1. This is a criminal appeal by the Local Government against the order of Second Class Honorary Magistrate of acquittal of a number of persons of whom four are now before us in this appeal. The learned Government Advocate has withdrawn the case for the prosecution against Chhote Lal and Bhagwati Prasad because they cannot be found, and we allow this withdrawal, and an acquittal will be entered against them. The charge against Basant Rai is under Section 3, Gambling Act, (3 of 1867), that he kept a gaming house, and the charge against Mithu Lal, Charni and Jwala Prasad is under Section 4 that they were found gambling in that gaming house. The evidence of the Sub-Inspector and two witnesses shows that acting under warrant obtained on information supplied by an informer, the Sub-Inspector during the Diwali made a raid on this house which belongs to Basant Rai. He found the six persons whom he prosecuted along with Basant Rai in a room of the house., and there were some 10 or 12 other persons who managed to escape. All these persons were gambling with cards, and two packs of cards were found, and' there was one box between the legs of Basant Rai which contained Rupees 4-7-0 in change, and another small box or tibia also placed there containing Re. 1-1-0 in change. Various sums of money were found on various accused persons, and small sums of money were placed at different places on the durrie on which gambling was being carried on. A number of cards were also lying on the durrie, being used for gambling, and the Sub-Inspector says that when he saw the accused they were actually gaming with cards. The other two search witnesses confirm this. A list was drawn up of the articles found and signed by the search witnesses. There is also the evidence of the informer that gambling was carried on at that house and that he had been present on a previous occasion and also on the day of the raid, and that he had gone to call the Sub-Inspector. The evidence of this informer is that Basant Rai took commission and that the game in question was called Flush. Basant Rai received profits or gains in two ways. One was by taking two pice commission when any person won Re. 1, and the other way was by one pice being placed on the board and one being placed as a stake while play was being made. The defence called a witness Anant Ram whose evidence was designed to show that the account of the game called Flush given by the approver was not correct, and that the game was played in some slightly different manner, and that commission was not taken when Flush was played.
2. We are not able to understand why commission cannot be taken when the game Flush is played. It appears to us that commission in the way indicated by the informer may be taken in any game which is played for money. The accused persons admitted that the game of Flush was being played, and they merely denied that Basant Rai was receiving commission. The learned Magistrate thought that it was necessary that there should be evidence, which he should accept, that commission was being taken and as the evidence on this point was not to his satisfaction he acquitted the accused. It is true that in the Public Gambling Act, 3 of 1867, and in the United Provinces Gambling Amendment Act, 1 of 1925, in the definition of a common gaming house the criterion of the instruments of gaming being kept or used for the profit or gain of the person owning, occupying, using or keeping such house, is a necessary ingredient. But it is provided by Section 6 of Act 3 of 1867, that where cards, etc. are found in any house:
it shall be evidence, until the contrary is made to appear, that such...is used as a common gaming house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Magistrate or police officer or any of his assistants.
3. This section lays down that the Court must draw a presumption from the finding of cards, etc. that the house was used as a common gaming house, and that that presumption will stand un-. til it is rebutted. In the present case the Magistrate should have drawn that; presumption, and we must also draw that presumption. There is no evidence to rebut that presumption, and therefore in the present case the evidence shows that the house was being used, as a common gaming house. The only further argument made by learned Counsel was that in the case of a Government appeal from an acquittal this. Court should only reverse the finding if it were perverse. As a matter of fact in the present case as the Magistrate has violated a rule of the Gambling Act that a certain presumption must be drawn, the finding is undoubtedly perverse; but we do not agree with the contention of the learned Counsel as to the functions of this Court in hearing a Government appeal against an acquittal. The view which counsel takes was no doubt laid down in an old ruling of 1894, Queen-Empress v. Robinson (1894) 16 All 212 where it was said that:
in considering an appeal by Government against an order of acquittal, it is not for the' High Court to say whether, if it had been trying, the case, it may not have taken a view opposed, to that of the lower Court.
4. That view was not taken in the subsequent ruling of Queen-Empress v Prag Dat (1898) 20 All 459 and that view of counsel is. not in accordance with the provisions of Section 418, Criminal P.C. Sub-section (1894) 16 All 212 lays down:
An appeal may lie on a matter of fact as well' as a matter of law, except whore the trial was by a jury, in which case the appeal shall lie on a. matter of law only.
5. This shows that an appeal lies on a matter of fact, and no limitation is laid down that this Court must find that the view of the Court which acquitted the accused was perverse. Accordingly we consider that we should convict the accused in the present case, and we therefore convict Basant Rai of an offence under Section 3 of Act 3 of 1867, and we sentence him to a fine of Rs. 25. or in default to two months' rigorous imprisonment. We sentence each of the, other respondents Mithu Lal, Charni and Jwala. Prasad under Section 4 of Act 3 of 1867, to fines of Rs. 10 each or in default to one month's rigorous imprisonment.