1. The case of the prosecution was that three persons Devi Pershad, Mohanlal and Shivalal wagered in the business of Sengdana (groundnuts) on various dates towards the end of 1945. The prosecution contended that through certain brokers they contracted to deal in differences, that is to say, that they fixed some dates in future and undertook payment of the difference in price between the price on the date they bet and the stipulated date. On these allegations it was stated by the prosecution that the aforesaid three persons were liable to be prosecuted for the offence under Section 13 of the Public Gambling Act 2 of 1305 F.
2. After the accused were summoned, the lower Court recorded their statements under Section 211, Hyderabad Criminal Procedure Code. The accused denied the guilt. The Vakil for the accused contended that the acts imputed to the accused even if they be proved, could never constitute an offence under Section 13 of the Public Gambling Act. The lower Court heard the arguments of the parties and disagreed with the Vakil for the accused and came to the conclusion that it was necessary that further evidence had to be taken, before arriving at the proper result. It is against this order that three revisions have been filed in this Court.
3. We heard the. Advocate for the petitioners in support of the petitions and the public prosecutor on the other side. The Act aims principally at preventing gambling in a public place and the keeping of common gambling houses. It has also to be observed the Gambling Act being one of a penal character, must be construed strictly. The language of the Act must not be unduly strained so as to cover a case which would not directly come under any provision of the Act. Gambling is not an offence 'per se' unless it is carried on in a common gaming house or in a public street, place or thoroughfare.
4. The necessary ingredients to constitute an offence under Section 13 of the Gambling Act II of 1305F., are that a person charged should be found to be playing for money, or other valuable thing, with the following things: (1) Cards; (2) dice and (3) counters or other instruments of gaming used in gaming. This alone is not enough but it must also be shown that he was playing in any public street or thoroughfare.
5. Even according to the case of the prosecution the acts attributed to the accused are only that they dealt in what are known as 'Teji Mandi transactions.' In the case of Shobhagmal Gianmal v. Mukundchand Balia 53 Ind App 241 (PC), where 'their Lordships of the Privy Council in dealing with the question whether Teji Mandi transactions were wagering contracts, which could not be enforced under Section 30 of the Indian Contract Act, held on a consideration of the nature of such contracts that there was no element of wagering in such transactions as between the parties to them and that either party stood to win from or lose to the other according to fluctuations of prices or any other event-the very essence of wager being thus absent.
6. The offence under Section 13 of the Hyderabad Gambling Act would consist in playing for money or other valuable things with cards, dice, counters or other instruments of gaming used in gaming in any public street, place or thoroughfare. In this case the contention of the prosecution is that the offence of gaming consisted in the Teji Mandi transactions which were entered in the account books kept with accused where these transactions took place, and it was urged that these books came within the definition of 'instruments' of gaming. If the Teji Mandi transactions cannot be regarded as wagers, or could not constitute gaming, as observed by us above, then the books cannot be called instruments of gaming. This, apart, books of accounts in which bets are regarded by their very nature are not, in our view, instruments of gaming under Section 13.
7. The other essential ingredient necessary for the offence is that the game should be played in a public place, street or thoroughfare. Public place is one where the public can have free access. It should be a place of public resort. As to whether a particular place is a 'public place' within the meaning of the Gambling Act would depend on the character of the place and the use to which it is put. If the place is not open to the public such as a private house, or a private garden it cannot be called a public place. It would riot cease to be a private house or a private garden, simply because the passers-by could stop and witness the gambling. Gambling in a vacant private land which could be easily reached from the public road by outsiders going on the road can never be regarded as public place for that place is not open to the public nor could they use it. The mere visibility of the land or house to the public would not make it a public place. In each case whether the place is a public place or not must depend upon the facts proved. The allegation of the prosecution is that Teji Mandi transactions were entered into in the house of one of the accused Devi Pershad No. 1, from whom the books were recovered, which cannot be deemed to be a public place within the meaning of Section 13, as the public have no access to it nor is it open to them. It is, therefore, manifest, that in order to support a conviction under Section 13 of the Hyderabad Gambling Act, all the ingredients specified therein must be alleged and substantiated. The prosecution story does not, in our view, disclose any of the ingredients constituting the said offence.
8. We, therefore, hold that no case has been made out for a prosecution under Section 13 of the Gambling Act. These three revisions filed by the three petitioners are allowed, and thp nrdsr of theJower Court is set aside.