Ghose, J.:— The Petitioner in this case has been convicted of the offence of playing for money with an instrument of gaming in a public place under sec. 11 of Act II of 1867 of the Bengal Government. This Court granted a rule to show cause why the conviction and sentence should not be set aside on the grounds (1) that the act imputed to the Petitioner is not gaming within the meaning of the law, and (2) that the place of occurrence is not a public place within the meaning of the Act.
The facts in the case are simple. The accused is the proprietor of a machine for which there is no particular name, unless it is “little horses,” but which is of a well-known kind. It is not necessary to describe the machine in detail, but it is sufficient to say that by turning a handle in the side of a box, six metal figures of horses and riders are made to move in contention circles round the top of the box. They stop gradually as the impetus given by throwing the handle dies away, and that horse wins which having a flag in front of him, is nearest to it when all the horses have stopped. The public were allowed to stake money on any of the six horses before the machine was set in motion. The accused apparently pocketted all the stakes returning four times their stakes to persons who had staked their money on the winning horse.
The place where the offence in the present case is alleged to have been committed is described by Earn Nath Ghose, the husband of the woman to whom it belongs, as the compound of the Sanjoy press. It is an open space of land situated one cubit from the bazar, its boundaries are not stated, but it appears not to be divided by any wall or fence from the bazar. Ram Nath tells us that the place is a public place though he also states that “no one has had access to the place except with my permission.” He also tells us that the accused played morning and evening and that 40 or 50 bettors came and played. Two other witnesses, one of them a constable, described the place where the instrument was used as the bazar. Earn Nath did not say whether he ever gave or refused permission to any one to come on his compound, nor is there any evidence that any one asked for his permission to do so, or that any one was prevented from doing so by him.
The two questions we have to decide on these facts are: (1) Is the machine we have described an instrument of gaming? (2) Was the place where it was used a public place?
Taking the second point first a general description of a public place is to be found in R. v. Willard decided under 14 and 16 Vict., c. 100, sec. 29, dealing with indecent exposure of the person where Grove, J., says: “A public place is a place where the public go, no matter whether they have a right to go or not.” A very similar ruling is to be found in R. v. Appleton decided under 36 and 37 Vict., c. 38, sec. 3, a similar section to the present where a field maintained for the benefit of the colliers of a colliery company, to which strangers were admitted, was held to be a public place. The Indian authorities on the subject seem to be fewer than might be expected, but in R. v. Sri Lal it was held that a chabutra which was private property adjoining a public thoroughfare and was not a place to which the public bad a right of access nor a place to which the public were used to have access, nor were ever permitted to have access, was not a public place. This Court has considered the meaning of the term public place as used in this section in the case of Khudi Sheikh & Ors.… v. The King-Emperor…Opposite Party. and two unreported cases, References Nos. 24 and 25 of 1894. In the first-mentioned case the place where the gambling took place was situated in the compound of a thakurbari surrounded by a pucca wall, and was held not to be a public place. In the latter a verandah alongside a public road was held not to be a public place, though it was possible to enter it from the street. All these cases, seem to us to be consistent with one another as also consistent with the idea that the place may be a public place though it is the private property of an individual. Where a place is in any way dedicated to the use of the public, it is of course a public place. But where it is owned privately, and no such dedication has taken place, the question whether it is a public place seems to depend on the character of the place itself and the use actually made of it. Where, as in the present case, the place is an open piece of ground, the presumption that it is a public place is naturally more easily created than where, as in the cases we have referred to, it is a building, or is surrounded by a wall. We therefore hold that the act complained of was done in a public place.
We have next to consider whether the machine used in the present case was an instrument of gaming. We cannot conceive that it could be any thing else. In the first place we have no doubt, differing therein from the learned Magistrate, that the event betted on is a matter of mere chance and not at all of skill. For one thing as the accused worked the machine, if the result was not a matter of chance, the machine was an instrument of cheating, of which there is no evidence and which we ought not to assume. But the result to be obtained by turning the handle is, apart from fraud, plainly too much a matter of chance for any question of skill to come in.
We have been much pressed with the case of R. v. Narotamdas Motiram where rain-betting was held not to be gaming because there was no contest and consequently no game. The event betted on was the amount of rain that fell during the monsoon, in other words an operation of nature and not a contest among men. We fail to see how this ruling can support the argument advanced by the Petitioner. In fact in our judgment it seems to be an authority to the contrary effect. The progress of metal figures round the top of a box is certainly not an operation of nature. Taken by itself it is perhaps hardly a contest, but when money is staked on the various figures it would seem, according to a passage in the judgment of Scott, J., where he refers to roulette, that a contest arises between the keeper of the machine and the person who stakes the money.
We find therefore that the machine is an instrument of gaming and as we find both points against the Petitioner we hold that this rule must be discharged.
Stephen, J.:— The judgment just delivered sufficiently supports the conclusion at which this Court has arrived. But I feel myself bound to express doubts which I feel as to the soundness of the judgment in the case of R. v. Narotamdas Motiram to which we have referred. The matter is of some importance because for reasons we have indicated the English law on the subject of gaming does not seem to be applicable to India, and the Bombay case is, I believe, the only one decided in India which deals with the meaning of gaming. The Gambling Act is concerned only with gaming, and has nothing to do with betting or wagering, which may be considered synonymous terms. What is the difference between gaming and betting 1 The Bombay case apparently regards gaming as betting on the result of a game which is also a contest. The distinction between the two things is based on the scientific or historical meanings of gaming as given in standard works to which the very high authority of Murray's Dictionary may now be added. But it seems to me to raise difficult questions as to the meaning of “game” or “contest,” which can only be decided by a highly artificial use of language. I believe that a mere satisfactory distinction, that is, one that is plainer and more easy of application, is to be found by considering the popular rather than the scientific use of the word. I suggest that the difference between gaming and betting depends on the nature of the event on which the bet is made. If the event is brought about solely for the purpose of being betted about, betting on it is gaming, otherwise it is not. Ordinary marine insurance is merely betting against the happening of certain events. In practice it is very difficult to distinguish it, from a legal point of view, from betting on the result of a cricket match or horse race. A certain kind of marine insurance is in fact a well-known form of what is popularly described as gambling. On the other hand, dicing, to take an old fashioned example, is a wholly insignificant act if it is not done for the purpose of betting on the result. If I may descend to modern examples of those games of cards to whose names we are accustomed in legal literature, I should say that playing at poker where stakes are essential is gaming, and that playing at bridge where stakes though usual, are not essentials, is not. If horse racing degenerates into nothing but an occasion for betting it becomes gaming and the race-horses probably become instruments of gaming. Apart from legislation rain-gambling is gaming if a complete apparatus is used for the purpose, otherwise it is not. This distinction seems to me to be plain and easy of application. It is impossible to attach legal meanings to common words which are in complete accordance with their common use, where that use is indefinite especially when the word is generally used to express disapprobation or the reverse. But I believe the meaning I propose to attach to the term gaming to be as near to its popular use as it is possible to go.
N.G
Rule discharged.