1. In this case three accused persons Saligram Khetry, N.H. Balakani and R.N. Swinton were charged under Section 44, Calcutta Police Act (Bengal Act 4 of 1866). Khetry was the proprietor of a show known as The Grand Variety Show and Balakani and Swinton were his assistants who helped him in running that show. On 14th January 1932 an application was made to the police authorities by the manager of that show for permission to carry it on at 124, Bow Bazar Street, for a period of three months and to conduct various side shows and games of skill including a game known as the 'dart game.' The permission asked for was granted by the police on 19th January 1932. But on 16th February 1932 an order was issued by the police authorities countermanding the sanction as regards the particular game known as the dart game on the ground that it did not belong to the classes of game which are predominantly games of skill. This order was duly communicated by a police officer on the following day to the accused Saligram Khetry at about three o'clock in the afternoon. Another police officer was sent out at 5 p.m. to ascertain whether the game was still being carried on and upon his reporting that it was still in operation, another police officer who was the first witness for the prosecution in the Court below, went to the show ground and found that the game was in progress in one of the stalls and he took possession of the apparatus and arrested all the persons found in the stall. As the outcome of that the three persons, whose names I have given, were charged under Section 44 as already stated. That section provides as follows:
Whoever, being the owner, occupier or having the use of any house, room or place, opens, keeps or uses the same as a common gaming house; and whoever, being the owner or occupier of any house or room, knowingly and wilfully permits the same to be opened, kept or used by any other person as a common gaming-house; and whoever has the care or management of or in any manner assists in conducting the business of any house, room or place so opened, kept or used; and whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, room or place, shall be liable, on summary conviction before a Magistrate to a fine not exceeding Rs. 500 or to imprisonment, with or without hard labour, for any term not exceeding three months.
2. The learned Chief Presidency Magistrate found all the accused persons guilty under Section 44. In making the order he said:
It is not disputed that Saligram is the manager and the other two accused persons are his assistants. The accused Saligram is fined Rs. 50 in default two weeks rigorous imprisonment. The accused Balakani and Swinton are fined Rs. 5 each, in default five days rigorous imprisonment each. The instruments of gaming and the money that have been seized are confiscated under Section 48 of the said Act.
3. The only question before the learned Chief Presidency Magistrate was whether or not the accused could avail themselves of the exception provided in Section 50-A, Calcutta Police Act. That section was inserted into the Calcutta. Police Act by the Bengal Public Gambling (Amending) Act No. 4 of 1913. Section 50-A reads as follows: 'Nothing in Section 44 to Section 50 shall apply to any game of mere skill, wherever played.' The learned Magistrate in his judgment said
The only point for determination is whether this dart game constituted gaming or not. It is not in dispute that the game was being played.
4. The learned Magistrate rightly took the view that the other conditions named in Section 44 were undoubtedly present. The ground on which this matter came before this Court in revision, is stated in the petition in these words:
For that in view of the reasons given by the learned Magistrate himself, the dart game ought to have been held to be a game of mere skill and not one of chance.
5. As described by the learned Magistrate the game was played in the following manner: 'A square wooden board which has about a hundred squares, coloured red, blue, white and green, is fixed up above seven feet from the ground; the player stands twelve feet from this target; between him and the target is a table on which are placed card-board squares bearing coloured discs; the player chooses his colour and puts a rupee on it; he is given four darts; if the player places all four darts on squares of the pre-selected colour on the target he is paid four rupees; apparently he gets a rupee for every successful throw; total failure means loss of the stake.' The learned Magistrate then proceeded as follows:
The defence has called a witness who demonstrated in Court that he is an expert at this game; he was successful with two throws out of three; on a second attempt both throws were successful. It is urged that this is a game in which skill preponderates over chance and therefore it is not gaming. It is also urged that the game was allowed by the police and therefore no offence was committed.
6. The finding of the learned Magistrate was in these terms:
On a careful consideration of the nature of the game and the manner of play I am satisfied that it is a form of gaming.
7. Then he says:
The manner in which the game is played shows definitely that the element of chance preponderates. The ordinary person who has had no previous practice can only hit the mark, (that is, one of the numerous coloured squares according to the colour chosen) by sheer fluke or accident. The large number of squares of each colour, the small size of each of the squares, the distance at which the player stands from the target, are all factors which render a successful throw extremely unlikely and a matter of pure chance. The fact that some people can acquire or have acquired unusual skill does not alter the nature of the game so far as the general public is concerned.
8. The learned Magistrate then said:
It has been laid down in Emperor v. Arjun Singh : AIR1929Cal769 , that it is not necessary to consider whether the element of skill preponderates over the element of chance. All that is necessary to determine is whether the game is one of pure skill. It cannot for a moment be imagined that the dart game is one of pure skill. It is therefore a form of gaming. If it were a game of pure skill it would not be necessary to have so many squares of the same colour, in different parts of the target. If this were a game in which the player selected the very square on which he was going to throw his dart, it would be a game of pure skill.
9. For those reasons the learned Magistrate came to the finding that this dart game was not a game of mere skill', the words used in Section 50-A, Calcutta Police Act, and therefore constituted an illegal game so as to bring the persons running it within the purview of Section 44. The only point I have to decide is whether or not I am in agreement with the view taken by the learned Magistrate. As I have indicated the learned Magistrate seems to have placed a considerable or at any rate some reliance upon the decision in Emperor v. Arjun Singh : AIR1929Cal769 . That decision was given by Mukerji, J., in the case of Emperor v. Arjun Singh : AIR1929Cal769 . In the course of his judgment at p. 523 of the report the learned Judge said:
The question as to whether a game is one of pure chance or one in which the element of skill preponderates considerations which were thought important under the Act as it stood before are no longer pertinent. We have to see whether the game is covered by what is meant by gaming; if it is, it is hit by the Act, unless it is a game of mere skill.
10. Broadly speaking, with that proposition I agree. But I am bound to say that it seems a little difficult to think of any game which is absolutely devoid of all possibilities of some fortuitious element entering into the playing of it. The element of chance may be small or even infinitesimal, but in practically in all pastimes which can rightly be described as games even though they are, undoubtedly, games of skill, some element of chance might creep in. I make these observations for the purpose of saying that in my opinion, it is very difficult to read the word 'mere' as if it were synonymons with the word 'pure' in the strict and scientific sense of the latter word. I am therefore of opinion that one must give a reasonable interpretation to the expression 'mere skill' and should come to the conclusion that a game of 'mere skill' should be taken to mean one in which a person playing it, as far as possible in any human affairs, has complete control over the result which he sets out to attain, provided he is sufficiently expert in performance. I agree with Mukerji, J., that having regard to the terms of Section 50-A the question is no longer one as to whether the element of skill or chance predominates. The real question as I have said, is whether the result sought to be obtained can be achieved by the person seeking to attain it if he has sufficient expertness to bring it about. It is obvious that in a large number of games there is definitely an element of chance. Games which are dependent upon the throw of dice or the turn of wheel or the fall of cards, necessarily have a decided element in the playing of them which is altogether outside the control of the person playing.
11. In the present case it is argued on behalf of the Crown that the likelihood of the player affixing the dart on a square of the particular colour nominated by him was so remote that it became a matter of pure luck, whether the dart struck a particular colour or not. It is argued because there are a number of squares of the same colour, the player might by chance hit any individual square of the colour selected by him, although he had in fact aimed at another square of the same colour; and it is therefore said that the difficulty of hitting the precise target selected is so great that success must necessarily be dependent on what is ordinarily called a fluke. In this connexion I may observe that no one would dispute that the game, of billiards is a game of the highest possible skill and yet even in this game if a player sets out to put a ball into a particular pocket and he may by a fluke put that ball into some other pocket but he nevertheless scores his point. It seems to me therefore that any argument which is based upon the proposition, the greater the difficulty the greater the element of chance, is wholly unsound, one may equally well say, the greater the difficulty the higher the skill.
12. In this particular case there can be no doubt, I think, that the likelihood of success is well within the control of any particular player, provided he possesses the necessary skill. No doubt success would demand a high degree of skill or at any rate what is generally described as knack which is only another way of saying that the person playing must have an aptitude and must have a certain amount of experience and expertness in the play of the particular game. Here it is clearly possible for a person with sufficient expertness to hit any particular square or at any rate a line of squares. I say line of squares because the colours were arranged in lines drawn diagonally on the board which constituted the target. There is nothing in the playing of the game which could not be foreseen and anticipated. The players in the game so far as any outside circumstance or fortuitous factors are concerned, are masters of the situation. If one seeks a criterion upon the question whether the game is one of mere skill or not, I think one can only say that the real test is: Is there any external thing or fortuitous circumstance which may interpose between the action of the player and the result to be attained, and are the media, or instruments of the operation all ascertained the moment the game begins. As I have already said it is undoubtedly the case that in this particular game there was a possibility and indeed probability that a player might be unwillingly successful by hitting a line of the colour selected other than the particular line which he intended or was supposed to aim at. But on the other hand as I have already said it was undoubtedly possible for the persons with the requisite skill to hit the actual point on the target selected by him beforehand. Accordingly giving the words 'mere skill', a reasonable construction and not interpreting the qualifying adjective, the word mere' as if it meant pure in the sense in which that word might be used in a scientific experiment. I come to the conclusion that this case falls within the proviso of Section 50-A.
13. The English authorities are not of very much assistance in this country because undoubtedly the legislature here by the use of the word 'mere' have sought to go even further than the English legislation relevant to a matter of this kind. As stated by Mukerji, J., (ubi supra) I am of opinion, that so far as this country is concerned, one can no longer apply the criterion of whether skill or chance is the predominant or governing element. In order to escape conviction under Section 44, it must be shown by the defence that to all intents and purposes on a broad and reasonable view of the matter the game was one of skill and nothing else. The question of whether or not the game is one of mere skill for the purpose of invoking the protection of Section 50-A is a question of fact. This Rule is made absolute. The conviction and sentence are set aside and the fine if paid will be refunded.