JUDGMENT
F.I. Rebello, J.
1. Rule. Respondent waive service. By consent heard forthwith.
2. These are three petitions out of a group of petitions wherein the petitioners have prayed for quashing the proceedings in Criminal Cases launched against them or for directions not to prosecute. For the purpose of convenience out of these 3 petitions chosen, one is one from Mumbai and the others are from Thane. The facts in the Mumbai case are similar to all other cases.
3. Bare facts which are essential for deciding the issues in controversy need to be stated, which are as follows:-
In Writ Petition No. 700 of 1998, it is the case of the petitioner, that he is conducting Video Parlours since 1987 at various places in Mumbai. One such parlour was raided by the Police attached to Malwani Police Station on 27th April, 1998 at about 5.30 p. m. A case has been filed against the petitioner before the Metropolitan Magistrate’s 42nd Court, Borivali, being L.A.C. Case No. 788 of 1998. It is alleged by the petitioner that the prosecution case is that on 27th April, 1998, a bogus customer was sent to the Video Parlour with a view to seize the machines in the Parlour. 11 persons being associates of the petitioner were arrested with the marked currency notes which were handed over to the bogus customer. The Video Machines along with nickel counters and cash were seized. It is alleged that the petitioner is being prosecuted under the provisions of Sections 4(a) and 5(a) of the Bombay Prevention of Gambling Act. The petitioner has been shown as an absconding accused in the said case. The petitioner has also relied on certain past events in support of his petition. It is alleged that on 11th May, 1982 the Commissioner of Police, Bombay, had issued a letter to one Shri D.P. Punitar that there was no objection for operating wall machines in public places or in the shop. Subsequent to that several persons had installed electronic machines and were carrying on the business. No entrance fee was charged to the customers, who desired to play on the Video Game. They were, however, required to buy tokens which could not be exchanged back for money. Some time thereafter, it is alleged the Police started harassing the owners of such machines on the ground that the machines were used for gambling purpose. This Court in Writ Petition No. 12453 of 1983 examined the machines and had restrained the Respondent from preventing the use of the machines, unless found to be used for gambling. The said order was confirmed in Appeal No. 622 of 1983 by order dated 23rd August, 1983 passed by the Division Bench of this Court. After that the police insisted on taking action under the provisions of the Bombay Police Act, 1951 on the allegation that no licence had been taken under the said Act. Another petition came to be filed being Writ Petition No. 1616 of 1988 on the Original Side of this Court. The contentions raised therein was that licence was not necessary and was not prescribed under the Act for operating the Video Games Parlour. The petition was admitted and interim relief was granted restraining the respondents, their agents and servants from in any manner directly or indirectly seeking to restrain or preventing the petitioners from operating the machines. It is then alleged that in spite of all these orders the Police started instituting prosecutions against the owners of Video Parlours under Sections 4(a) and 5 of the Bombay Prevention of Gambling Act. Forty petitions came to be filed which were disposed of by a common judgment dated 22nd October, 1992 in Criminal Writ Petition No. 580 of 1998 (by Dudhat, J.).
On the facts of the case it is contended by the petitioners that there is no offence committed under the Bombay Prevention of Gambling Act and the Video machines operated by the customers was a game of skill. It is further contended that there is no evidence to show that the machines had been used as an instrument of gaming and hence registration of case is contrary to law. Various grounds had been taken and reference is made to various orders of this Court as well as orders of the Apex Court which shall be adverted to later on.
4. On behalf of the respondents Shri T.A. Ghobale, the Police Inspector (Crime) attached to Malvani Police Station. Malad, has filed an affidavit. In the affidavit it is set out that the Senior Police Inspector Shri D.G. Shinde, Shri Ghobale, Police Inspector, Sub Inspector Shri S.N. Shinde and also Sub Inspector Shri Gaikwad received information that gambling was being played in the premises situated at Shop No. 124, Plot No. 24, New Collector Compound, Gate No. 6, Malvani, Mumbai-95. It is on this information two panchas and one punter were called to the Police Station and pre-trap panchanama was prepared. The punter was asked to give 2 marked currency notes of Rs. 50/- each and asked to go to the said video parlour and to give the signal to the raiding party after playing on the said machine. The said punter with one panch went to the said Video Parlour and handed over two marked currency notes to the person sitting on the counter and obtained 100 coins. The machine operator thereafter explained to the punter how to operate the machine. At that time the Manager Shri Nadar explained to the said punter that if he looses, after inserting the coin, he would get nothing and if he wins he would get more money. The punter played on the machine by name Royal Flash. Though he inserted 100 coins in the machine he could win nothing. The Panch came out and gave the agreed signal and the raiding party raided the said premises. The post-trap panchanama was drawn in the presence of Panch witnesses which was given to the 5 accused who signed the said Panchanama in token of having received from the said party and 3 accused refused to sign in spite of the fact that they received copy of the panchanama. It is then averred that the Senior Police Inspector Shri B.G. Shinde has been duly authorised to carry out the raids as provided under Section 6 of the Prevention of Gambling Act. After preparing pre-trap and post-trap panchanamas, statement of the punter, who agreed to act as bogus customer, has been recorded, as also the statement of the Panchas. It is then set out that the Video machines hanging to the wall do not bear any screen or C.R.T. tubes. The modus operandi of these video machines, it is alleged, is that the customer has to purchase the coins which are only available at the counter for exchange of money and by inserting the coin in the machine, the machines start working. The video machine on which the game is played do not require any skill by the person playing and is absolutely a game of chance. The use of the said machines, it is alleged, is gambling and on account of that prosecution has been launched. In so far as the judgment of the learned Single Judge of this Court is concerned, reference is made to para 16 of the judgment. It is pointed out that even according to the said judgment if there was evidence that after operating the machines, coins were left with the customer were exchange at the counter, then it could be said that the machines were used as an instrument gaming.
5. In Writ Petition No. 1313 of 1998 it is alleged that on 1st September, 1998 the respondent No. 1 visited the shop and ordered the Petitioner to close down the business of Video Parlour and threatened to launch prosecutions under the Prevention of Gambling Act. The respondent No. 1 informed the petitioner that he was acting on the orders of the respondent No. 2. On account of these threats he had to stop his business, which is his only means of livelihood. On account of that he is suffering great losses as his business is stopped completely. It is alleged that he has never indulged in any offence under the Prevention of Gambling Act and his Video Parlour is operated by customers only as a game of skill. He has further alleged that he has made an application dated 10th August, 1998 to the District Collector for licence to conduct the said Video Parlour. The District Collector thereafter has granted him licence. The said licence granted permission to the petitioner to instal 11 Video Machines. In these circumstances it is alleged that his business is perfectly legal and it is not open to the respondent No. 1 to prevent the petitioner from conducting business. The licence is valid upto 31st December, 1998 after which it has to be renewed. He has, therefore, prayed for an order prohibiting the respondents from restraining the petitioner and his servants from carrying on his legitimate business of Video Game and some other directions were sought for. No affidavit in reply has been filed in the petition. Considering what is alleged in the petition the petition can be disposed of on the facts as stated.
6. In Criminal Writ Petition No. 1098 of 1998 the petition has been filed to quash the prosecution launched by the Nallaso para Police Station in C.R. No. 224 of 1998. The facts alleged in this petition are similar to the facts averred in Criminal Writ Petition No. 700 of 1998 except to the extent that the raid was carried out on 13th June, 1998 at about 6.30 p. m. It is further alleged that in respect of Video Parlour located at Nand kishore Shopping Centre, Shop No. 15, Four Bungalow, Andheri (West), Mumbai, was raided on 15th September, 1994 and prosecution was instituted under the Gambling Act. The petitioner had to file a writ petition to challenge his prosecution. By order dated 4th October, 1995 the petition was rejected on the ground that it was open to the petitioner to file appropriate applications before the Metropolitan Magistrate with direction to the Magistrate to dispose of such application if made as expeditiously as possible. It is then alleged that the petitioner aggrieved by the order of the Division Bench preferred a Special Leave to Appeal (Criminal) No. 1347 of 1996 on 29th November, 1996. The Apex Court was pleased to pass the following order:
Leave granted.
Pending further orders of this Court, the operation of the impugned judgment shall remain stayed and the respondents are also restrained from initiating any action against the petitioner under the provisions of Bombay Prevention of Gambling Act, except in accordance with law.
During the course of hearing, learned Counsel has been pleased to produce an order passed in Criminal Appeal Nos. 1978 to 1980 of 1996 by the Apex Court wherein the Apex Court has remanded the said matters back to this Court for disposal on merits as similar matters had been entertained by this Court, being Writ Petition No. 1066 of 1994 and other petitions which are awaiting disposal. The petitions had been remanded to be disposed of on merits. The interim orders passed on 29th November, 1996 have been continued until further orders of the High Court. At the hearing of the petition it was further alleged that no Rules have been framed for Thane in so far as Video Parlours are concerned requiring a licence under the provisions of the Bombay Police Act and on that count also the prosecutions being in violation of the Rules ought to be quashed and set aside.
7. With this background the issues arising in these petitions need to be decided. The learned Counsel appearing on behalf of the petitioners have principally formulated their challenges as under:-
1. Video game machines are not instruments of gaming and as such the prosecution launched is without authority of law;
2. The presumption under Section 7 would arise only if the instrument seized is an instrument of gaming. In the instant case as the Video machines are not instruments of gaming there is no presumption and consequently the prosecution should be quashed and set aside;
3. Once a licence has been issued in terms of Rules 33-W of the Rules framed namely Licensing and Controlling Places of Public Amusement (Other than Cinema) and Performances for Public Amusement including Melas and Tamasha’s, 1960 and Rules for Place of Public Entertainment Licenses (hereinafter referred to as “the Rules”) no prosecution could be lodged under Prevention of Gambling Act as it cannot be said that Video Machines are instruments of gaming.
4. Even if there is no licence, the prosecution at the highest can be for non-holding of licence and not under the Gambling Act.
5. For the area of Thane no Rules have been framed and even if the Bombay Rules have been adopted it is without authority of law and consequently the prosecutions launched within the jurisdiction of the Thane Police Commissionerate have to be quashed and set aside.
On behalf of the Respondents, the learned P.P. has contended, as under:-
1. That the judgment in Criminal Writ Petition No. 580 of 1988 has to be restricted to the facts of that case. A perusal of the said judgment would show that no issue of law of general nature has been decided which could be said to be the ratio of that judgment which would prevent the respondents from prosecuting persons running video parlours and as such the issue is not concluded by the judgment of a Single Judge of this Court in Criminal Writ Petition No. 580 of 1988 decided on 22nd October, 1992.
2. On facts of the present case it is contended that there is prima facie material to show that the machines on which the games were played are not of skill, but purely game of chance. Once there is prima facie material disclosing an offence, this Court should not invoke its extra ordinary jurisdiction under Article 226 or 227 of the Constitution of India or for that matter under Section 482 of Criminal Procedure Code.
3. Rules have been framed for the Thane area and as such there is no merit that there are no Rules.
8. The learned Public Prosecutor has also placed a chart of the various cases, showing in which cases licence has been issued and in which case licensees have not been issued. In so far as the present three petitions are concerned, the following facts have been placed before the Court. In Writ Petition No. 700 of 1998 one Chetan Velji Nisar has applied for licence on 3rd November, 1998 i.e. after filing of the petition and the application is still pending. In Criminal Writ Petition No. 1098 of 1998 there is no application for a licence. In Criminal Writ Petition No. 1313 of 1998 the petitioner has applied by letter dated 14th September, 1998, but there is no application as required under Rule Dl of the Rules.
9. With the above factual background and considering the contentions the points which arise for decision may be summarised as under:-
(a) Whether the judgment of (Dudhat, J.) in Criminal Writ Petition No. 580 of 1998 concludes the issue that Video game Machines are not instruments of gaming;
(b) Whether the Video game Machines are instruments of gaming within the meaning of Bombay Prevention of Gambling Act, 1887;
(c) In the event a licence is granted for operating Video game Machines will it still amount to instrument of gaming within the provisions of the Bombay Prevention of Gambling Act, 1887 and whether rules have been framed for the Thane area and if there are no Rules what is the effect;
(d) Whether on the facts of these cases this Court should exercise extra ordinary jurisdiction under Article 226 and Article 227 of the Constitution to quash all prosecution launched against the petitioners and/or to issue directions against the respondents not to prosecute the petitioners.
10. I will first proceed to decide the issue whether the judgment of Dudhat, J. concludes the issue as to whether the Video Game Machines are instruments of gaming. It may be mentioned at the outset that the judgment was delivered on 22nd October, 1992 by which time the Rules had been amended and after Clause (d), Clause (di) had been introduced whereby the definition of Game was included. Clause (di) reads as under:-
(di) “Game” means and includes any video game which is controlled or operated by any means either manually or otherwise or any other amusement or games by whatever name called, provided by the licensee in any premises, which is used or intended to be used as a place of Public Amusement and to which any member of the public has access.
Dudhat, J., found that the issue as to whether a licence has been obtained or not was irrelevant for the purpose of deciding the controversy, which had arisen before him. This is discernible from para 14 of the Judgment. Dudhat, J., in paragraph 17 after referring to the judgment of the Apex Court in Jagat Singh Kishor Singh Darbar and Ors. v. State of Gujarat adopted the following tests to be applied for the purpose of Clause (ii) of Section 3 of the Act of 1887 to find out whether it would be an offence.
(1) Instruments of gaming must be kept or used in the premises in question.
(2) The keeping or using of the instruments aforesaid must be for the profit or gain of the person owning, occupying, using, or keeping such premises, and
(3) Such profit or gain may be by way of charge for the use of the premises or of the instruments or in any other manner whatsoever.
It may be mentioned that in Jagat Singh Kisan Singh Darbar (supra) on search by the Police concerned betting slips and boards indicating the opening and closing numbers of Worli Matka were recovered. The judgment was not in respect of video games. The learned Single Judge on the material proceeded to hold that out of the three vital ingredients and after taking into consideration all the statements and the Panchanama relied on by the respondents, there was no evidence whatsoever on record to show that the customers including the bogus customers were allowed to use the machines for the game of chance or some stake or wager so as to become the property of the winner. There was also nothing to show that the machines used by the customers in the parlour were instruments of gaming kept or used in the premises and/or that the machines were kept and were used for profit or gain of the person owning, occupying, using or keeping such premises. Further the matter proceeded on the footing that the case was covered by Section 3(ii) and not Section 3(i) of the Prevention of Gambling Act. It is, therefore, clear that though in the earlier part of the Judgment the learned Single Judge referred to the definition of “instrument of gaming” the definition of place of amusement and the dictionary meaning of the word “gaming” and also “game” it was on the facts of that case that the Court came to the conclusion that no evidence was disclosed to frame a charge under the provisions of the Gambling Act. Can the ratio of that judgment be made applicable to the present cases and the fact set out herein.
It can be said to be the ratio decidendi of the judgment if the following requirements are met. The issue involved must be directly and substantially in issue in the case. The issue needs to be decided and thirdly there are reasons given in the judgment whilst deciding the issue. If the judgment of Dudhat, J. is considered, in the first instance the Video Parlour had a licence to operate the Video Game Machines. The question that the Court has called upon to decide was whether the machines can come within the definition of words “instrument of gaming”. For that purpose the learned Judge in paragraph 7 posed the question that the prosecution must prove that the instruments were kept and used as instruments of gaming for profit or game on the person owning, occupying, using or keeping video parlour. The learned Judge in para 14 observed as under:-
If mere operation of such machines were to come within the scope of Gambling Act, then such licence would not have been given by respondent No. 1 in respect of the said machines.
It is in the light of these observations the Court proceeded to find out whether there was any evidence to show that in fact the instruments were used as instruments of gaming. Therefore, what was in issue was whether the licensed machines were being used as instruments of gaming. There was no prosecution for violation of the rules of not having licence. The ratio of that judgment will, therefore, have to be applied to cases where a person is being prosecuted for using a licensed machines as instruments of gaming. On the facts of that case it was found that there was no material. It is, therefore, clear that the ratio of that judgment will not apply to the facts of the present cases before us, where admittedly there was no licence or prosecution for failure to have licence. That judgment, therefore, will not stand in the way of disposal of these matters.
It may also be mentioned that in a subsequent judgment delivered in Criminal Writ Petition No. 125 of 1995 and other Writ Petitions on 4th October, 1995 the Division Bench consisting of Tipnis and Dughat, JJ., (wherein the petitioner in Writ Petition No. 700 of 1998 was also the petitioner in various petitions), held that the petitioners have an alternative and efficacious remedy by moving the Magistrate for discharge and on that count dismissed the petitions. It is no doubt true that in some other petitions the petitioner in Writ Petition No. 700 of 1998 had approached the Apex Court from the orders passed in Writ Petition No. 1066 of 1994 and other petitions and the Apex Court has set aside the order of this Court and remanded the matter to this Court as other petitions have been admitted, to be decided on merits. The point, however, which I was called upon to answer was whether the judgment of Dudhat, J., concluded the issue that Video Game played on video machine in a video parlour is gaming. On the perusal of the said judgment I am clearly of the opinion that the judgment was delivered on the facts of that case and the material on record in that case. Even otherwise the subsequent judgment of the Apex Court which will be referred to hereinafter where the Apex Court has held that video game machines are instruments of gaming, will alter the position. In that light of the matter the first contention raised on behalf of the petitioners must be rejected.
11. That brings us to the second point whether the machines installed in video parlours are instruments of gaming. Before proceeding to decide the said point, the third point needs to be decided as there is not much, controversy on the said point. Rules under the Bombay Police Act have been amended to include Video Games by incorporating the definition of ‘game’ in the Rule. The purpose and object of this is that once the applicant applies for licence the authority competent to grant the licence will be in a position to decide whether the machine is game of skill or instrument of gaming. This is so, as an authority licensed to grant the licence definitely cannot grant a licence to an instrument which would amount to gaming within the meaning of the Bombay Prevention of Gambling Act, 1887 and the Rules framed under the Bombay Police Act read with the Bombay Prevention of Gambling Act 1887. Therefore, once a licence is granted unless there is a breach of the terms of licence or tampering with the machine it necessarily must be held that the machines so licensed would ordinarily be not instruments of gaming. The learned Public Prosecutor fairly conceded that in respect of machines where licenses have been issued unless there are circumstances like tampering with the machine or similar issue, normally the Police would not launch any prosecution. That issue, therefore, need not detain us for long. At the highest if the applicant applies for licence and as stated above on the facts in Writ Petition No. 1313 of 1998 the business has been closed on account of non-renewal of licence, necessary directions can be issued to the Licensing Authority and if the petitioner had earlier a license, pending renewal, protection can be given for allowing such of the petitioners who had earlier licenses to carry on business till such time such Licensing Authority disposes of such applications for the machines which had been originally licensed. In so far as Criminal Writ Petition No. 1098 of 1998 and Criminal. Writ Petition No. 1313 of 1998 are concerned, the additional point raised was that no rules have been notified as required by law. The learned Public Prosecutor has produced the Rules known as Rules for Licensing and Controlling Places of Public Amusements (Other Than Cinemas) and Performances for Public Amusement, including Melas and Tamasha’s, 1960 made by the District Magistrate, Thane with the previous sanction of the Government in exercise of the powers conferred by Clauses (wm) (wa), (x) and (y) of Sub-section (1) of Section 33 of the Bombay Police Act, 1951. Similarly, the Gazette has been produced whereby the said Rules were amended by the Commissioner of Police, Thane pursuant to the amendment of Clause (di). This clause refers to the game in respect of which a licence is required. The amendment has been made by the Commissioner of Police Thane with the previous sanction of the State Government in exercise of powers conferred on him by the Bombay Police Act. The said Rules have been Gazetted in the Maharashtra Government Gazette on 28th May, 1992. The contention on behalf of the petitioners that in so far as Thane District is concerned that Rules have not been framed must, therefore, be rejected.
12. That brings us to the heart of the controversy, namely whether it can be said that the machines used to play video games are instruments of gaming. The necessary corollary in this case would be whether, on the facts as set out more specifically in Criminal Writ Petition No. 700 of 1998. Is it possible at this stage to decide whether the particular machines used are instruments of gaming or not. For that purpose certain provisions of the Bombay Prevention of Gambling Act, 1887 need to be considered. I may at this point refer once again to the judgment of the learned Single Judge Dudhat, J., which proceeded on the footing that on the facts before him what was under consideration was Clause (ii) of Section 3 of the Act. The issue whether Section 3(i) would be attracted in so far as the machines used to play video games are concerned was not in issue. It will be important also to bear this in mind while answering the question which has been raised in this group of petitions. In Section 3 gaming includes wagering or betting except wagering or betting upon a horse-race, or dog-race. In other words it is an inclusive definition and not exclusive. What is excluded from the definition of gaming is only betting on horse-race or dog-race as set out in Sub-clauses (a), (b) and (c) of Section 3. Clause (i) of Section 3 thereafter refers to gaming on various kinds of commodities, stock, shares, digits, and other events which are referable to Clauses (a) to (e). What is relevant for the purpose of the discussion herein is Section 3(i)(f), which reads as under:-
3(i) in the case of gaming –
(a) …
(b) …
(c) …
(d) …
(e) …
(f) on the pictures, digits or figures of one or more playing cards or other documents or objects bearing numbers, or on the total of such digits or figures, or on the basis of the occurrence or non-occurrence of many uncertain, future event, or on the result of any draw, or on the basis of the sequence of any permutation or combination of such pictures, digits, figures, numbers, events, or draws.
any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming;
and Section 3(ii) which reads as under :
(ii) in the case of any other form of gaming, any house, room or place whatsoever in which any instrument of gaming are kept or used for the profit or gain of the person, owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place of instrument or otherwise howsoever.
13. The question is whether Sections 3(i)(f) and 3(ii) are mutually exclusive. In other words if it is an offence under Section 3(I)(f) will it cease to be an offence under Section 3(ii) or vice-versa. That has been the tenor of the argument advanced on behalf of the petitioners. As pointed out earlier, gaming is an inclusive definition. It is not exclusive. For it to amount to gaming, what is required is that it must amount to betting or wagering. Prima facie on the material on record as disclosed in the affidavit filed by the respondents, the material shows that when a person goes to a Video Parlour he has to exchange currency note or cash into tokens. These tokens are then to be inserted in the machine. On insertion in the machine the player either looses the token or on occasions gets more tokens, these tokens are to be returned, thereafter in exchange for money. In other words if Video Game Machine is an instrument of gaming the ingredients namely of profit and use of the place are fulfilled. The question is whether the machine is purely a game of chance, a mixed game of chance or skill and/or skill only. In so far as Section 3(i) is concerned, it would be a common gaming house where any of the predicates of Sub-clauses (a) to (f) are satisfied. Sub-clause (f) is important as it includes playing cards or other documents or objects bearing numbers or the pictures, digits or figures of one or more playing cards or other documents or objects bearing numbers or pictures, digits or figures of one or more playing cards or other documents or objects or on the basis of the sequence or any permutation or combination of such pictures, digits, figures, numbers, events or draws. Therefore, whenever there is combination of pictures, digits or figures with reference to an object bearing digits, figures, numbers, events or draws in any house, room or place, that would be a common gaming house. Merely because the Video machine is an electronic and/or mechanical appliance, will not mean that it ceases to be an object. Section 3(ii) would include those categories which are specifically not set out in Sections 3(i)(a) to (f). If the game is not covered in Section 3(i)(a) to (f) then in that event if it is any other form of game that also would amount to an offence if the house, room or place is used by way of charge for the use of such room or place or instrument or otherwise howsoever. Therefore, a perusal of Section 3 would only show that Section 3(i) and Section 3(ii) are not mutually exclusive. That would depend on the facts of each case. It will, therefore, not be possible to restrict the meaning as done by Dudhat, J. The tests followed by Dudhat, J., relying on the judgment of Jagat Singh Kishor Singh Darbar (supra), was in respect of what was known as ‘Worli Matka’ the facts wherein indicate use of any electronic or mechanical instrument. The issue whether video games is a ‘game’ falling only under Section 3(ii) to my mind will not be the correct test. That would depend on the facts of each case considering the machines. It is true as has been pointed out by the learned Counsel on behalf of the petitioners that the presumption under Section 7, would arise only if it is an instrument of gaming. There can be no difficulty In accepting the said argument. However, again what has to be answered is whether the game played with the instrument is a game of chance or skill.
13. Let me now examine based on the judgments of the Apex Court whether it can be said and on the material on record whether video game machine is purely a game of chance, a mixed game of chance and skill or a game of skill. The first reference, though not in point of time, will be in the case of M.J. Sivani and Ors. v. State of Karnataka and Ors. . This judgment to my mind concludes the issue in so far as the facts involved in these petitions are concerned. Several petitions had come to be filed before the Karnataka and Madras High Courts. Notifications and orders had been issued respectively under the Mysore Police Act, 1963 and the Madras City Police Act, 1888. By the said notification and orders the persons operating video game machines were called upon to obtain licence. The said orders came to be challenged by the appellants on various grounds. A Single Judge of the Karnataka High Court held that video game is a game covered by the Bangalore Order and that the petitioners had to obtain the licence. The challenge, that it imposed a restriction on the petitioners fundamental right to carry on business and as such was violative of Article 19(1)(g) of the Constitution was rejected. An appeal was preferred before the Division Bench of the same Court. Similarly, the Division Bench of the Madras High Court held that these were reasonable restrictions and do not violate Article 19(1)(g) or Article 21 of the Constitution. In fact as seen from the judgment a survey of video games was conducted by a Committee of high level Police Officers and practising Advocates, who had appeared for some of the Appellants. The Committee found malpractices committed in conducting the games. It was found that the video game is covered by the Act and the Order and that the ban imposed on the named games as games of chance and permitting the rest of the games to be games of skill was in public interest. The persons aggrieved by the judgments of the Karnataka High Court and the Madras High Court preferred Special Leave Petition before the Apex Court. As seen from para 4 of the judgment the main thrust before the Apex Court was whether the video games attract the relevant orders and is a game within the definition of’gaming’ as defined under the Tamil Nadu Gaming Act, 1930 or the Madras City Police Actor of the Mysore Act. In para 5 of the judgment the Apex Court has noted the definition of gaming in Section 2(7) of the Mysore Act. In para. 7 the Apex Court has noted the definition of gaming in Black’s Law dictionary, 6th Edition, defines “gaming” at page 679 thus : “The practice or act of gambling. An agreement between two or more persons to play together at a game of chance for a stake or wager which is to become the property of the winner, and to which all contribute. The element of gaming are the presence of price or consideration, chance and prize or reward.” “Gaming place” means any place, room building, vehicle, vessel, tent or location which is used for any of the following : making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries or policy games; playing games of chance for money or other property, or playing gambling devices. “Game” includes a contrivance which has for its object to furnish sport, recreation, or amusement. In para 8 again game has been referred to as to play any game whether of skill or chance for money or money’s worth; and the act is not less gaming because the game played is not in itself unlawful and whether it is involved or did not involve skill. In para. 11 the Apex Court was considering where in a certain game, where certain operations are to be performed to enable the gamester to play the game, the person taking part in such operations must be deemed to be ‘gaming’ or actually assisting in the gaming. The Apex Court noted that no game can be a game of skill alone as in any game in which even great 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 mere skill chance must play its part. The Apex Court further noted that it is not necessary to decide in terms of mathematical precision the relative proportion of chance or skill when deciding whether a game is a game of mere skill. Then the Apex Court observed that in a game when the element of chance strongly preponderates, it cannot be a game of mere skill. Applying this, the Apex Court held that it is not practicable to decide whether particular video game is a game of skill or mixed game of skill and chance. It depended upon the fact of each case. Thereafter in para 13 the Apex Court has posed a question whether video game is a game and whether it is a game of skill or chance and liable to be regulated under the relevant Act, Notification or regulations or orders issued thereunder. Reference was made to various kinds of games. The Apex Court noted the various kinds of games played on video machines which includes figures, fruits and/or numbers. The games played on those machines are played by taking tokens which are inserted in the machines as in the present case. The Apex Court then observed as under:-
If the player presses the button without knowing the outcome t. e. the nature of cards that would be turned, it is only a game of chance for the card opened contains a numerical or either higher or lower denomination. Video gaming, therefore, is associated with stakes for money or money’s worth on the result of a game, be it a pure chance or mixed skill or chance.
In para 15 the Apex Court observed as under:-
Whether a particular video game is a game of skill or a game of chance, or mixed chance or skill requires to be determined on the main element, namely, skill or chance. If it is a game of pure chance or mixed chance and skill, it is gaming. Even if the game is for amusement or diversion of a person from his usual occupation for entertainment, it would constitute “gaming”.
Then the Apex Court referred to the report prepared by the Committee wherein it was disclosed that one player by name Ramesh lost rupees one lakh in video games. The Apex Court then observed as under:-
By allowing such games, the innocent children and the common public would lose hard earned money. Machines electronically operated are adjusted in such a way that the player always lose the game since no skill is involved. Machines were tampered with, so that chances of winning by player was almost an impossibility. The Commissioner, therefore, had prohibited such games of chance while permitting to play the games of skill.
The following observations in para 19 are also relevant:-
Unregulated video game operations not only pose danger to public peace and order and safety; but the public will fall into prey of gaming where they always stand to lose playing in the games of chance. Unless one resorts to gaming regularly, one can hardly be reckoned to possess skill to play the video game. Therefore, when it is a game of pure chance or manipulated by tampering with the machines to make it a game of chance, even acquired skills hardly assist a player to get extra tokens. Therefore, even when it is a game of mixed skill and chance, it would be a gaming prohibited under the statute except by regulation. The restriction imposed, therefore, cannot be said to be arbitrary, unbridled or uncanalised.
The Appeals preferred before the Apex Court were rejected as the Apex Court found that the restrictions imposed were reasonable and do not violate the fundamental rights of the Appellants before it in carrying out trade or business or the right to life or liberty as contained in Article 21 of the Constitution. To any mind this judgment answers the issue, as it is clear that there are video games which may be games of skill and video games which are games of pure chance. Whether it will be a game of chance or skill would depend on the machine on which the game is played.
Reference may also be made to the judgment in the case of Dr. K.R. Lakshmanan v. State of T.N. and Anr. . The Tamil Nadu Legislature had enacted a law by which horse race was brought within the definition of game. The said law, however, was not enforced till 1975. The Madras Race Club challenged the said enforcement. The petition was dismissed and that is how the matter came before the Apex Court. The Apex Court after considering all the aspects of the matter held that the provisions of the 1986 Act are discriminatory and arbitrary and quashed the same. However, we are not concerned with the facts in that case. What is relevant are some observations of the Apex Court as to what is a game of chance and what is a game of skill. The Apex Court in para 3 distinguished between what is a game of chance or of skill or skill and chance combined. The Apex Court observed that a game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know that it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt with the cards. A game of skill, on the other hand although the element of chance necessarily cannot be entirely eliminated is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even rummy are considered to be games of skill. The Courts have reasoned that there are few games, if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element ‘skill’ or ‘chance’ which determines the character of the game. Thereafter again in para 20 referring to its earlier judgments the Apex Court observed as under:-
20. The judgments of this Court in the two Chambarbaugwala cases and in the Saiyanarayana case clearly lay down that (i) the competitions where success depends on substantial degree of skill are not ‘gambling’ and (ii) despite there being an element of chance if a game is predominantly a game of skill it would nevertheless be a game of ‘mere skill’. We, therefore, hold that the expression ‘mere skill’ would mean substantial degree or preponderance of skill.
In the case of Jagat Singh Kishor Singh Darbar and Ors. v. State of Gujarat what was in issue before the Apex Court was Bombay Prevention of Gambling Act, 1887, the same Act under which the petitioners are being prosecuted. The appellants before the Apex Court had been found guilty of Section 5 of the Act. On being convicted they had approached the Apex Court. The matter pertained to what is known as Worli Matka, It was contended that the prosecution had been unable to prove that the houses where the instrument was found was not a common gaming house within the meaning of Section 3 of the Act. It was contended before the Apex Court on behalf of the appellants that profit or gain mentioned in the definition must have a direct relation with the use of the premises or with the instruments of gaming and a mere expectation or probability of profit arising from gaming would not be sufficient to bring the place within the definition of the common gaming house. The contention was rejected by the Apex Court. This Court had held that the expression “for the profit and gain of the person owning, occupying,” was that the purpose of occupying or using the premises must be such profit or gain as meant a probability or expectation of profit or gain and not necessarily a certainty of it and that the expression would embrace even a case where a keeper of the premises expected to gain by the process of gaming itself. The Apex Court upheld the interpretation as given by this Court. The Apex Court noted with approval the judgment in the case of Emperor v. Dattatraya Shankar Paranjpe AIR 1924 Bom. 184 : 25 Bom. L.R. 1089 : 77 I.C. 995 : 25 Cr. L.J. 531 and Emperor v. Chimanlal Sankalchand 1945 Bom. 305 wherein it was held that even the occupier of a gaming house if he had hope of making some profit would also be liable.
14. From a perusal of the discussions in the various judgments of the Apex Court as set out above, it is clear that it is not possible to decide whether game played on the particular video game machine is a game of pure chance, a game of chance or skill or a game of skill which would mean preponderance of skill. My attention was also invited to a judgment of this Court in the case of State of Maharashtra v. Talakshi Malsi Sawala 1972 Bom. L.R. 373. I do not propose to deal with the contentions raised therein as in my view the judgments of the Apex Court by themselves have laid down the tests and on the cornerstone of those judgments this Court will have to decide whether the game played on a particular video game machine amounts to gaming.
In the instant case statements have been recorded of the punter. Panchanama has been drawn up. From the statements and the panchanamas drawn up which have been referred to in the affidavit prima facie it cannot be said that the game played on the video machine was preponderantly a game of skill. The material on record would disclose prima facie that it is a pure game of chance. Once it is so held it will be Impossible to quash the proceedings. I may also refer to the fact that consistently, Division Benches of this Court, have been taking the view that this Court should not Interfere in the extra ordinary jurisdiction of this Court under Articles 226 and 227. It is no doubt true that it is open to this Court to quash proceedings. That would be in a limited number of cases where the material on record by itself will not indicate any offence of like instances as laid down by the Apex Court. That is not the position in the instant case. It is in this context that the requirement of a licence under the Bombay Police Act would be relevant. While granting a licence the Licensing Authority would be deemed to apply his mind as to whether the machine for which a licence has been sought for involves pure chance or mixed chance or skill or preponderantly skill. It is depending upon that the licence will be granted. It is no answer that at the highest if the licence has not been obtained the petitioners can be prosecuted for failure to obtain the licence. In these cases the prosecution prima facie has been able to establish that the machines on which the game was played was a game of chance. Further, no directions can be issued not to prosecute as no machines can be operated without a licence.
Having said so, I will now deal with the reliefs in each of the petitioners.
15. In Criminal Writ Petition No. 700 of 1998 oneChetan Velji Nisar has applied for licence on 3rd November, 1998. The said application is pending. The reliefs further prayed for in Criminal Writ Petition No. 700/98 is to quash LAC No. 788 of 1998 pending before the Metropolitan Magistrate, 42nd Court, Borivali. For the reasons set out above, it is not possible on the facts of this case to quash the proceedings.
Rule discharged. Criminal Writ Petition dismissed.
The Licensing Authority however to dispose of the application for licence dated 3rd November, 1998 not later than 31st March, 1999.
16. In Criminal Writ Petition No. 1098 of 1998 the reliefs are to quash the prosecution. There is no licence and for reasons set out earlier the relief cannot be granted.
Rule discharged. Criminal Writ Petition dismissed.
17. In Cri. Writ Petition No. 1313 of 1998 the petitioners has applied for a licence on 10th August, 1998. The said application is not strictly as required under Clause (di). In the event the petitioner has to furnish further details the respondents to intimate to the petitioner within 4 weeks from today any information that may be required. The petitioner thereafter to furnish such information within two weeks thereafter. The Licensing Authority to dispose of the application within 4 weeks thereafter.
Rule is made absolute in the terms aforesaid.
