1. These appeals have given me considerable difficulty with regard to my decision. Appellant 1, Mr. J.B. Beattie, was convicted by the Officiating Fourth Presidency Magistrate under Section 44, Calcutta Police Act, for owning, occupying and having the use of the premises used as a common gaming house. Under this conviction he was sentenced to pay a fine of Rs. 500 with an alternative of three months' rigorous imprisonment if the fine was not paid. Appellant 2, Mr. A.W. Smedley, who is said to have been the manager of Mr. Beattie's business, was convicted also under the same section but under another part of it for managing or having the care of this firm and he was further convicted under Section 45, Police Act, for being engaged in gambling on the premises.
2. Under the first conviction he was sentenced to a fine of Rs. 400 with an alternative on non-payment of three months' rigorous imprisonment, but no separate sentence was passed under the second conviction for contravention of Section 45. As to appellants 3 and 4, who were said to be employees of the firm owned by Mr. Beattie, they were both sentenced under Section 45, appellant 3 was fined Rs. 100 with one month's alternative rigorous imprisonment and appellant 4 was fined Rs. 200 with an alternative sentence of one month's rigorous imprisonment. The case appears to have been tried in rather a slapdash fashion. Not a large volume of evidence was produced for the prosecution and no evidence was produced for the defence, although three written statements were put in to represent before the Court the views of the accused persons. But the material contained in these written statements is not, of course, strictly evidence under the criminal procedure and the ordinary rules of evidence required in criminal Courts. The Calcutta Police Act and those sections which it contains dealing with betting and gambling are not examples, in my opinion, of very satisfactory statutory draftsmanship. The pivot of the whole of the prosecution case is as to what is the meaning in law of the expression 'common gaming house.' It is defined in Section 3 of the Act and that definition is a very comprehensive one. It is in these terms:
Common gaming house' means any house, room, tent or walled enclosure, or space, or vehicle or any place whatever, in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, space, vehicle or place, whether by way of charge for the use of such house, room, tent, enclosure, space, vehicle, place or instruments or otherwise howsoever.
3. There has been a conflict of judicial opinion as to how the expression 'otherwise howsoever' must be interpreted. The views of the Judges of this Court, as I understand, are that such premises are not strictly within the meaning of the language of the Act unless some fixed charge or profit accrues regularly to the person who is occupying or keeping the premises quite apart from any fluctuating profit which may occur from time to time between the gamblers themselves as a result of the gambling.
4. But the Bombay High Court has taken a more extended view of what this definition means in a precisely similar definition which is contained in the Bombay Prevention of Gambling Act of 1887. There the Judges in the Court of appeal came to the conclusion that the expression 'otherwise howsoever' did not suggest any limitation at all and although they did not seem to have considered the views of any other High Court but that of Allahabad, which Court, I may add, seems to have taken in one decision the same view as the Judges of this Court, they came to the conclusion that the proper construction was to include all profits or gains which might probably result from the use of gaming instruments or gambling transactions which have been used or carried on in the premises. To turn to the particular convictions here, appellant 1 as I have already observed, was convicted under Section 44 as the owner and occupier. I am not at all satisfied from the meagre evidence before the learned Magistrate that there was any material he could have considered which proved conclusively that Mr. Beattie did own or occupy these premises. Certain correspondence and books were seized by the police at the time that the place was searched.
5. But they did not clearly indicate what the position of Mr. Beattie was. The office seems to have been occupied by a firm, J.B. Beattie & Co., and unless it could strictly be proved that Mr. Beattie himself was occupying or owning the premises or business, I am unable to say that he has been rightly convicted. In the case of Mr. Smedley, two convictions were registered against him, one under Section 44 and the other under Section 45. The conviction under Section 44 was said to have been because he was engaged in the management of the business and the conviction under Section 45 because he was actually found gambling. There is evidence to show that Mr. Smedley, in my opinion, was acting in a managerial capacity and therefore if we were adopting the view which the Bombay High Court had taken as to the meaning of a 'gaming-house,' it might be that he was rightly convicted on the evidence, although it cannot be said that the evidence was of a very satisfactory kind. I was in two minds as to whether contrary to the opinion of my learned brother, I should not be right, in the case of Smedley, in ordering a re-trial. But when I am told that in fact, Mr. Smedley is not at the moment in this country and it is uncertain when he will return, and having regard to the view taken by this Court as to the meaning of what this gaming-house definition actually in law comprises, I altered my mind as to the re-trial and I am prepared to allow this appeal on the 'gaming-house' point, that is, on the point of law. As to his conviction under Section 45 and as to the convictions under Section 45 of appellants 3 and 4, I am bound to say that even if Section 45 is read in conjunction with the statutory presumption contained in Section 47, I am by no means satisfied that these three appellants would come within the mischief of Sections 45 and 47 read together, quite apart from the gaming-house point in their favour.
6. It does some pity to my mind that this whole question, of whether a credit book-making business, because this is a firm which carries on its transactions on the strictly credit basis, as I understand from the exhibits, is legal or illegal should not have been cleared up long ago. I imagine that this business has been flourishing for sometime and whereas I do consider myself more or less bound by the considered judicial opinion of the Judges of this Court with regard to the view they have taken as to the definition of a 'common gaming house' contained in the Act, I am by no means sure if I had been sitting on one of those Benches of this Court which considered the exact legal implication of the language that I should have been able to agree with my brother Judges, I think I should have been inclined to take the wider view of the words 'otherwise howsoever' which is apparently the law on the Bombay side. But in all the circumstances of this case, I am prepared, for the reasons I have given, to allow these appeals and, accordingly, the convictions must be set aside and the fines, if already paid, must be refunded. It naturally follows that the order of the learned Magistrate with regard to the confiscation and so on will also be set aside. The whole of this order is now rendered nugatory.
7. An application for admission of this appeal was heard by me sitting singly. But in view of the importance and difficulty of the points raised I thought that it ought to be heard by a Division Bench and I directed accordingly. Subsequent to that order two other Appeals Nos. 582 and 664 Ranga Lal Son v. Emperor : AIR1936Cal788 of this year(1936) involving the same points came up for decision before a Division Bench consisting of our learned brother, R.C. Mitter, J. and myself. In the judgments delivered, we expressed our opinion as to the meaning of the words common gaming-house' and also the meaning and effect of Section 47, Calcutta Police Act. I do not desire to add to anything which was said on that occasion. But the result is that, if the written statements filed by the four appellants contained a true statement of fact, then according to that decision and another preceding decision which we followed, the premises which are the subject matter of this case are not a common gaming-house.
8. Our difficulty in dealing with the particular facts of this appeal is largely due to the unsatisfactory manner in which the case was investigated, put before the Court and tried. The position with regard to Mr. Beattie is really very simple. The learned Magistrate does not rely upon any direct evidence to found the conviction under Section 44. He does it under the provisions of Section 47. Now the result of a search in this case is that there was evidence before the Magistrate which would entitle him as a Court of fact to find that these premises were in fact a common gaming house; but it would not entitle him, to presume anything whatsoever with regard to the guilt of a person charged with a specific offence under Section 44. His order is therefore based upon nothing. Section 44 covers a multitude of sins and there is nothing in the judgment of the learned Magistrate which enables us to discover of what precise offence Mr. Beattie was found guilty. It had to be conceded in the course of the argument that there was no evidence that Mr. Beattie committed any offence under this section. An attempt was made to support the order upon the written statement filed by this appellant. I am bound to say that I have never heard of an accused person being convicted of offence on no evidence at all, simply because he chooses to file a written statement denying his guilt. I entirely agree with my learned brother that there was no evidence on which the conviction of this appellant could be based.
9. I have very little to add with regard to the conviction of Mr. Smedley. What evidence there was would merely have the effect of showing that, in accordance with the decisions of this Court, these premises were not a common gaming house and therefore even if he was the manager of the business, he was not guilty of any offence. But here again the learned Magistrate has not given us any assistance, because instead of dealing with the evidence on the point he has convicted him under Section 47 which affords us no help so far as the conviction under Section 44 is concerned. I understood the learned Deputy Legal Remembrancer did not press the convictions under Section 45 in view of the findings of the learned Magistrate. In view of Section 47 there was evidence which would have entitled him to convict of this offence any person found on the premises, that is to say, appellants 2, 3 and 4, but inasmuch as he has come to a finding of fact that these appellants were managing or helping in the conduct of business, it is quite obvious that they were not there for the purpose of gaming and that this conviction cannot be supported.