JUDGMENT

1. The question upon which this Rule was issued is whether a certain form of gambling, which has become well known in Calcutta as Cotton Gambling, comes within the provisions of Section 44 of Act IV of 1866, as amended by Act III of 1897 (B.C).

2. We may safely say at the outset that this is a pure question of law, and has nothing to do with the nature and effect of the particular form of gambling now under consideration, which may be, and, in our opinion, is., a most pernicious form of gambling, and yet may not be rendered penal by the Act under which these convictions have been held.

3. The offence which is created by Section 44 of the Calcutta Police Act is that of owning or keeping, or being employed in, a common gaming house, or advancing or furnishing money for the purpose of gaming with persons frequenting that house.

4. The question then that arises in this case is, whether the premises in which the defendants carried on this cotton gambling is a common gaming house" within the definition given in the Act. That definition is: The words common gaming house' shall he taken to mean any house, 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 or using such house, room or place, whether by way of charge for the use of the instruments of gaming, or of the house, room or place or otherwise." (Section 3, Act IV of 1866). By Act III (B. C.) of 1897, the following was added to the definition of "common gaming house," in Section 3 of the Calcutta Police Act, 1866 : "or in which rain-gambling, that is to say, wagering on, the occurrence or non-occurrence of rain, is carried on for the profit or gain of any such person as aforesaid"; (2) after the said ?definition was inserted: "gaming" shall include rain-gambling, ' instruments of gaming "shall include books or registers in which rain-gambling wagers are entered, all other documents containing evidence of such wagers, and anything used as a means of rain-gambling." Clearly, therefore, by this enactment, the Legislature declared that it was doubtful whether rain-gambling came within the scope of the Act before this amendment, and if it was doubted, there could be no conviction.

5. In the year 1889, the Bombay High Court had held in the case of Queen-Empress v. Narottamdas Motiram 13 B. 681 that Bombay Act IV of 1887, a similar Act to the Calcutta Police Act, did not apply to betting and that there was no law in India which made betting illegal. There is a distinction between betting and gaming, and to constitute a game there must be a contest and an active participation of certain persons is also necessary. Merely watching the rainfall was no contest and no active participation taken by the bettors. Rain betting is, therefore, not a game, and the place where it is carried on is not a "common gaming house." In the year 1904, seven years after the amending Act III of 1897 dealing with rain-gambling had been passed, this ruling was considered by a Bench of this Court in the case of Hari Singh v. Jadu Nandan Singh 8 C.W.N. 458 : 31 C. 542 : 1 Cr.L.J. 349 where it was held that the machine known as little horses" was an instrument of gaming, and that the act complained of was done in a public place.

6. These, as pointed out by Ghose, J., were the only points for decision and he held that the question decided in the Bombay case, which was much pressed before this Court, was not in point, as it certainly is not, if the ratio decidendi is confined to the dicta which we have cited above from the placitum. But it was pointed out in a concurrent judgment by Stephen, J., that the Bombay Court had gone further, and he felt bound to express doubts which he felt as to the soundness of the judgment in Queen-Empress v. Narottamdas Motiram 13 B. 681.

7. We do not quite follow him in his dictum that a more satisfactory distinction between gaming and betting is to be found by considering the popular rather than the