1. This revision is directed against the judgment of the Sessions Judge, Bellary confirming on appeal the judgment of the JMFC of that District in CC. 267 of 1975 and convicting the 14 accused for an offence punishable under Ss. 79 and 80 of the Karnataka Police Act 1663. The case against these accused was that they were found plying the game of cards known as ‘Andar Eahar’. It was stated that the place where the game was being played was Vijaya Nagar Association a recreation and free reading loom club. Accordingly, the Police Sub-Inspector of Gadiganur Police Station on receiving that information on 17-3-1975 raided the said insolation and through a chink in the building saw these accused playing the game. According to the Police Sub-Inspector, the game of cards was ‘Andar Bahar’ and as it was gambling and the said Vijaya Nagar Assn was a public place, it was concluded that gambling was going on ??? a common gaming house. During the course of the said raid accused Nos. 1 & 2 were found keeping moveables like wrist watches, ear rings etc. on pledge, and advancing money. Cards as well as stake money were also found. The necessary recovery memos were written and subsequently, the 14 accused were indicted for the offence under Ss. 79 and 80 for using the building for the purpose of a common gaming house and also for gaming or for being present for the purpose of gaming in that common gaming house.
2. The prosecution produced six witnesses of whom PW. 1 was the Superintendent of Police who gave the search warrant (Ext. P1), PWs. 2 to 4 were the panch witnesses, PW. 5 was the Police Sub-Inspector and PW. 6 was the Constable member of the raiding party.
3. The defence of the accused was ore of denial. However, the learned Magistrate believing the prosecution witnesses and considering that ‘Andar Bahar’ was a game of chance recorded a finding of conviction under Ss. 79 and 80. He awarded to accused Nos. 1 and 2, each three months simple imprisonment and a fine of Rs. 500 under S. 79 while he awarded accused No. 3 to 14 each simple imprisonment for one month and a fine of Rs. 200 under S. 80.
4. These accused came in appeal before the learned Sessions Judge but did not succeed. Their convictions and sentences were maintained, and that is how they have preferred the present revision.
5. Sri B.V Deshpande, the learned Counsel who represented the petitioners contended in the foremost that there was absolutely no evidence to prove that ‘Andar Bahar’ is a game of chance and therefore in the opinion of the learned Counsel the very fact of gaming on the part of these accused was not proved. The only two witnesses on whom reliance could be placed are, PW. 5 the Police Sub-Inspector and PW. 6, the Police Constable who accompanied the raid. These two witnesses merely stated that they found the accused playing the game of ‘Andar Bahar’ with money and cards. PW. 5 further stated that ‘Andar Bahar’ is a game of chance. But that was his own opinion. It could not be stated that PW. 5 although a Police Sub-Inspector was in any manner expert in defining the game of chance by name ‘Andar Bahar’. As such, whatever opinion he expressed was not admissible, unless he pointed out the specific steps which were taken by these accused while they played that game. Similarly the other witness PW. 6 also did not state as to how the game was to be played. The two statements merely go to point out that the accused were sitting in batches; that cards were there, that betting was going on and that money was found either on the counter or on their person; and that some articles like watches and ear rings were being received by accused Nos. 1 and 2. All that evidence decidedly never led to any necessary inference that ‘Andar Bahar’ was not a game of a skill but was a game of chance. It was either the opinion of the two witnesses or their guess work to say that ‘Andar Bahar’ was a game of chance.
6. The learned Counsel for the State brought to my notice two decisions of this very Court reported in Basha v. State of Mysore(1) and Chickarangappa v. State of Mysore(2). No doubt both these cases relate to a game of cards by name ‘Andar Bahar’. But in none of these cases this question was decided as to whether ‘Andar Bahar’ is a game of chance. That was not a plea raised by either party and hence the learned Judges were not required to decide as to the manner in which the game ‘Andar Bahar’ is played and as to whether it is a game of pure chance or a mixed game of chance and skill. In Basha's case, the question before the learned Judge was, as to whether the card game by name ‘Andar Bahar’ was played in a private house or at a public house. Since the finding was that the game was played in a private house, the accused were acquitted. It was rather assumed that ‘Andar Bahar’ even if a game of chance was played in a private house and therefore no offence was committed. The decision could not be considered, an authority to hold that the game ‘Andar bahar’ is a game of chance and not a game of skill. Similarly in the case of Chickarangappa the question before the learned Judge was, as to whether the game of ‘Andar Bahar’ was being played on a private lane which was a private street or in a public street so that S. 87 of the Act was attracted. The finding was that the game was played in a private lane and therefore the offence under S. 87 of the Act was not made out. The learned Judge has specifically observed “assuming that the accused were playing a game of chance”, they were doing so in a private house and therefore they were not committing any offence. Again, the decision is not an authority to hold that ‘Andar Bahar’ is a game of chance. Simply because the game of ‘Andar Bahar’ was the subject matter of decision in these two cases, it cannot be inferred that the game itself has assumed so much notoriety so that any presumption can be raised in favour of the prosecution that ‘Andar Bahar’ is nothing but a game of chance.
7. The learned Counsel for the petitioners relied on a decision in Thakurani Basantkumar v. Sundarkumar(3). In that case it was emphasised that it is always for the prosecution to explain how the game is played so that it could be held to be gambling for a prosecution under any Act prohibiting gambling at a public place. It was also indicated by the learned Judge that the steps taken while the game is played are required to be proved so that the game itself could be held to be gambling. In that case, the charge against the accused was that they were gambling in American futures. The prosecution did not care to explain how the bets in American futures were recorded, and the Court was not satisfied by the evidence produced as to whether any betting was being made in the shape of gambling in American futures. The finding was recorded that gambling on the part of the accused was not proved and they were acquitted of the offence. The learned Counsel takes assistance from the ratio of this ruling, inasmuch as, he contends, that unless the prosecution proved how the game ‘Andar Bahar’ is played and in what manner bettings are recorded, it could not be inferred that it was a pure and simple game of chance and not a game of skill.
8. In this view of the matter the essential ingredient of the offence was not proved. It could not be established that the petitioner-accused were playing a game of chance and one does not know how the game ‘Andar bahar’ is actually played with the assistance of cards. Even if any betting was resorted to and even if any pledge of moveables was made in support of that betting, that by itself did not convert a game of a skill into a game of chance. At any rate it was not categorically proved that ‘Andar Bahar’ is a game of chance and that these accused were playing that game. They were not covered under the definition of gaming in a common house. Since the institution where the accused were found playing the game of cards is a club, it is not unusual that cards are played in a club, and it may even be that some betting was also being done. These facts by themselves never proved that a game of chance was being played or that no skill was involved in that game so that it could be considered to be a mere game of chance. It is manifest that a game of skill would not be held to be gambling for the purpose of the Act.
9. In this view of the matter, no offence under Ss. 79 and 80 of the Karnataka Police Act 1963 was made out against the petitioners. Their conviction and sentence under those Sections could not be maintained.
10. The petition is allowed and the petitioners-accused are acquitted of the charges under Ss. 79 and 80 of the Karnataka Polica Act 1963. In case the petitioners have paid the amounts of fine, the same shall be refunded to them. The petitioners are on bail and their bonds are cancelled. The various amounts as well as the material objects recovered at the spot may be returned to the respective persons who are considered fit and legally entitled thereto by the learned Magistrate.