J.N. Takru, J.
1. This criminal reference has been made by the learned Sessions Judge of Mathura in the following circumstances.
2. According to the prosecution, Nur Singh Dutt. Head Constable, and the other prosecution witnesses saw Shyam Lal accused writing down some numbers on a piece of paper and Har Prasad accused offering two annas on number 98, When the latter saw the police they took to their heels. They were, however, arrested and from the possession of Shyam Lal two parchas with some numbers written on them, two pieces of cardboard, a pencil, and Rs. 2.25 were recovered, while from the possession of Har Prasad eight annas were recovered. On these allegations Shvam Lal and Har Prasad were prosecuted under Section 13 of the Gambling Act and were convicted and sentenced to a fine of Rs. 150 in default to one month's R. I. each. As the case was tried summarily Shyam Lal went up in revision to the Sessions Judge, Mathura, who feeling satisfied that the examination of the accused under Section 342 Cr. P. C. was not conducted in accordance with law and had resulted in prejudice to him made the aforesaid reference to this Court.
3. After perusing the judgment and the explanation of the learned Magistrate I am satisfied that apart from the ground on which this reference has been made the conviction and sentence of Shyam Lal cannot be defended on merits either, as all that the prosecution evidence shows is that he was making preparation for gambling, the preparation consisting in Har Prasad offering twoannas on No. 98 to the applicant. But themere offer and acceptance of the bet assuming that the two annas were givenas such would not show that Shyam Laland Har Prasad were gambling, thoughas stated above, it might show thatthey were making preparation forgambling. The stage of gamblingwould have been reached wheneither party did something which wouldhave decided whether the bet was wonby Shyam Lal or Har Prasad and stillthen the parties can only be said to havemade preparation for gambling. Section 13 of the Gambling Act however, does notmake preparation for gambling an offence. As such Shyam Lal could not beconvicted thereunder. The result therefore is that the conviction and sentenceof Shyam Lal cannot be sustained. I accordingly accept the reference not onlyon the ground on which it was made bythe learned Sessions Judge but also onthe additional ground mentioned above,quash the judgment and order of thelearned Magistrate referred to above andwhile ordering the acquittal of ShyamLal direct that the fine if paid shall berefunded to him.