1. This is an application for revision of the order dated 11th February 1925, of Thakur Sheora khan Singh, Magistrate, First Class, convicting the six applicants under Section 13, Act 3 of 1867 (the Public Gambling Act) and sentencing each of them to a fine of Rs. 5 or in default of payment of fine to rigorous imprisonment for a week. The case was tried summarily and the facts found by the Magistrate are that the applicants were playing a game of marbles on a public road at Mursan. Each player had contributed six pice to a pool and if a player succeeded in throwing his marble into a hole with the help of his finger he took the whole pool. The Magistrate was of opinion that the game of marbles was not a game of mere skill and that Section 13-A of the Public Gambling Act applied to a game of mare skill on it. The Magistrate was further of opinion that as the game played by the applicants was accompanied by betting and pice were actually found on the spot their act amounted to gaming in a public place. I am afraid that I am unable to agree with the view taken by the learned Deputy Magistrate. In my opinion the game of marbles is a game of mere skill and there is no more element of chance in it than there is in billiards or any other game of that kind. Bridge is commonly known as a game of skill but there is more element of chance in bridge than there is in the game of marbles. The fact that the game was played for stakes does not alter the nature of the game. The Magistrate admits in his judgment that Section 13-A of the Gambling Act excludes a game of mere skill from the purview of Section 13. I would therefore report the case under Section 438 of the Code of Criminal Procedure to the Hon'ble High Court with the recommendation that the convictions and sentences of the applicants be reversed. Before the record is submitted to the High Court the Magistrate will be asked to send an explanation if he wishes one to be sent up with the record. I cannot bring myself to believe that the law prohibits the playing of a game of kill for a stake or prize. The interpretation of the word 'mere' in Section 13-A is ingenious. In reality the word is used to exclude the element of chance.
2. This is a reference by the District Judge of Aligarh recommending that the conviction of six persons under Section 31 of the Public Gambling Act 3 of 1867 should be set aside in revision.
3. The finding was that the accused persons were playing a game with marbles on a public road, the game being one of mere skill into which chance did not enter. It is not disputed that before the amendment of the said Act by United Provinces Gambling (Amendment) Act 1 of 1917 the conviction would have been in order. That Act, however, has added a section that nothing in the Gambling Act shall apply to any game of mere skill wherever played. The result of this amendment appears to be as follows: The playing of a game of mere skill in a public place is gaming but it is not such gaming as falls within the ambit of the Public Gambling Act. The Magistrate's suggestion that the expression 'any game of mere skill' means a game in respect of which there is no wagering or betting, is untenable. Accordingly the convictions of the six persona in this case are set aside and the fines if paid will be returned to them.