JUDGMENT 1. 1. This petition under section 482 Cr.P.C. has been filed by the petitioners for t quashing the order of taking cognizance against the petitioners under section 3/4 of the Rajasthan Public Gambling Ordinance, 1949 (in short "the Ordinance" hereinafter) on a complaint filed by S.H.O. Police Station, Sadar Bazar, Jodhpur. 2. The facts in brief are that the petitioners are employed in Richirich Video Parlour situated at shop no. 123 Nal Sadak, Jodhpur owned and operated by one Shri Umesh Vyas, who is the proprietor of the said Video Parlour. The owner of the said Video Parlour is carrying on the business of Video Games for providing entertainment to the persons who are desirous to play the game. It has further averred in the petition that games mentioned in para no. 3 are the games exhibited on the electronic video games machine and the games are open for the general public at large for the purpose of amusement and entertainment of the persons whosoever is desirous to visit and play the same. The person desirous to play any of the video game of his is choice is required to pay a sum of Rs. 1/- only and against Rs. 1/- the player is provided a token made of metal. On one side of the token it is embossed that "only for amusement" and on the other side it is mentioned "no cash value", meaning thereby that the player is required to put that token in the whole present in the video game machine and it is only then by pushing the on button he video game machine is operated and player with a certain amount of skill, knowledge and experience earns the points depending upon his ability and capability to play the game. The game is of mere skill and is nothing but source of entertainment and amusement for the general public. The S.H.O. Police Station, Sadar Bazar, Jodhpur committed a raid on the said Video Parlour and about 26 persons, who were busy in playing the video games were arrested and also seized the video games machines, which were being operated by the players. Amongst 26 persons, three of them were the present petitioners, who are the employees Of the said video parlour. Tulsi Ram is the Manager of the said video parlour and other two are care taker and helpers. Amongst 26 persons, three of them were the present petitioners, who are the employees Of the said video parlour. Tulsi Ram is the Manager of the said video parlour and other two are care taker and helpers. The learned Magistrate took cognzance against all the accused-persons on the same day 23 accused person were convicted and sentenced to fine on pleading guilty, but the present petitioners did not plead guilty and they were enlarged on ball. Against the order of cognizance as stated earlier, the present petition has been filed.It was argued by the learned counsel for the petitioner that the said electronic video games exhibited/operated in the said Video Parlour are the game of mere skill only and there is no element of chance involved in it. Therefore, no offence was committed at the face of the complaint. It was further argued that Gaming includes wagering or betting but does not include a lottery as per Section 2(2) of the Ordinance. As per explanation in order to invoke any or the Sections disclosing offence under 'the Ordinance, the elements of wagering, betting must necessarily exist. Meaning thereby, the element of chance is the condition precedent and for this the authority acting in furtherance of the said Ordinance of 1949 is required to apply its proper mind and must have a sound reason to believe that the activities taking place necessarily involved in it the element of pure chance. Therefore, no offence has been committed by the 20 petitioners. 3. The learned counsel for the petitioner has placed reliance on the following decisions:- (1) Harilal Gordhan v. Emperor, (AIR 1937 Bombay 385) (2) Dr. K.R. Lakshmanan v. State of Tamilnadu & Anr., (AIR 1996 SO 1153) (3) Standard Games v. State of U.P. & Ors., ( AIR 1997 SC 285 ) (4) State of M.R & Ors. v. Smt. Abha Sethi, ( AIR 1999 SC 2271 ) (5) Babu Bhai & Ors. v. State of Raj. & Ors., (S.B. Cr.Misc.Pet.No. 508/97 decided on 9.11.1997) On the other hand, the learned Public Prosecutor supported the order of the learned Magistrate and argued that the petitioner at this stage is 35 not maintainable and liable to be dismissed. 4. In Osbron's Concise Law Dictionary, 8th Edition, ''Gaming" has been defined at page 155 as follows:' "gaming. & Ors., (S.B. Cr.Misc.Pet.No. 508/97 decided on 9.11.1997) On the other hand, the learned Public Prosecutor supported the order of the learned Magistrate and argued that the petitioner at this stage is 35 not maintainable and liable to be dismissed. 4. In Osbron's Concise Law Dictionary, 8th Edition, ''Gaming" has been defined at page 155 as follows:' "gaming. Under the Betting, Gaming and Lotteries Act, 1953 and the Gaming Act 1968 gaming means the playing of a game of chance for 40 winnings in money or money's worth, and a game of chance includes a game of chance and skill combines, but does not include any athletic game or sport." 5. Section 2(2) of the Ordinance defines "gaming" as follows:- "In this ordinance, unless there is anything repugnant in the subject or context, - (1) xxxxx (2) "gaming" includes wagering or betting but does not include a lottery; Explanation.-Any transaction by which a person in any capacity so whatever employs another in any capacity whatever or engages for another in any capacity whatever to wager or bet with another person shall be deemed to be "gaming". 6. Section 3 prescribes penalty for owning or keeping or having change of a gaming house. Section 4 prescribed penalty for being in gaming house.Section 12 of the Ordinance is as fallow:- "12. Ordinance not to apply to certain games, - Nothing in this Ordinance shall be, held to apply to any game of mere skill, as distinguished from a game of chance or a game of chance and skill combined, unless it is carried on in a common gaming house." 7. It has been held in State of A.P. v. K. Satyanaranaya, AIR 1968 SC 825 as under:- "We are also not satisfied that the protection of Section 14 is not available in this case. The game of Rummy is not a game entirely of chance like the three card game mentioned in the Madras case to which we were referred. The three card' game which goes under different names such as flush', brag' etc. is a game of pure 15 chance. The game of Rummy is not a game entirely of chance like the three card game mentioned in the Madras case to which we were referred. The three card' game which goes under different names such as flush', brag' etc. is a game of pure 15 chance. Rummy on the other hand, requires certain amount of skill because the fail of the cards has to be memorised and the bundles up of Rummy requires considerable skill in holding and discarding cards, we cannot, therefore, say that the game of Rummy is a game of entire chance, it is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge, in fact of ail games in which cards are Shuffled and dealt out there is an element of chance because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled 25 pack. From this alone it cannot be said that Rummy is a game of chance and there is no skill involved in it. Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of Rummy or any other game played for stakes, the offence my be 30 brought home." 8. In M/s Geeta Enterprises v. State of U.R & Ors., AIR 1983 SC 1098 , it was observed:- "The word entertainment' has been used in section 2(3) in a very wide sense so as to include within its ambit, entertainment of any kind 35 including one which may be purely educative. Sub-section (3) itself by using the word entertainment' as any exhibitional, performance, amusement, game or sport to which persons are admitted for payment" has extended the scope of entertainment to expressly include any kind of amusement, game or sport. By 40 operating the video, the operator of the video pays 50 paise per 30 seconds for playing the games, sports and other kind of performance which are shown on the machine and which can be watched by interested spectators. By 40 operating the video, the operator of the video pays 50 paise per 30 seconds for playing the games, sports and other kind of performance which are shown on the machine and which can be watched by interested spectators. The circumstance that no admission fee is charged from viewers of video by itself, however, 45 cannot defuse or alter the kind of entertainment derived by the person who pays for playing the games. The fact that for playing the video games a great amount of skill is required is not material because he would derive pleasure and be entertained regardless of whether he possesses skill or not. if he possesses skill he may 50 derive more pleasure on less payment otherwise he will have the same. Besides, the game brings a substantial return for the person who makes available these facilities. Hence such an exhibition falls within the purview of the word entertainment as envisaged in sub-section (3). The money charged for use of the video machine is an admission to entertainment and the payment made by the person who connected with entertainment which a person is required to make as a condition of attending the entertainment. Hence as video show is clearly exigible to tax under Section 3 of the Act." 9. I have been held in Dr. K.R. Lakshmanan v. State of Tamil Nadu report in AIR 1996 SCP 1153 as follows:- "The horse-racing is a sport which primarily depends on the special ability acquired by training. It is the speed and stamina of the horse acquired by training, which matters. Jockeys are experts in the art of riding. Between two equally fast horses, a better trained jockey can touch the winning post. Thus the horse-racing is a game where the Winning depends substantially and preponderantly on skill." 10. it was further held in the above decision as under:- "We may now take-up the second question for consideration. Section' 49 of the Police Act and Section 11 of the Gaming Act specifically 20 provide that the penal provisions of the two Acts shall not apply to the games of "mere skill wherever piayed". The expression "game of mere skill" has been interpreted by this Court to mean "mainly and preponderantly a game of skill." 11. Section' 49 of the Police Act and Section 11 of the Gaming Act specifically 20 provide that the penal provisions of the two Acts shall not apply to the games of "mere skill wherever piayed". The expression "game of mere skill" has been interpreted by this Court to mean "mainly and preponderantly a game of skill." 11. in the above case, the case of State of Andhra Pradesh v. 25 K. Satyanarayana reported in (1968) 2 SCR 387 was followed. 12. The case of Harless v. United States, (1843) Morris (Iowa) 169 was also relied by the Hon'ble Apex Court in the above case and in that case, it was held as under:-............................................................................... "The word game' does not embrace all uncertain events, nor does the so expression games of chance' embrace ail games, As generally understood, games are of two Mods, games of chance and games of skill., Besides, there are trials of strength, trials of speed, and various other uncertainties which are perhaps no games at all, certainly they are not games of chance. Among this class may be ranked a horse 35 race. It is as much a game for two persons to strive which can raise the heaviest weight, or live the longest under water, as it is to test the speed of two horses. It is said that a horse race is not only uncertain in its result, but is often dependent upon accident. So is almost every transaction of human life,! but this does not render them games of 40 chance. There is a wide difference between chance and accident. The. one is the intervention of some unlooked-for circumstance to prevent an expected result, the other is uncalculated effect of mere luck The shot discharge at random strikes its object by chance: that which is turned aside from its well directed aim by same unforeseen 45 circumstance misses its mark be accident. 13. It was held in Standard Games v. State of U.R & Ors. 13. It was held in Standard Games v. State of U.R & Ors. reported in AIR 1997 Sc p.285 relying the decision of Geeta Enterprises v. State of U.R., (1983) 3 SCR 812 that charge of inserting the coin was realised only from those who wanted to operate the video game at the rate of 50 paise for a slot lasting upto 30 seconds and it amounts to entertainment within the meaning of Section 2(g) of the 'Act Therefore, vicfeo games is exigible to entertain tax. 14. It is also relevant to mention here that the case of Geeta Enterprises (supra) was followed by the Hon'ble Apex Court in Standard Games v. State of U.P. (supra). 15. It has been held in Babu Bhai and Ors. v. State of Rajasthan and Ors. (S.B. Cri. Misc. Petition No. 508/97) that arrow dart game does not amount to gaming and it was held that it is a game of skill and not a game of chance, which is saved by Section 12 of the Ordinance. Relying on the decision given in Saligram v. Emperor, AIR 1993 Calcutta 8 , learned Judge accepted the petition and quashed the FIR. 16. In view of the above judgments, the Court is of the considered opinion that the said video game is a game of mere skill as distinguished from game of chance or game of chance and ski combined. In the said video games, there ate computerised chips which is the sole source of the such video games and on pressing the relevant button, the computerised chip so attached in the respective video game machine is activated and the game starts and the player 15 by his sufficient knowledge and experience and by practice can control the game on his own and there is no interference outwardly whatsoever. The video games located in the said video parlour is nothing but for the entertainment, and therefore, saved by Section 12 of the Ordinance. 17. It cannot be called a pure game of chance, but it is a game of skill. In the games, there can be no doubt that the likeliood of success is within the control of any particular player, provided he possess the skill. 17. It cannot be called a pure game of chance, but it is a game of skill. In the games, there can be no doubt that the likeliood of success is within the control of any particular player, provided he possess the skill. No doubt, success would demand a high degree of skill or at any rate what is generally described as knack which is only another way of saying that the person playing must have an aptitude and must have a certain amount of experience and expertness in the play of the particular game. By pushing the button, the game starts on the monitor, in all these video parlours, on the token one side of the said token it is embossed that "only for amusement' and on the other side of the token it is menttenc J &at "no cash value". After pushing the button only, the video machine is operated and player with a certain amount of skill, knowledge and experience earns the points depending upon his ability and capability to play the game. If he earns 10 pints, then he in turn will get 10 more such tokens to play the game. Thus he can repeatedly play the game for 10 times by way of earning 10 points on account of paying Rs. 1/- only for the said token. Therefore, the said games being the game of mere skill are nothing but 35 source of entertainment and amusement for the general public. 18. Now, the question comes for determination whether the proceeding before the Magistrate be quashed or not? 19. It has been held in Ashok Chaturvedi & Ors. v. Shitul H. Chanchani & Anr. reported in AIR 1998 S.C. p. 2796 as under:- "Bald allegation in complaint that shares of complainant have been transferred on forged signatures-No iota of material to indicate how all or any of the accused were involved in alleged forgery-Statement of complainant as well as witness not lending any support-Said allegations as well as statements not making out 45 offences under Sections 406,420, 467, 468 and 120-B-Order taking cognizance thus not proper-Quashed in respect of accused persons who preferred special leave as well those who did not prefer such special leave petition." 20. The allegations in the complaint taken at their face value do not so disclose any ingredient of offence and keeping in view the judgment of Hon'bie Apex Court. 21. The allegations in the complaint taken at their face value do not so disclose any ingredient of offence and keeping in view the judgment of Hon'bie Apex Court. 21. Therefore, for the reasons stated above this miscellaneous petition is allowed. the complaint pending against the petitioner in the trial Court is hereby quashed. It is further ordered that the case and other implements of the game, which were seized by the Police may be returned to the petitioner.Petition allowed - Complainant quashed. *******