to prove that any game was played for stakes. The game by chance becomes punishable only if it is played in any common gaming-house under section 9 , or, in a public place under section 12. It is not punishable if it is played elsewhere and not coming within either of these two sections. The term ‘public place’ has nowhere been defined, and, in order to constitute a public place under section 12 it is not necessary that the place should be public property. If it is private property it must be proved that the public could have access to it and to which place, the members of the public resort. Thus, a public place is one where the public go, no matter whether they have a right to go or not. It is obvious what is a public place may vary from time to time, and, what the Court has to consider is, was a particular place at the time public-a place where the public undoubtedly were There is a whole catena of decisions defining what is a public place and what is not a public place. The following cases define the concept public place; Gajju v. Emperor14-15, Nura v. Emperor16, Muhammad Khan v. Emperor, 17 Hari Singh. The following cases define the concept public place; Gajju v. Emperor14-15, Nura v. Emperor16, Muhammad Khan v. Emperor, 17 Hari Singh. v. Jadundan18, Lala v. Emperor19, Balm Ram v. Emperor20, Emperor v. Suknadan Singh21, Sabimiya v. Emperor22, Q.E. v. Srilal23, Munshi v. The State24, Mohan Lal v. Hyderabad State25, Chuttan v. The State26, Karate27 In re28, Unnamuhammad Saheb, In re29, Ragunandan v. Emperor30. In other words, playing a game of chance and keeping a common gaming-house are punishable because that would perpetuate institutions for public demoralization And, games of chance played in public places are punishable because they constitute a public nuisance and the sight of which is demoralising to the people of the locality. This is the substance of the law and practice of gaming in India embodied in the Central and Local Acts, [(see Ram Lal Anand The Public Gambling Act, with local amendments and enctments (Eastern Law House Calcutta)(1935). Then comes the special element required in the case of the patron of the common gaming house; that person (natural and artificial like a corporation) can be convicted only if it can be proved, as has been explained in two decisions of mine reported in Parthasarathy, In re1 and Raghavalu, In re2, that there was sufficient record to make out an element of profit or gain to the person owning or occupying, or using or keeping the premises. The mere fact that occasionally cards are played there in a house, and perhaps for money, does not necessarily make it a common gaming-house. In re: Satyanarayana3, Kulandavelu Chettiar4, In re, Public Prosecution. v. Subramania Sastri5, Periya Elumalai Chetti, In re6, Somasundaram Chettiar, In re7. That evidence can be adduced in three ways. First of all, the evidence of the people living either in portions of the same house, or the same place, or neighbours will be very acceptable evidence. Secondly, observations must be kept by officers for a fairly extended period of the incoming and outgoing people. In the case of common gaming-houses located in a hotel, the people coming in and going out will be out of proportion, to the guests, permanent or temporary, or persons in the guise of guests will be flitting in and out at short periods which will not be the case with genuine boarders. Thirdly, decoy or trap witnesses may be employed. Thirdly, decoy or trap witnesses may be employed. But, great care should be taken to employ more than one trap witness so that the chances of unreliability may be ruled out. It is quite true that the evidence of trap witnesses, does not require corroboration like that of accomplice. But, as has been repeatedly pointed “out in various decisions, the evidence of a trap witness being that of a police informant, must be scrutinised with very great care. In addition, other circumstances must be taken into consideration like the standing of the owner of the hotel, his financial resources and the class of clientele with whom he deals, and, other factors. In other words, the evidence must lead to a fair and legitimate inference that the person prosecuted has for the element of profit been running a common gaming house. The practice of prosecuting these gambling cases on the testimony of a single decoy witness, in regard to what happened on a solitary occasion in order to furnish statistical figures in the annual reports that the Madras Gaming Act has been worked and not neglected in any area, with such prosecutions in a spate too on the eve of figures to be furnished for compilation in the annual police administration reports, is to be greatly deprecated. These observations incidentally apply mutatis mutandis to the working of the Suppression of Immoral Traffic Act. A final point remaining for determination is the scope and weight of the presumption under section 6. In Kota Dhanarao and others8, Somasundaram, J., has pointed out thus: “When the section says “any cards etc., shall be evidence” the question is whether that evidence by itself is sufficient or whether any additional piece of evidence is necessary for the purpose of conviction. As pointed out by Horwill, J., in Kulandaivelu Chettiar, In re4, though there is nothing in the Act which prevents a Magistrate from convicting upon that evidence alone, still in almost every case there is some other evidence also. As pointed out by Horwill, J., in Kulandaivelu Chettiar, In re4, though there is nothing in the Act which prevents a Magistrate from convicting upon that evidence alone, still in almost every case there is some other evidence also. In short, though the section does not in terms prohibit the conviction merely on the presumption, raised under section 6, still invariably it has been the practice prevailing in this Court not to convict on mere evidence alone unless there is something more in addition to the presumption raised under that section.” In Raghavalu, In re2, I have pointed out that this is only a piece of evidence in support of the prosecution for an offence under section 9, and, it is wrong to treat it as conclusive evidence warranting a finding of guilty of a person found therein without anything more. The words “shall be evidence” in section 6 shows that among other thing it shall be taken into consideration as evidence. In fact, section 6 lays down that it shall be evidence until the contrary is made to appear. The omission of these words in the Madras Gaming Act seems to be inadvertent. The Madras Gaming Act also gives lead only to the presumption that although no play was actually seen by the Magistrate, or any Police Officer or any of the residents, under section 6 the presence itself will be tantamount to evidence that they were there for the purpose of gambling. This presumption is necessary because gamblers will naturally hide everything when the police raiding party goes there. Therefore it has been made immaterial whether gambling was or was not actually going on at the time the house was entered or searched. The Court may presume that the officer issuing the warrant has got credible information and that it would tally with the presumption arising under section 6 if as a result of the search the articles indicated in section 6 are found. See also Narayana v. The State1. This is rebuttable presumption also. For instance it may be shown by the persons accused that they were there for playing a game of skill. Besides under the ordinary rule of law and the universally accepted criminal jurisprudence, the presumption is that the accused person is innocent unless the contrary is proved; that being so it is but proper that this section should be very strictly construed. Besides under the ordinary rule of law and the universally accepted criminal jurisprudence, the presumption is that the accused person is innocent unless the contrary is proved; that being so it is but proper that this section should be very strictly construed. Bearing these principles in mind, if we examine the facts of this case, we find that the conviction and sentence cannot be supported in the case of the accused. There is no evidence whatsoever that the seventh accused was running a common gaming house, and, there is no evidence whatsoever that the other accused were not playing a game of skill. The convictions and sentences of all the accused are set aside, and the fine amounts, if collected, will be refunded. The confiscated amount will be refunded to the acquitted accused on a joint application. V.S.-----Convictions and sentences set aside.