1. This is a reference made by the learned Sessions Judge of Rangpur inviting us to set aside the conviction and sentence of fine passed under Section 11 of the Bengal Public Gambling Act 2, of 1867 by the Deputy Magistrate. The matter concerns the game known as ring game, and the learned Judge has referred the case to us holding on the authority of Hari Singh v. Emperor . [1907] 6 C.L.J 708 that this particular game has been held to be within the exception in S. 10, of the Act, that is to say, that it is a game of mere skill and not a game of chance.
2. In the first place we desire to point out that the mere fact that the Judge speaks of this game as ring-game is no evidence whatever that it is the same game as was before this Court in Hari Singh's case. The report which we have before us is not the authorized report in the Indian Law Reports and the original judgment has not been laid before us. The facts as stated in the report do not show that as in this case the table was slanting, nor do they give us the size of the pegs or the rings.
3. The facts found in this case by the lower Court include the size of the pegs and the rings upon the board, and it is found that the particular position in which the board in this case was slanted rendered it a matter almost of mere chance whether any ring alighted on the peg or encircled the coin. On the findings of fact therefore alone in this case it would be impossible for us to interfere.
4. But we desire to point out although under the circumstances it is unnecessary to make any reference to the Full Bench that our view of the law is somewhat different to that enunciated by Fletcher, J., in Hari Singh's case. It is there stated that if it is a game of skill it is not an offence under the Gambling Act; if it is a game of mere chance it is. Now we turn to the exception created by S. 10, Act 2 of 1867, and that section says: “Nothing in the foregoing provisions of this Act contained shall be held to apply to billiards, whist or any other game of mere skill wherever played.” The criterion is not whether it is a game of mere chance, but whether it is a game of mere skill, and we may point out that the word “mere” is used in legal language in its meaning derived from its latin origin and imports the meaning “pure skill.” It is impossible to say that any form of the ring game can be a game of pure skill, and for this reason we could not have followed the reasonings in Hari Singh's case had it been necessary for us to consider it as a point of law.
5. There is a further point which we wish to set out and which was not apparently discussed in Hari Singh's case, and that is that the games of skill spoken of in S. 10 obviously refer to a game where there are two parties pitting their skill against each other. In billiards two men play against each other for money and in whist one pair of persons play as partners against the other pair pitting their skill in a fair contest against the skill of the others. But in this case the owner of the site where this gambling is carried on does not pit his skill at all against anybody. He does not play but takes the money of the public for a consideration which on the facts found in this case amounts to nothing at all; it being found that no body ever wins or has the slightest chance of winning except by pure accident. If the matter therefore was res integra we should be prepared to hold as a matter of law that neither this ring game as described in this case, nor any other ring game kept for profit of a man who does not play himself, can fall within the exception in S. 10 of the Act.
6. But there is still a further point which has not been dealt with in the previous decision, and that is that the onus to show that any offence falls within a general exception of the Act is upon the defence, and it is for the defence to show in order touring the case under S. 10, Act 2 of 1867 that the game played is a game of mere skill. This certainly has not been shown in this case, nor does the learned Judge who made the reference pretend that it has. But it is unnecessary for us to go further into the question of law, inasmuch as in this case at any rate the findings of fact conclude the matter, it being found as a fact that this particular game was not a game of mere skill. It cannot be Slid to fall within the exception.
7. The conviction and sentence must therefore be upheld and the papers returned to the learned Sessions Judge.
V.B/R.K
8. Conviction and sentence upheld.