State of Andhra Pradesh Vs. K.
Satyanarayana & Ors  INSC 266 (22 November 1967)
22/11/1967 HIDAYATULLAH, M.
CITATION: 1968 AIR 825 1968 SCR (2) 387
Hyderabad Gambling Act (2 of 1305F), ss. 3, 7
and 14--Extra charges levied by club for playing cards, and playing beyond
prescribed hour-Common gambling house if constituted--Rummy, if a game of
The police raided the premises of a club and
found respondents 1--5 playing "Rummy" for stakes, counters and money
on the table and playing-cards with the players.
Respondent 6 the Treasurer of the Club, was
holding the stake money. Respondent 7---the Secretary of the club was not
present then. All the respondents were convicted by the Trial Court, but the
conviction was set aside by the High Court. In appeal to this Court, the
appellant-State contended that this club was a common gambling house as. a fee
of 5 points per game was charged by the club, the playing-cards. were supplied
at an extra charge of Rs. 3.
there was a sitting fee of Re. 1 per person
who joined the game, and if the game continued beyond a certain time a late fee
was levied; and further that. the presumption under s. 7 of the Gambling Act
had not been repelled but on the other hand it had been confirmed by the making
of this charge by the club. Dismissing the appeal HELD: This club was not a
common gambling house.
The presumption under s. 7 even if it arises
in this case, was successfully repelled by the evidence which had been led.
[392 D] Just as some fee is charged for the games of billiards, ping-pong,
tennis etc. an extra charge for playing cards (unless it is extravagant) would
not show that the club was making profit or gain so as to render the club into
a common gambling house. Similarly, a late fee is generally charged from
members who use the club premises beyond the scheduled time This is necessary
because the servants of the club who attend on the members have to be paid
extra remuneration by way of overtime, and expenditure on light and other
amenities has to be incurred beyond club house.
The accounts showed that the sitting fee of
50 raise was charged per person. This was not such a heavy charge in a Members'
Club as to be described as an attempt to make a profit or gain for club. Of
course, if it had been proved that 5 points per game was charged, that might
have been considered as an illegal charge sufficient to bring the club within
the definition. [392 G--393 C] The protection of s. 14 was not available in
Rummy is not a game entirely of chance like
the 'three-card' game. It requires certain amount of skill because the fall of
the cards has to be memories and the building up of Rummy requires considerable
skill in holding and discarding cards.
It is mainly and preponderantly a game of
skill. The chance in Rummy is of the same character as the chance in a deal at
a game of bridge. In fact in all games in which cards are shuffled and dealt
out, there is an element of chance, because the distribution of the cards is
not according to any set pattern but is dependent upon how the cards find their
place in the shuffled pack. From this alone it cannot be said that Rummy is a
game of chance and there is no.
skill involved in it of course, if there is
evidence of gambling in some other way or 387 388 the owner of the house or
club is making a prOfit or gain from the game of Rummy or any other game played
for stakes, the offence may be brought home. [393 F--394 B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 40 of 1965.
Appeal by special leave from the judgment and
order dated August 4, 1964 of the Andhra Pradesh High Court in Criminal
Revision Case No- 479 of 1964.
P. Ram Reddy and B. Parthasarathy, for the
A.S.R. Chari, K. Rajendra Chaudhuri and K.R.
Chaudhuri, for the respondents.
The Judgment of the Court was delivered by
Hidayatullah, J. The State of Andhra Pradesh appeals by special leave against
the judgment of the High Court of Andhra Pradesh in which, accepting a
reference by the Sessions Judge, the conviction of the respondents under ss.
4 and 5 of the Hyderabad Gambling Act (2 of
1305F) ordered by the 5th City Magistrate at Secunderabad has been set aside.
The short question in this case is whether
the premises of a Club known as the "Crescent Recreation Club"
situated in Secunderabad were being used as a common gambling house and whether
the several respondents who were present at the time of the raid by the police
could be said to be gambling therein. The facts of the case are as follows:--
On May 4, 1963, the police headed by Circle Inspector Krishnaswami raided the
premises of the club. They found respondents 1-5 playing a card game known as
"Rummy" for stakes. At the time of the raid, there were some counters
on the table as also money and of course the playing-cards with the players.
Respondent No. 6, the Treasurer of the Club, was also present and was holding
the stake money which is popularly known as "kitty". The 7th
respondent is the Secretary of the Club and he has been joined as an accused,
because he was in charge of the management of the club. The kitty which the
sixth respondent held was Rs. 74.62nP and a further sum of Rs. 218/- was
recovered from the table of the 6th respondent. 66 counters were on the table
and some more money was found with the persons who were indulging in the game.
The evidence of the Circle Inspector is that he had received credible
information that the premises of the club were being used as a common gambling
house and he raided it and found evidence, because instruments of gambling were
found and the persons present were actually gambling. The Magistrate convicted
all the seven respondents and sentenced them to various fines, with
imprisonment in default. The respondents 389 then filed an. application for
revision before the Sessions Judge, Secunderabad who made a reference to the
High Court under s. 438 of the Code of Criminal Procedure, recommending the
quashing of the conviction and the setting aside of the sentences. This
recommendation was accepted by the learned single Judge in the High Court and
the present appeal is brought against his judgment by special leave granted by
The Hyderabad Act follows in outline the
provisions of the Public Gambling Act, 1867 in force in India. Section 3 of the
Act defines a "common gambling house". The translation of the Urdu
text placed before us was found to be inaccurate but we have compared the Urdu
definition with the definition of "common gaming house" in the Public
Gambling Act, and we are of opinion that represents a truer translation than
the one included in the official publication. We accordingly quote. the
definition from the Indian Act, adding thereto the explanation which is not to
be found in the Indian Act. "Common gambling-house" according to the
"any house, walled enclosure, room or
place in which cards, dice, tables or other instruments of gaming are kept or
used for the profit or gain of the person owning, occupying, using or keeping
such house, enclosure; room or place, whether by way of charge for the use of
the instruments of gaming, or of the house enclosure, room or place, or
otherwise howsoever?' Explanation :"The word 'house' includes a tent and
all enclosed space." The contention in regard to this definition is that
the evidence clearly disclosed that the club was being used as a common
gambling house and therefore the penal provisions of the Act were clearly
attracted. We are concerned additionally with several sections from the
Gambling Act which need to be seen. Section 4, which follows in outline the
corresponding section in the Public Gambling Act, provides for penalty for an
owner, occupier or person using common gambling house and includes within the
reach of the section persons who have the care or the management of or in any
manner assist in conducting, the business of. any such house, enclosure or open
space. The members of the club which is a ("Members' Club") would
prima facie be liable but as they are not before us, we need not consider the
question whether they should also have been arraigned in the case or not. The
Secretary and the Treasurer, who were respectively accused Nos. 7 and 6 were so
arraigned as it was thought they came within the reach of s. 4 because they
were in the care and management of the club itself. Then there is s. 6 which
again is similar 390 but not entirely similar to s. 5 of the Public Gambling
This provides for entry for search and entry
by police. It lays down as follows :-- "If the District Magistrate or the
Magistrate of the First Class or the District Superintendent of Police or the
Inspector of Police in the city and the suburbs of Hyderabad, on credible
information and after such enquiries as he may deem necessary, has reason to
believe that any house or premises or enclosure or an open space is used as a
common gambling house he shall be empowered to enter or authorise any police
officer, not below the rank of a Sub-Inspector to enter with such assistance as
may be found necessary, by night or by day, and by force, if necessary, any
such house or premises or enclosure or open space, and it shall be proper to
arrest all persons whom the said Magistrate or the Superintendent or Inspector
of Police finds therein or to allow the Police Officer so authorised to arrest
such persons whether or not they are actually gambling.
and Seize or authorise the said Officer to
seize all instruments of gambling and all moneys and securities for money and
valuable articles, reasonably suspected to have been used or intended to be
used for the purpose of gambling and which are found therein, and search or
authorise such Police Officers to search all parts of the house or premises or
enclosure or open space, which he or such officer shall have so entered when he
or such officer has reason to believe that any instruments of gambling are
concealed therein and also the persons whom he or such officer had so arrested
and seize and keep in his possession all such instruments of gambling as are
found in the search.
Explanation: ....." Here the Circle
Inspector was an officer authorised to enter upon and search the premises of
the club and therefore his action was fully covered by the section. He effected
the arrest of all the persons who were present(respondents 1-6) and added to
the number the Secretary who although not present on the premises at the time
was, according to him, responsible for the offence under s. 4 of the Oct.
Session 7 of the Act then provides for a
presumption which the law allows to be drawn from the finding of cards, etc.
in a house in which a search according to the
terms of s. 6 of the Act as taken place. That section reads as follows :-- 391
"When any cards or dice or table or other instruments or means of gambling
have been found in any house or premises or enclosure or open space entered or
searched, in accordance with the provision of s. 6 or have been found with any
of the persons therein, it shall be evidence, until the country is proved, that
such house, premises or enclosure or open space is used as a common gambling
house and the persons found therein were present for the purpose of gambling
although no play was actually witnessed by the Magistrate or the police officer
or an3' of his assistants." This section gives rise to a presumption from
the fact of a search under s. 6 after credible information that persons present
in the house are there for the purpose of gambling even though no play may be
actually witnessed by the raiding party. In the present case on the appearance
of the police, it is admitted, the players stopped their play and the arrests
were promptly made of all the persons present round the table who had cards,
counters and the money with them.
The learned Magistrate who tried the case was
of the opinion that the offence was proved, 'because of the presumption since
it was not successfully repelled on behalf of the present respondents. In the
order making the reference the learned Sessions Judge made two points: He first
referred to s. 14 of the Act which provides that nothing done under the Act
shall apply to any game of mere skill wherever played and he was of opinion on
the authority of two cases decided by the Madras High Court and one of the
Andhra High Court that the, game of Rummy was a name of skill and therefore the
Act did not apply to the case. He also held that there was no profit made by
the members of the club from the charge for the use of cards and the, furniture
and the room in the club by the players and therefore the definition of common
gambling house' did not apply to the case. In accepting the reference, the
learned single Judge in the High Court did not express any opinion upon the
question whether the game of Rummy can be described as a game of skill. _ He
relied upon 'the second part of the proposition which the Sessions Judge had
suggested as the ground for acquitting the accused. namely, that the club was
not making a profit but was only charging something as a service charge and to
this we shall now refer.
Mr. Ram Reddy relies, firstly, upon the
definition of 'common gambling house' in the Hyderabad Act and contends that in
this case there is ample evidence to prove that the club was making a profit or
gain from the persons who play Rummy on its premises, pointing out at the same
time that the charge was But upon strangers to 'the club as well as members. He
also submits 392 that the presumption which arises under s. 7 of the Gambling
Act has not been successfully repelled and on the other hand it has been
confirmed by the making of this charge by the club.
In support of his case that the club was
making a profit or gain from the game of Rummy he draws attention to four
matters which in his opinion bring this club within the said definition. The
first was a charge of 5 points per game which according to him was being levied
on each game of Rummy. He next points out that playing cards were supplied to
the players by the club at an extra charge of Rs. 3/- and there was a sitting
fee of Re. 1/- per person from those who joined the game. He points out further
that if the game continued beyond a certain time in the night, a late fee was
also levied. In addition, he says, that non-members were also required to pay
and, therefore, this club must fall within the definition of a common gambling
house. In support he relies upon a decision of the Madras High Court 1n re
Somasundaratn Chettiar(1) In our opinion the points made by Mr. Ram Reddy do
not prove this club to be a common gambling house. The presumption under s. 7,
even if it arises in this case, is successfully repelled by the evidence which
has been led, even on the side of the prosecution.
To begin with, there is nothing to show that
a fee of 5 points per game was being charged. Only the Sub-Inspector (P.W. 6)
deposes to it but there is nothing to show what his source of information was.
At the time the game was going on, he was not present and when he arrived on
the scene, the game had stopped. The account-books of the club do not show any
such levy from the persons and in the absence of any entry, we cannot hold this
fact to be sufficiently proved.
As regards the extra.charge for playing cards
we may say that clubs usually make an extra charge for anything they Supply to
their members because it is with the extra payments that the management of the
club is carried on and other amenities are provided. It is commonly known that
accounts have to be kept, stocks have to be purchased and maintained for the
use of the members and service is given.
Money is thus collected and there is
expenditure for running of each section of the establishment. Just as some fee
is charged for the games of billiards, ping-pong, tennis, etc, an extra charge
for playing cards (unless it is extravagant) would not show that the club was
making a profit or gain so as to render the club into a common gambling house.
Similarly, a late fee is generally charged
from members who use the club premises beyond the scheduled time. This is
necessary, because the servants of the (1) A I R. 1948 Mad. 264.
393 club who attend on the members have to be
paid extra remuneration by way of overtime and expenditure on light and other
amenities has to be incurred beyond the club hours.
Such a charge is usual in most of the clubs
and we can take judicial notice of the fact.
This leaves over for consideration only the
sitting fee as it is called. In this connection, the account books of the club
have been produced before us and they show that a fee of 50 paise is charged
per person playing in the card room. This to our opinion is not such a heavy
charge in a Members' Club as to be described as an attempt to make a profit or
gain for the club. Of course, if it had been proved that 5 points per game were
charged, that might have been considered as an illegal charge sufficient to
bring the club within the definition. As we have already pointed out, the levy
of that charge has not been proved. The other charges which the club made do
not establish that this was a common gambling house within the definition.
It is submitted by Mr. Ram Reddy that
non-members also play and further that the club provides no other amenities
besides making it possible for members and non-members to play the game of
Rummy on the premises. We think that the evidence on this part is not quite
satisfactory. No doubt one witness has stated that chess is also played, but
that does not prove that amenities other than card games are catered for by the
club. But on the other side also there is no definite evidence that there is no
other amenity in this club but the playing of card games. In these circumstances,
to hold that the club does not provide other amenities is tantamount to making
a conjecture which is not permissible in a criminal case.
We are also not satisfied that the protection
of s. 14 is not available in this case. The game of Rummy is not a game
entirely of chance like the 'three-card' game mentioned in the Madras case to
which we were referred. The 'three card' game which goes under different names
such as 'flush', 'brag' etc. is a game of pure chance. Rummy, on the other
hand, requires certain amount of skill because the fall of the cards has to be
memorised and the building up of Rummy requires considerable skill in holding
and discarding cards. We cannot, therefore, say that the game of Rummy is a
game of entire chance. It is mainly and preponderantly a game of skill. The
chance in Rummy is of the same character as the chance in a deal at a game of
bridge. In fact in all games in which cards are shuffled and dealt out, there
is an element of chance, because the distribution of the I cards is not
according to any set pattern but is dependent upon how the cards find their
place in the shuffled pack.
From this alone it cannot be said that Rummy
is a game of chance and there 394 is, no skill involved in it. Of course, if
there is evidence of gambling in some other way or that the owner of the house
or the club is making a profit or gain from the game of Rummy or any other game
played for stakes, the offence may be brought home. In this case, these
elements are missing and therefore we think that the High Court was right in
accepting the reference it did.
The appeal fails and is dismissed.
Y.P. Appeal dismissed.