PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
K. SATYANARAYANA & ORS.
DATE OF JUDGMENT:
22/11/1967
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION:
1968 AIR 825 1968 SCR (2) 387
ACT:
Hyderabad Gambling Act (2 of 1305F), ss. 3, 7 and
14--Extra charges levied by club for playing cards, and
playing beyond prescribed hour-Common gambling house if
constituted--Rummy, if a game of chance.
HEADNOTE:
The police raided the premises of a club and found
respondents 1--5 playing "Rummy" for stakes, counters and
money on the table and playing-cards with the players.
Respondent 6 the Treasurer of the Club, was holding the
stake money. Respondent 7---the Secretary of the club was
not present then. All the respondents were convicted by the
Trial Court, but the conviction was set aside by the High
Court. In appeal to this Court, the appellant-State
contended that this club was a common gambling house as. a
fee of 5 points per game was charged by the club, the
playing-cards. were supplied at an extra charge of Rs. 3.
there was a sitting fee of Re. 1 per person who joined the
game, and if the game continued beyond a certain time a
late fee was levied; and further that. the presumption under
s. 7 of the Gambling Act had not been repelled;but on the
other hand it had been confirmed by the making of this
charge by the club. Dismissing the appeal
HELD: This club was not a common gambling house.
The presumption under s. 7 even if it arises in this case,
was successfully repelled by the evidence which had been
led. [392 D]
Just as some fee is charged for the games of billiards,
ping-pong, tennis etc. an extra charge for playing cards
(unless it is extravagant) would not show that the club was
making profit or gain so as to render the club into a common
gambling house. Similarly, a late fee is generally charged
from members who use the club premises beyond the
scheduled time This is necessary because the servants of
the club who attend on the members have to be paid extra
remuneration by way of overtime, and expenditure on light
and other amenities has to be incurred beyond club house.
The accounts showed that the sitting fee of 50 raise was
charged per person. This was not such a heavy charge in a
Members' Club as to be described as an attempt to make a
profit or gain for club. Of course, if it had been proved
that 5 points per game was charged, that might have been
considered as an illegal charge sufficient to bring the club
within the definition. [392 G--393 C]
The protection of s. 14 was not available in this case.
Rummy is not a game entirely of chance like the 'three-card'
game. It requires certain amount of skill because the fall
of the cards has to be memories and the building up of Rummy
requires considerable skill in holding and discarding cards.
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 in all 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 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 387
388
the owner of the house or club is making a prOfit or gain
from the game of Rummy or any other game played for stakes,
the offence may be brought home. [393 F--394 B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 40 of
1965.
Appeal by special leave from the judgment and order dated
August 4, 1964 of the Andhra Pradesh High Court in Criminal
Revision Case No- 479 of 1964.
P. Ram Reddy and B. Parthasarathy, for the appellant.
A.S.R. Chari, K. Rajendra Chaudhuri and K.R. Chaudhuri, for
the respondents.
The Judgment of the Court was delivered by
Hidayatullah, J. The State of Andhra Pradesh appeals by
special leave against the judgment of the High Court of
Andhra Pradesh in which, accepting a reference by the
Sessions Judge, the conviction of the respondents under ss.
4 and 5 of the Hyderabad Gambling Act (2 of 1305F) ordered
by the 5th City Magistrate at Secunderabad has been set
aside.
The short question in this case is whether the premises of a
Club known as the “Crescent Recreation Club” situated in
Secunderabad were being used as a common gambling house and
whether the several respondents who were present at the time
of the raid by the police could be said to be gambling
therein. The facts of the case are as follows :–
On May 4, 1963, the police headed by Circle Inspector
Krishnaswami raided the premises of the club. They found
respondents 1-5 playing a card game known as “Rummy” for
stakes. At the time of the raid, there were some counters on
the table as also money and of course the playing-cards with
the players. Respondent No. 6, the Treasurer of the Club,
was also present and was holding the stake money which is
popularly known as “kitty”. The 7th respondent is the
Secretary of the Club and he has been joined as an accused,
because he was in charge of the management of the club. The
kitty which the sixth respondent held was Rs. 74.62nP and a
further sum of Rs. 218/- was recovered from the table of the
6th respondent. 66 counters were on the table and some more
money was found with the persons who were indulging in the
game. The evidence of the Circle Inspector is that he had
received credible information that the premises of the club
were being used as a common gambling house and he raided it
and found evidence, because instruments of gambling were
found and the persons present were actually gambling. The
Magistrate convicted all the seven respondents and sentenced
them to various fines, with imprisonment in default. The
respondents
389
then filed an. application for revision before the Sessions
Judge, Secunderabad who made a reference to the High Court
under s. 438 of the Code of Criminal Procedure, recommending
the quashing of the conviction and the setting aside of the
sentences. This recommendation was accepted by the learned
single Judge in the High Court and the present appeal is
brought against his judgment by special leave granted by
this Court.
The Hyderabad Act follows in outline the provisions of
the Public Gambling Act, 1867 in force in India. Section 3
of the Act defines a “common gambling house”. The
translation of the Urdu text placed before us was found to
be inaccurate but we have compared the Urdu definition with
the definition of “common gaming house” in the Public
Gambling Act, and we are of opinion that represents a truer
translation than the one included in the official
publication. We accordingly quote. the definition from the
Indian Act, adding thereto the explanation which is not to
be found in the Indian Act. “Common gambling-house”
according to the definition means:
“any house, walled enclosure, 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 house,
enclosure; room or place, whether by way of
charge for the use of the instruments of
gaming, or of the house enclosure, room or
place, or otherwise howsoever?’
Explanation :”The word ‘house’ includes
a tent and all enclosed space.”
The contention in regard to this definition is that the
evidence clearly disclosed that the club was being used as a
common gambling house and therefore the penal provisions of
the Act were clearly attracted. We are concerned
additionally with several sections from the Gambling Act
which need to be seen. Section 4, which follows in outline
the corresponding section in the Public Gambling Act,
provides for penalty for an owner, occupier or person using
common gambling house and includes within the reach of the
section persons who have the care or the management of or in
any manner assist in conducting, the business of. any such
house, enclosure or open space. The members of the club
which is a (“Members’ Club”) would prima facie be liable but
as they are not before us, we need not consider the question
whether they should also have been arraigned in the case or
not. The Secretary and the Treasurer, who were respectively
accused Nos. 7 and 6 were so arraigned as it was thought
they came within the reach of s. 4 because they were in the
care and management of the club itself. Then there is s. 6
which again is similar
390
but not entirely similar to s. 5 of the Public Gambling Act.
This provides for entry for search and entry by police. It
lays down as follows :–
“If the District Magistrate or the
Magistrate of the First Class or the District
Superintendent of Police or the Inspector of
Police in the city and the suburbs of
Hyderabad, on credible information and after
such enquiries as he may deem necessary, has
reason to believe that any house or premises
or enclosure or an open space is used as a
common gambling house he shall be empowered to
enter or authorise any police officer, not
below the rank of a Sub-Inspector to enter
with such assistance as may be found
necessary, by night or by day, and by force,
if necessary, any such house or premises or
enclosure or open space, and it shall be
proper to arrest all persons whom the said
Magistrate or the Superintendent or Inspector
of Police finds therein or to allow the Police
Officer so authorised to arrest such persons
whether or not they are actually gambling.
and
Seize or authorise the said Officer to
seize all instruments of gambling and all
moneys and securities for money and valuable
articles, reasonably suspected to have been
used or intended to be used for the purpose of
gambling and which are found therein, and
search or authorise such Police Officers to
search all parts of the house or premises or
enclosure or open space, which he or such
officer shall have so entered when he or such
officer has reason to believe that any
instruments of gambling are concealed therein
and also the persons whom he or such officer
had so arrested and seize and keep in his
possession all such instruments of gambling as
are found in the search.
Explanation: …..”
Here the Circle Inspector was an officer authorised to enter
upon and search the premises of the club and therefore his
action was fully covered by the section. He effected the
arrest of all the persons who were present(respondents
1-6) and added to the number the Secretary who although
not present on the premises at the time was, according to
him, responsible for the offence under s. 4 of the Oct.
Session 7 of the Act then provides for a presumption which
the law allows to be drawn from the finding of cards, etc.
in a house in which a search according to the terms of s. 6
of the Act as taken place. That section reads as follows :–
391
“When any cards or dice or table or
other instruments or means of gambling have
been found in any house or premises or
enclosure or open space entered or searched,
in accordance with the provision of s. 6 or
have been found with any of the persons
therein, it shall be evidence, until the
country is proved, that such house, premises
or enclosure or open space is used as a common
gambling house and the persons found therein
were present for the purpose of gambling
although no play was actually witnessed by the
Magistrate or the police officer or an3′ of
his assistants.”
This section gives rise to a presumption from the fact of a
search under s. 6 after credible information that persons
present in the house are there for the purpose of gambling
even though no play may be actually witnessed by the
raiding party. In the present case on the appearance of the
police, it is admitted, the players stopped their play and
the arrests were promptly made of all the persons present
round the table who had cards, counters and the money with
them.
The learned Magistrate who tried the case was of the opinion
that the offence was proved, ‘because of the presumption
since it was not successfully repelled on behalf of the
present respondents. In the order making the reference the
learned Sessions Judge made two points: He first referred to
s. 14 of the Act which provides that nothing done under the
Act shall apply to any game of mere skill wherever played
and he was of opinion on the authority of two cases decided
by the Madras High Court and one of the Andhra High Court
that the, game of Rummy was a name of skill and therefore
the Act did not apply to the case. He also held that there
was no profit made by the members of the club from the
charge for the use of cards and the, furniture and the room
in the club by the players and therefore the definition of
common gambling house’ did not apply to the case. In
accepting the reference, the learned single Judge in the
High Court did not express any opinion upon the question
whether the game of Rummy can be described as a game of
skill. _ He relied upon ‘the second part of the proposition
which the Sessions Judge had suggested as the ground for
acquitting the accused. namely, that the club was not making
a profit but was only charging something as a service charge
and to this we shall now refer.
Mr. Ram Reddy relies, firstly, upon the definition of
‘common gambling house’ in the Hyderabad Act and contends
that in this case there is ample evidence to prove that the
club was making a profit or gain from the persons who play
Rummy on its premises, pointing out at the same time that
the charge was But upon strangers to ‘the club as well as
members. He also submits
392
that the presumption which arises under s. 7 of the Gambling
Act has not been successfully repelled and on the other hand
it has been confirmed by the making of this charge by the
club.
In support of his case that the club was making a profit
or gain from the game of Rummy he draws attention to four
matters which in his opinion bring this club within the said
definition. The first was a charge of 5 points per game
which according to him was being levied on each game of
Rummy. He next points out that playing cards were supplied
to the players by the club at an extra charge of Rs. 3/- and
there was a sitting fee of Re. 1/- per person from those who
joined the game. He points out further that if the game
continued beyond a certain time in the night, a late fee was
also levied. In addition, he says, that non-members were
also required to pay and, therefore, this club must fall
within the definition of a common gambling house. In
support he relies upon a decision of the Madras High Court
1n re Somasundaratn Chettiar(1)
In our opinion the points made by Mr. Ram Reddy do not
prove this club to be a common gambling house. The
presumption under s. 7, even if it arises in this case, is
successfully repelled by the evidence which has been led,
even on the side of the prosecution.
To begin with, there is nothing to show that a fee of 5
points per game was being charged. Only the Sub-Inspector
(P.W. 6) deposes to it but there is nothing to show what his
source of information was. At the time the game was going
on, he was not present and when he arrived on the scene, the
game had stopped. The account-books of the club do not show
any such levy from the persons and in the absence of any
entry, we cannot hold this fact to be sufficiently proved.
As regards the extra.charge for playing cards we may say
that clubs usually make an extra charge for anything they
Supply to their members because it is with the extra
payments that the management of the club is carried on and
other amenities are provided. It is commonly known that
accounts have to be kept, stocks have to be purchased and
maintained for the use of the members and service is given.
Money is thus collected and there is expenditure for running
of each section of the establishment. Just as some fee is
charged for the games of billiards, ping-pong, tennis, etc,
an extra charge for playing cards (unless it is extravagant)
would not show that the club was making a profit or gain so
as to render the club into a common gambling house.
Similarly, a late fee is generally charged from members who
use the club premises beyond the scheduled time. This is
necessary, because the servants of the
(1) A I R. 1948 Mad. 264.
393
club who attend on the members have to be paid extra
remuneration by way of overtime and expenditure on light and
other amenities has to be incurred beyond the club hours.
Such a charge is usual in most of the clubs and we can take
judicial notice of the fact.
This leaves over for consideration only the sitting fee
as it is called. In this connection, the account books of
the club have been produced before us and they show that a
fee of 50 paise is charged per person playing in the card
room. This to our opinion is not such a heavy charge in a
Members’ Club as to be described as an attempt to make a
profit or gain for the club. Of course, if it had been
proved that 5 points per game were charged, that might have
been considered as an illegal charge sufficient to bring
the club within the definition. As we have already pointed
out, the levy of that charge has not been proved. The other
charges which the club made do not establish that this was a
common gambling house within the definition.
It is submitted by Mr. Ram Reddy that non-members also
play and further that the club provides no other amenities
besides making it possible for members and non-members to
play the game of Rummy on the premises. We think that the
evidence on this part is not quite satisfactory. No doubt
one witness has stated that chess is also played, but that
does not prove that amenities other than card games are
catered for by the club. But on the other side also there is
no definite evidence that there is no other amenity in this
club but the playing of card games. In these circumstances,
to hold that the club does not provide other amenities is
tantamount to making a conjecture which is not permissible
in a criminal case.
We are also not satisfied that the protection of s. 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 chance. Rummy, on the other
hand, requires certain amount of skill because the fall of
the cards has to be memorised and the building 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 in all
games in which cards are shuffled and dealt out, there is an
element of chance, because the distribution of the I
cards is not according to any set pattern but is dependent
upon how the cards find their place in the shuffled pack.
From this alone it cannot be said that Rummy is a game of
chance and there
394
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 may be brought home. In this case, these elements
are missing and therefore we think that the High Court was
right in accepting the reference it did.
The appeal fails and is dismissed.
Y.P. Appeal dismissed.
395