All you should know about the Delhi Public Gambling Act

                                   All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

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There is nothing else that brings (us) poverty like gambling which causes many a misery and destroys (one's) reputation.

 

To start with, we may note that penalties are provided in this Act for different kind of offences under Sections-3, 4, 7 and 12.

 

2. Primarily, we are required to deal with offences under section-3, 4 & 12 which prescribe imprisonment for a term extending 6 months, 3 months & 3 months respectively. The first issue which may arise here is : the nature of offences. Whether they are bailable or non-bailable. Whether they are cognizable or non-cognizable. For this, we have to go through Cr.PC. In vies of Section-4(2) Cr.PC, offences punishable under other enactments have to be dealt with in the same manner as provided in the Cr.PC subject of course to any contrary procedure prescribed by any other enactment.

 

  1. The Delhi Public Gambling Act does not talk anything about the nature of offence, therefore we have to rely upon the provisions of Cr.PC. Section-2(a) talks about bailable and non-bailable offences and indicates that if the offence is shown as bailable in First Schedule appended thereto or made bailable by any other law, such offence shall be bailable. The Delhi Public Gambling Act has not commented upon bailability of the offence. Therefore, we may look at First schedule of Cr.PC. Part-II of first schedule deals with offences under other enactments. A bare look at entry-3 in Part-II goes to show that offences punishable under the Delhi Public Gambling Act are bailable as they are punishable with an imprisonment for less than three years.

 

  1. Similarly, for deciding the cognizability of offence, we have to look into the provisions of Cr.PC. Section-2(c) talks about cognizable offence and indicates that if a police officer may arrest any person without warrant in accordance with first schedule or any other law, such offence shall be cognizable. Part-II of first schedule deals with offences under other enactments. Entry-3 of Part-II clearly goes to show that the offences under

 

All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

 

Delhi Public Gambling Act should be treated as non-cognizable as they are punishable with an imprisonment for less than three years. Meaning thereby that if we go by First Schedule only, the offence under Delhi Public Gambling Act have to be treated as non-cognizable.

 

  1. However, Section-2(c) of Cr.PC also indicates the other alternative option in which an offence may be treated as cognizable i.e. if a police officer may arrest without warrant under any other law. We have to ascertain whether the Delhi Public Gambling Act gives any power to a police officer to arrest any person without warrant or not.

 

  1. Section-5 provides some answers. It reads to the extent necessary as under:

"If the District Magistrate or any other officer invested with the full powers of a Magistrate of the first class, or the Superintendent of Police upon credible information, and after such enquiry as he may think necessary, has reason to believe that any house, room, tent, enclosure, space, vehicle, vessel or place, is used as a common gaming-house,

 

he may either himself enter, or by his warrant authorise any officer of police, not below the rank of a sub-Inspector, to enter with such assistance as may be found necessary, by sight or by day and by force, if necessary, any such house, room, tent, enclosure, space, vehicle, vessel or place,

 

and may either himself take into custody or, authorise such officer to take into custody, all persons whom he or such officer finds therein whether or not then actually gambling;........”

 

2.5. Clearly, this section empowers a Superintendent of Police to arrest without any warrant. No doubt, all police officers are not empowered to arrest without warrant but this can not change the nature of offence. Section-2(c) Cr.PC nowhere requires that unless every police officer is empowered to arrest without warrant, the offence shall not be treated as cognizable. Hon'ble High Court of Delhi has provided a clear answer in Delhi Administration vs Parkash Chand And Ors 3 (1967) DLT 383 followed by State Of Gujarat & Ors vs Lal Singh Kishan Singh AIR 1981 SC 368.

 

 

All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

 

  1. Here, we may further note that in view of Section-146 of Delhi Police Act, 1978 the Commissioner of Police is also District Magistrate for the purpose of Delhi Public Gambling Act and he may delegate his function to Addl. Commissioner, Deputy Commissioner, Addl. Deputy Commissioner. And in view of Section-150 of Delhi Police Act, Superintendent of Police means the Deputy Commissioner.

 

  1. As such, offences punishable under Section-3 & 4 shall be cognizable and bailable. Since, Section-12 also provides power to police officers to arrest without warrant, the same shall be cognizable and bailable. However, offence under Section-7 relates to refusal to give information about name & address. It is only a non-cognizable & bailable offence.

 

  1. It needs to be noted that offences under Section-3, 4 & 12 provide for fine of Rs.1,000/- in addition to the imprisonment.

 

  1. One thing is also required to be noted. If a police officer is empowered to arrest any person without warrant only when the offence is committed in his presence, such offences can not be treated as cognizable unless otherwise provided by statutory prescription. Several offences under Motor Vehicles Act are clear examples of this situation. (a detailed discussion has been made by Hon'ble Bombay High Court in Shri Sandeep Indravadan Sagar vs State of Maharashtra and others decided on 10.01.2013).

 

  1. Some expressions have been defined by the Act. Gaming has been given an inclusive meaning but actually has not been defined. It only indicates that Gaming includes wagering or betting but does not include lottery. We may understood this term in more elaborate manner by going through United State of Gwalior, Indore and Malwa (Madhya Bharat) Gambling Act which provides an explanation to the definition of gaming as under:

 

“Any transaction by which a person in any capacity whatever employs another in any capacity whatever, or engages for another in any capacity whatever, to wager or bet with another person, and the collection or soliciting of bets, receipt or distribution of winnings or prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution, shall be deemed to be Gaming.”

 

 

All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

 

4.1. Further, Madras City Police Act, 1888 also has an explanation appended to the definition of gaming in the following manner:

 

“For the purpose of this definition, wagering or betting shall be deemed to comprise the collection or soliciting or bets, the receipt or distribution of winnings of prizes, in money or otherwise, in respect of any wager or bet, or any act which is intended to aid or facilitate or wagering or betting or such collections, soliciting, receipt or distribution".

 

4.2. No doubt, the said Acts have nothing to do with the Delhi Public Gambling Act. However, the above said explanations provide valuable assistance in understanding the word “Gaming”.

 

5. Section-5 & 6 of the Act are inter-connected. If a police officer has found any requisite material during the search conducted under Section-5 in the manner prescribed therein, the same has to be treated as evidence for the fact that such place was used as a common gaming-house and that persons found therein were present there for the purpose of gaming.

 

5.1. Section-6 has used the expression “shall” creating a presumption of law which has to stand until the contrary is proved. While dealing with similar provision in Section-7 of Bombay Prevention of Gambling Act, a three judges bench of Hon'ble Supreme Court made the following observation in Jagat Singh Kishor Singh Darbar vs The State Of Gujarat

 

AIR 1979 SC 857:

 

 

“It is not disputed that instruments of gaming were seized from the premises in question in both the appeals. That circumstances, according to the section, "shall be evidence, until the contrary is proved, that such house, room or place is used as a comon gaming-house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen .. " . The profit or gain mentioned in clause (ii) of the definition and

 

 

All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

 

also the other requirements of that clause are a matter of peremptory presumption which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case here. Admittedly, there is no evidence in rebuttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the appellants.”

 

 

6. It will however be interesting to go through section-13 which exempts games of mere skill.

 

  1. In Dr. K.R. Lakshmanan vs State Of Tamil Nadu And Anr AIR 1996 SC 1153, Hon'ble Supreme Court defined the expression “mere skill” to mean substantial degree or preponderance of skill.

 

  1. In The Director General Of Police vs Mahalakshmi Cultural decided on 22.03.2012, Hon'ble Madras High Court held the play of Rummy with stakes as illegal.

 

  1. However, the order of Madras High Court was challenged. Hon'ble Supreme Court in Mahalakshmi Cultural Assn. Vs Dir. Inspector Gen. of Police SLP(civil) 15371/2012 on 18.08.2015 passed the following order:

 

“Under the circumstances, Dr. A.M. Singhvi, learned senior counsel appearing for the petitioner says that since the prosecution was not based on the petitioner or any of its members playing rummy (13 cards), he would like to withdraw the writ petition that was filed before the Madras High Court being WP No.21620 of 2011. We permit him to withdraw the writ petition. Since the writ petition is dismissed as withdrawn, the observations made by the High Court in the writ petition or in the writ appeal filed by the State do not survive.”

 

 

 

All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

 

  1. It so happend in Delhi that two parties decided to make a reference under Order-36 of CPC to a district court and the then ADJ, Patiala House, Delhi on 17.09.2012 in M/s Gaussian Network Pvt. Ltd. Vs Ms. Monica Lakhanpal declared that even the games of skill are illegal if they are played online.

 

  1. The said judgment was however challenged before the Hon'ble High Court of Delhi in CRP No.-119/2012 and was finally disposed of in following manner:

 

“Be that as it may, Dr. Abhishek Manu Singhavi, learned senior counsel for the petitioner submits that he does not wish any academic question to be answered and at this stage prays that permission may be granted to the parties to withdraw their reference which they had made before the Trial Judge. Permission is accordingly granted to the petitioner to withdraw this revision petition i.e. C.R.P. No.119/2012 titled as “Gaussian Network Pvt. Ltd. Vs. Monica Lakhanpal & Anr”. Accordingly, the observations made by the Trial Judge in its order dated 17.09.2012 i.e. in Suit No. 32/2012 titled as “Gaussian Network Pvt. Ltd. Vs. Monica Lakhanpal & Anr” no longer survive”.

 

6.6. It would be further interesting to note that in response to some RTI application, the Government of Nagaland, Department of Justice and Law provided an answer that the games of poker, rummy and bridge involve skill and are not gambling as per the provisions of the Gambling Act, 1867

 

 

7. If owner uses his house as a common gaming house or permits (with knowledge) the same to be used as a common gaming house, he will be liable under Section-3 of Delhi Public Gambling Act. Some other persons are also liable under Section-3. Or if anyone is found in such gaming house in respect of gaming, he shall be liable under Section-4 of the Act. Section-12 applies to places where general public has access.

 

  1. If owner gives his house to his friend while going out of station for vacation and that

 

 

All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

 

friend uses such house as common gaming house, the owner can not be made liable under Section-3 for lack of Will and/or knowledge.

 

8. In terms of Section-8 & 12 of the Act, on passing a judgment for conviction, Magistrate may make an order to destroy the instruments of gaming.

 

  1. As per Section-17 fine imposed under this Act is to be recovered in the manner provided by CrPC. And as per Section-16 some portion of the fine may be paid to the informer.

 

  1. Section-9 clarifies that to convict a person (respecting common gaming house) it would not be necessary to prove that any person found playing at any game was playing for any money, wager or stake.

 

  1. Section-10 is akin to compelling power of court to direct any person to give evidence irrespective of possible incrimination. The section may however offend Article-20 of the Constitutiion as a bare reading of Section-4(2) shows that there is a mandatory presumption of law that every person found in gaming house has to be presumed to be present there for the purpose of gaming and in a way, he would be an accused in the case. The Section may be justified only when the same is made applicable to a person falling within Section-11 which is in some way related to the concept of pardon and give immunity from prosecution to a person for disclosing truth in evidence.

 

  1. Section-15 provides for enhanced punishment in case a person again commits offence punishable u/s- 3 or 4 of the Act.

 

  1. Offences are triable by a Magistrate. Since this Act is applicable only to Delhi where Metropolitan Magistrates are to be found, it is clear that any offence under this Act can be tried by a Metropolitan Magistrate.

 

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All you should know about the Delhi Public Gambling Act: by Rakesh Kumar Singh

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