1. - The petitioners have challenged the continuation of proceedings against them pending before the Judicial Magistrate, Sri Ganganagar for offence under section 3/4 of the Rajasthan Public Gambling Ordinance, 1949 (henceforth to be referred as the Ordinance for short).

2. The brief facts of the case are that on 24.5.2002 the SHO, Police 5 Station, Jawahar agar, Sri Ganganagar had filed a complaint against the present petitioners for offence under Section 3/4 of the Ordinance. According to the said complaint, on 12.5.2002 a police party had raided Dream World Video Games, situated at 159, Sukhadia Shopping Centre at Sri Ganganagar. The present petitioners are the employees of the said Video Game Parlour. Alongwith the present petitioners, twelve other persons, who were playing video games at the Parlour, were also arrested. While the twelve players had pleaded guilty and were sentenced to fine, the present petitioners did not plead guilty. They were enlarged on regular bail. However, as they are aggrieved by the continuation of criminal proceedings against them, they have challenged the same before us.

3. Mr. Sandeep Shah, the learned Counsel for the petitioners, has to vehemently argued that the games played at the Parlour involving a machine and the skill of the player is not included under the Ordinance. According to him, in order to invoke the penal sections under the Ordinance, the element of chance is sine qua non for the offence. But, a video game is a game of skill, therefore the operation of video game is not covered under the Ordinance. In order to substantiate his arguments, he has relied upon the case of Tulsi Ram v. State of Rajasthan, S.B. Criminal Misc. Petition No. 284 of 2000 decided on 24.1.2002 by his Hon'ble Court. Hence, according to him, the continuation of the criminal proceedings amounts to abuse of the process of the law and of the Courts. Thus, the criminal proceedings should be quashed immediately.

4. The learned Public Prosecutor, on the other hand, has argued that when the raid was carried out, the players were found to have certain tokens, which they were using to operate the machines. Each of the players also had money with them. Moreover, the video game is not just a game of skill, but also involves an element of chance. Therefore, the operation of such a video game is included within the four corners of the Ordinance. Hence, according to the learned Public Prosecutor, the criminal proceedings should be permitted to continue.

5. We have not only examined the arguments made by the Counsels for the parties, but have also considered the relevant law and case law.

6. Section 2(2) of the Ordinance defines "gaming" as follows:

"In this ordinance, unless there is anything repugnant in the subject or context:

(1) xxx

(2) "gaming" includes wagering or betting but does not include a lottery:

Explanation: 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 shall be deemed to be "gaming".

Section 12 of the Ordinance reads as under:

"12. Ordinance not to apply to certain games. Nothing in this Ordinance shall be, held to any game of mere skill, as distinguished from a game of chance or a game of chance and skill combined, unless it is carried on in a common gaming house."

7. A bare perusal of these provisions would clearly reveal that the element of wagering/betting is an essential ingredient of the offence. Section 12 of the Ordinance while carving out an exception clearly states that nothing in this Ordinance shall be held to apply to any game of mere skill, as distinguished from a game of chance or a game of chance and skill combined, unless it is carried on in a common gaming house.

8. Indeed, there is always an element of chance in any game, as in life. However many games depend on the execution of the skill of the player. Thus, games like Horse-racing which depend on the