JUDGMENT
Scott, J.
1. This is an appeal by the Government of Bombay against an order of acquittal, on the 4th October last, by the late Chief Presidency Magistrate, who delivered an able and elaborate judgment. The facts are admitted. The accused were charged, under the Bombay Prevention of Gambling Act IV of 1887, with keeping a certain shed for the purpose of a “common gaming-house within the meaning of the Act. The statutory definition of a common gaming-house is” a house, room, or place in which cards, dice, tables, or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using, or keeping such place.” The instruments here kept or used are two–one, a rain-gauge; the other, a gutter. They are constructed and used exclusively as a means of ascertaining the rainfall in the monsoon. On that rainfall, thus ascertained, great numbers of people are in the habit of making bets, which are registered by the accused, who, after deducting a commission on each bet, pay over the money to the winner. The place is, beyond doubt, a common betting place, and the instruments are instruments of betting. But betting is not illegal in India, and to come within the present law the place must be a common gaming place. In what, then, does gaming consist, as distinguished from betting? Gaming or gambling (which is only a frequentative of gaming) is defined by Wharton in his Law Lexicon as “the art or practice of playing and following up any game, particularly those of enhance.” A game is defined by Johnson as “sport of any kind–a single match at play–a solemn contest; and by the Imperial Dictionary “to game” is defined–“to use cards, dice, billiards, or other instruments, according to certain rules, with a view to win money or other thing waged upon the issue of the contest” Thus both lexicographers make a contest an essential element, and an active participation of certain persons is also necessary. In the present case neither element is to be found. The operation of nature, the falling of rain, is brought within easy observation by the gauge or the gutter, in order to wager on its uncertainty. But there is no contest, no players, and no participation by the bettors, save as on-lookers. The keeper of the place only registers the rainfall, the bettors only watch. Nobody takes an active part in the operation, and no active part could be taken in it. The case of Tollett v. Thomas L.R. 6 Q.B. 514 at p. 518 was cited as a precedent in favour of the Government. That turned on the Statute 31 and 32 Vic, cap. 52, which enacts that every person playing or betting in a public place, at any game or pretended game of chance, at or with any table or instrument of gaming, or other article used as an instrument or means of such wagering on gaming, may be punished. The terms here are much wider than those used in the Bombay Act, and wagering on games of chance as well as gaming are expressly dealt with. A machine used at a race-course by which persons induced to use it won or lost their money according as the ticket they drew had on it the number appropriated to the winning horse or not, was held to be an instrument of wagering or gaming at a game of chance, within the meaning of the Act. It was so held, because, in the first place, “it was an instrument of wagering” and in the second place, because the betting was on the event of a horse-race, which is a game–see Thorpe v. Coleman 1 C.B. 990–to which an additional element of chance was introduced by the instrument, so as either to convert the horse race into a game of chance, or to make out of the operation of the machine and the racing combined a separate game of chance. This case does not appear to me to be on all fours with the present one. In rain-betting there is no game at all; there is only an instrument of betting; and the case in the Queen’s Bench turned on there being a game as well as an instrument of betting. It was argued that the fact of the instrument having been specially designed for the purpose of the betting introduced an element of gaming. To admit the argument would be to widen unjustifiably the meaning of the word “gaming” as already defined. There must be a game, and there was none. Roulette was cited as a parallel, but the keeper of the roulette table and the player both take part, and, moreover, roulette has been judicially described as a game, and is included is the list of unlawful game in Gaming Acts: see Jenks v. Turpin L.R. 13 Q.B.D. 505 at p. 524. The ease of a sweepstake was also cited–Allport v. Nutt 1 C.B. 974, but that decision turned on the fact that it was within the prohibition of the Lottery Acts. In Jenks v. Turpin L.R. 13 Q.B. Div. 505 at p. 524 the question, What is a “common gaming-house?” is much discussed, and is defined to be, under the old Statute of Henry VIII of (33 Hen. 8, c. 9) and 8 and 9 Vic. cap. 109, “any house or place kept or used for play rag therein at any unlawful game.” Hawkins, J., gave a list of what are unlawful games, which is cited by the Magistrate. In the Indian definition the term “unlawful game” does not occur. But some “instrument of gaming” must be used to bring the case within the Indian law; and, in order to constitute gaming, there must he a game. So that, in both countries, there must be a game to make a common gaming-house; and for reasons already given, I do not think these instruments of rain-betting, and the way they are used, constitute a game. I think, on another ground, the Magistrate’s ‘orders should be maintained. The Act is of a penal-character, and must foe construed strictly No cases can be held to fall within it that do not fall within the reasonable meaning of its terms, even though they may fall within the mischief intended to be prevented. It ‘would be an undue straining of the word “gaming” to hold that it covers these lain-betting operations. The appeal must be dismissed.
Jardine, J.
2. I also am of opinion that the acquittal was right. The facts are not in dispute. It is admitted that people frequent the house of the accused to bet on the quantity of rain which may fall in a given time, and that there is an appliance used to measure the quantity, of the nature of a rain-gauge. This appliance is the accepted measure of the quantity; it registers quantity, just as the watch in the hand of the judge at a horse-race, registers time, or as a thermometer is used to register heat, or a barometer the pressure of the atmosphere. Its use resembles, further, the use of these instruments, in that it does not introduce any element of chance into the betting. Thus in my opinion, it differs very much from the “Pari Mutuel” machine, which in Tollet v. Thomas L.R. 6 Q.B. 514 was held to be an instrument of wagering, and to constitute the transaction, among the parties betting, a game of chance within the meaning of the Act 31 and 32 Vic, cap. 52, Section 3. The Advocate-General has argued that the appliance for measuring the rainfall constitutes the betting a game, and that the gauge is itself an instrument of gaming within the meaning of Bombay Act IV of 1887, Section 3,–an enactment which strikes at gaming, but not, in the preamble or elsewhere, at wagering or betting. He relies on Tollett v. Thomas L.R. 6 Q.B. 514. He concedes that, if two people meet–together where there is a thermometer, used for ordinary convenience or scientific purpose, and bet about the number of decrees of heat which it will register in a given time, the thermometer is not SKI instrument of gaming, the bet is not a game, and the persons betting are not guilty under the enactment. But, as I understand the argument, the contention is that, if the thermometer is contrived and used only to facilitate the betting, then the bet, the chance, and the instrument constitute a game. I do not think this criterion can be accepted in construing a Statute which, as it interferes, must be construed strictly-Bows v. Fenwick L.R. 9 C.P. 339 more especially as it shifts the onus of proof in-certain circumstances from the prosecution to the ‘accused. There would also be found great difficulty, in practice in drawing the distinction; as evidence would have to be taken about the reason for having the particular gauge, watch, thermometer, or barometer made and the various uses to which it might be applied. Moreover, the uncertainty would promote evasion. So in circumstances like those of Hampden v. Walsh L.R. 1 Q.B. Div. 189, where there was a wager whether the world is round, and the wager was settled by certain tests agreed upon before and applied by the referees and umpire on a spot chosen, the question whether the bet was a game, whether the enactment had been broken, might depend on the question whether the scientific instruments used to ascertain curvature had been indented, or made for the purpose, or were ordinary instruments of survey. I do not think the case of Tollet v. Thomas L.R. 6 Q.B. 514 goes as far as is contended. The English Statute strikes at wagering and betting: so the “Pari Mutuel” machine was obviously within the mischief contemplated. It was held to be an instrument of betting. There is no law in India which makes wagering and betting unlawful. This Act against gaming does not mention those practices. Again, there are two other differences between the ease of Toilet v. Thomas L.R. 6 Q.B. 514 and the case tried by the Chief Presidency Magistrate. In the former it was argued and shown that the amount of winnings did not depend solely on the result of the horse-race. Lord Cockburn, C.J., says (p. 521))–“Whether a horse-race be in itself a game of chance or not, we can entertain no doubt that, if some additional element of chance be introduced, the wagering on a horserace may be converted into a game of chance.” The “Pari ‘ Mutuel” arrangements introduced a variety of chances ” independent of the issue of the race, as well as of the will and judgment of the winner, depending, as it does, on the will or caprice of the other persons betting.” “There being, then, this element of chance in the transaction among the parties betting, we think it may properly be termed, as amongst them, a game of chance.” In the case before us this element did not exist: the rain-gauge only registered an operation of nature, and did in no wise, like the “Pari Mutuel” machine, increase the number of chances among the bettors themselves. Thus the reason on which Tollett v. Thomas L.R. 6 Q.B. 814 was decided does not apply to the present case of a rain-gauge, which did not of itself create a new and peculiar form of diversion among the betters which in England might be treated as a game under the Statute. The other distinction is that there is no horse-race or other sport or contest in this case as there was in Tollett v. Thomas L.R. 6 Q.B. 514. It must be repeated also that the learned Judges held that case to come within the mischief at which the English Statute struck, namely, wagering and betting But in India, as pointed out by the Chief Presidency Magistrate, the Legislature has refrained carefully from interfering with wagers or bets; and while enacting laws similar to those of England relating to common gaming houses, has abstained from any enactment of the laws about betting houses. There is no law here, like the Statute 16 and 17 Vic., Cap. 119, which was passed for the suppression of betting houses, and makes them to be deemed gaming-houses. The subject has been before the Legislature several times, and the omission to interfere finally with betting has doubtless been intentional. In 1848 it was decided by the Judicial Committee of Her Majesty’s Privy Council that the Statute 8 and 9 Vic., Cap. 109 (to amend the law concerning games and wagers), did not extend to India Ramloll Thackoorseydass v. Soojumnull Dhondmull 4 Moore’s I.A. 339, and that, in the absence of Statute, an action might be maintained on a wager. In the same year Act XXI of 1848 was passed, as suggested by the Judicial Committee, declaring null and void all agreements by way, of gaming and wagering. In Act VIII of 1867 an exception is made in favour of certain horse-racing transactions: and the rule and the exception are substantially reproduced in Section 30 of the Indian Contract Act IX of 1872. The Indian laws go no further than make wagering contracts void; they are not unlawful. The distinction is discussed fully in an unreported case, Parakh Govardhanbhai Haribhai v. Ransordas Dulabhdas Printed Judgments for 1875 p. 77 at pp. 81 and 32 by Westropp C.J. That judgment incorporates another by Sir M. Sausse, in which also that learned Chief Justice discusses the English and Indian Statute law, and affirms the unanimous judgment of the Supreme Court in Ramlal v. Dulabdas Perry’s Oriental Casses p. 198 that wagers were not illegal by Hindu law. “The state of Hindu law,” says Sir M. Sausse,” on this subject appears to have been very analogous to that of the British law before the Statute 8 and 9 Vic., cap. 106, until which period wagers, generally, were lawful contracts, although particular descriptions of them, such as gaming with dice, cards, &c., were rendered illegal by Statute.” It is also not to be forgotten that the Indian Legislature, in amending the Indian Penal Code, re-enacted in Section 294A, which treated lotteries as transactions which may be authorized by Government itself. The Indian Legislature have never expressed itself against wagering and betting in the severe terms used in the preamble to the English Statutes. If this Court were to hold that a bet is converted into a game, and a betting-house into a gaming-house, and the bettors there into offenders against the criminal law, because a rain-gauge, or hour glass, or other measure is contrived and used to settle the bet, I think the Court would assume to itself the work of legislation which Parliament has confided to another authority. Except by a metaphorical use of the word, contrary to the ordinary as well as the statutory use, a bet cannot, for the purposes of criminal law, be treated as a game. The common and legal use of the latter word coincide substantially; it required express enactment to make betting-houses be deemed gaming-houses. What the law treats as a game can be gathered. from the Statutes reviewed in Jenks v. Turpin L.R. 13 Q.B.D. 505 e.g. 16 Car. 2 c. 7 Section 2, where cards, dice, tables, tennis, bowls, skittles, shovel-board, cook fighting, horse-races, dog matches, foot-races are mentioned before the more general words “other pastimes, game or games whatsoever.” According to Bacon’s Abridgment, Gaming–a foot-race and a horse-race are games within the Statute; so it seems is cricket In the present case, where money is staked on an operation of nature, and the instrument is a mere measure of the operation, I am of opinion that the amusement provided by the keeper of the house, who makes an income by allowing the bettors to come there and use the rain-gange as a means of deciding the event of the bet, is not a game, and that the house is not a common gaming-house within the meaning of Bombay Act IV of 1887. I am also of opinion that the Act is not directed against betting and wagering practices, except as connected with games.
