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Emperor Vs. Manilal Mangalji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 250 of 1915
Judge
Reported in(1915)17BOMLR1080
AppellantEmperor
RespondentManilal Mangalji
Excerpt:
bombay prevention of gambling act (bom. act iv of 1887), section 3-instrument of gaming-book recording bets is an instrument of gaming.;a book used for recording entries of the bets made by those frequenting a place, is an instrument of gaming within the meaning of section 3 of the bombay prevention of gambling act, 1887. - .....the only point of law urged by the learned counsel for the applicant is that a certain green book, in which were recorded entries of the bets made by those frequenting the room managed by the applicant, is not an instrument of gaming within the definition of that term in section 3 of the act. unfortunately, however, for this argument, a bench of this court has decided against it in the case of emperor v. lakhamsi (1904) 6 bom. l.r. 1091 which followed the decision in king-emperor v. tribhowandas (1902) 4 bom. l.r. 271; i.l.r. 26 bom. 533 where the judgment of mr. justice fulton was presumably specially relied upon. we are bound by the decision in emperor v. lakhamsi unless we are prepared to refer the matter to a full bench. that i am not prepared to do, though i recognize.....
Judgment:

Batchelor, J.

1. In this case the applicant, Manilal Mangalji, has been convicted by the learned Third Presidency Magistrate of managing or assisting in conducting the business of a common gaming house under Section 4 of the Bombay Prevention of Gambling Act IV of 1887, and has been sentenced to one month's rigorous imprisonment.

2. The only point of law urged by the learned counsel for the applicant is that a certain green book, in which were recorded entries of the bets made by those frequenting the room managed by the applicant, is not an instrument of gaming within the definition of that term in Section 3 of the Act. Unfortunately, however, for this argument, a Bench of this Court has decided against it in the case of Emperor v. Lakhamsi (1904) 6 Bom. L.R. 1091 which followed the decision in King-Emperor v. Tribhowandas (1902) 4 Bom. L.R. 271; I.L.R. 26 Bom. 533 where the judgment of Mr. Justice Fulton was presumably specially relied upon. We are bound by the decision in Emperor v. Lakhamsi unless we are prepared to refer the matter to a Full Bench. That I am not prepared to do, though I recognize that in view of the divergence of judicial opinion to which this topic has given rise, my own view must be expressed with diffidence. Speaking for myself, then, I agree with the decision in Emperor v. Lakhamsi. It is to be observed that the definition in Section 3 of the Act is an inclusive definition, the words reading that the 'expression 'instruments of gaming' includes any article used as a subject or means of gaming.' The whole argument has turned-and I think rightly turned-upon the correct signification of the word 'means' in this definition. Now as there is nothing to the contrary in the Act, it is clear that the word 'means,' which is a popular word and not a term of art, must be construed in its popular sense, that is to say, in the sense in which the word would have been understood amongst ordinary Englishmen the day after the statute was passed: see Reg. v. Commissioners of Income Tax (1888) 22 Q.B.D. 296 which was affirmed in Commissioners for Special Purposes of Income Tax v. Pemsel [1891] A.C. 531 and The Fusilier(1864) 34 L.J.P.M 25, where Dr. Lushington said 'one of the rules of construing statutes, and a wise rule too, is, that they shall be construed uti loquitur vulgus, that is, according to the common under standing and acceptation of the terms.' So far as I am able to understand the current usuage of this ordinary word 'means,' I should say, having regard particularly to the inclusive character of the definition which we are interpreting, that it must include a thing or article, such as this green book, which was specially contrived and used to promote and facilitate the wagering. I say it was specially contrived and used for this purpose, because in fact it contains nothing but pencilled memoranda of the wagers made. Mr. Jinnah has contended that the wagering might conceivably have been carried on without the assistance of a book to record the wagers, and that no doubt is so. But the question is, when a book is in fact used so as to record the wagers, what is the position of that book? Is it or is it not a 'means' of wagering within the definition In our present case, as it appears to me, the reasonable inference is that it was found by those engaged in this wagering that the wagering could not conveniently be conducted otherwise than with or, I think I may say, by means of this green book; in other words, it was found desirable to maintain this book as a method or, I think, a means of carrying on the wagering which without it could not have been carried on without great or insuperable difficulties.

3. For these reasons, though I am sensible of the difficulty created by the divergent view expressed by other single Judges in Queen-Empress v. Kanji Bhimji I.L.R. (1892) Bom. 184 and Emperor v. Jesang Motilal : (1915)17BOMLR600 , it is my opinion that the case of Emperor v. Lakhamsi (1904) 6 Bom. L.R. 1091 was correctly decided, and that we ought now to follow it and hold that the green book in the case before us was a 'means' or 'instrument' of gaming within the definition in the Act.

4. That being so, the conviction in this case must be affirmed; and though Mr. Jinnah has addressed us on the question of sentence, I see no reason whatever to suppose that the sentence in this case was one whit too severe.

5. I would, therefore, discharge the rule.

Hayward, J.

6. The applicant used the green book now before us in his room kept for registering Teji Mandi wagers on the results of the cotton sales in Liverpool, and he has, in consequence, been convicted of keeping a common gaming house under Section 4 of the Bombay Prevention of Gambling Act. It has not been disputed on behalf of the applicant that he so used the green book. But it has been contended that the green book so used was not an instrument of gaming and that, therefore, the applicant was not legally guilty of keeping a common gaming house under the Act.

7. Now it appears that the original legislative prohibition was directed merely against gaming, in the ordinary sense of the word, that is to say, against playing for stakes or betting at sports or pastimes as was pointed out in the rain betting case of 1889, Queen-Empress v. Narottamdas Motiram I.L.R. (1889) Bom. 601. Thereafter the prohibition was extended to include betting on other events under the term 'wagering' by the insertion of these definitions: 'In this Act the expression 'instruments of gaming' includes any article used as a subject or means of gaming'; and 'in this Act the word 'gaming', whenever it occurs, shall include wagering' by the amending Act of 1890. The question, therefore, which we have to decide is, whether the green book before us was used as a 'means' of 'gaming'; or rather to substitute the word which we must substitute under the definition as a 'means' of 'wagering'. It seems to me that the green book, would, in ordinary language, be said to have been used as a 'means' of carrying on this particular form of wagering. It is difficult to believe in the circumstances disclosed that any persons would, without some such record, have been induced to enter into these wagering transactions. Whether that is a correct interpretation or not, has, however, been laid open to doubt by the dicta on former occasions of certain of the Judges of the Benches of this Court. Those dicta, therefore, require careful consideration. In Queen. Empress v. Kanji Bhimji I.L.R. (1892) Bom. 184, decided soon after the amendment Act, while Parsons J. held that it was a question of fact for determination in each case whether account books were instruments of wagering; Telang J. doubted whether they could ever be instruments of wagering. He considered that they were too remotely connected with wagering and were merely helps to the preservation of evidence relating to the completed wagering transaction. In the Opium Sales Case, King-Emperor v. Tribhowandas (1902) 4 Bom. L.R. 271 : I.L.R. 26 Bom. 533, while Fulton J. was of opinion that the account books used to record the wagers were, on that account alone, used as a 'means' of wagering; Candy J. held that these were so used as they were especially contrived and were not merely helps to the preservation of evidence of the wagering transactions. In the Teji Mandi case, Emperor v. Lakhamsi (1904) 6 Bom. L.R. 1091, both Judges concurred that even slips of paper used to record the wagers were, no less than account books, used as a 'means' of wagering. But in the most recent case, Emperor v. Jesang Motilal : (1915)17BOMLR600 , Beaman J. doubted whether such slips of papers or account books could ever be instruments of wagering. It appears, however, that Macleod J. was not prepared to share his doubts and those doubts were not acted upon, so that there was no decision upon the matter by the Bench.

8. It appears, therefore, that the interpretation which has commended itself to us as the plain meaning of the language used is the interpretation approved by the only previous decision directly in point which can be regarded as a binding decision of a Bench of this Court. We ought, therefore, to discharge this rule and confirm the conviction. The sentence of one month's rigorous imprisonment is, further, not unduly severe in the case of a keeper of a common gaming house, the suppression of which is the special object of these Acts of the Legislature.


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