This is a Criminal Revision Case filed against the conviction and sentence of the Petitioners in C.A. No. 67 of 1951 on the file of the Sub-Divisional Magistrate of Bandar confirming the conviction and sentence in C.C. Nos. 70 to 76 of 1951 on the file of the Stationary Sub-Magistrate, Avanigadda.

The facts are:-

On 12th January, 1951, the Sub-Inspector of Police of Avanigadda approached the Stationary Sub-Magistrate of Avanigadda with a requisition Ex. P-2 in which he stated that he had reliable information that gambling on a large scale was going on in a common gaming house bearing door No. 21/4 in the fourth ward of Avanigadda belonging to Tangiralla Viswanadha Sastri and requested the issue of a search warrant to enable him to search the house. The Sub-Magistrate is stated to have put further questions also to the Sub-Inspector of Police as would justify him to issue the warrant and he is said to have after satisfying himself, issued a search warrant Ex. D-1. This search warrant was issued on 12th January, 1951. In pursuance of this warrant on 14th January, 1951, the Sub-Inspector of Police of Avanigadda accompanied by two Panchayatdars of whom one has been examined as P.W. 1, viz., J.D. Jacob, correspondent of the C. B. H. School, Avanigadda and another who has not been examined, is said to have raided the place. The seven accused persons who are the seven petitioners before us are stated to have been found playing cards for money in the house and the following were found by the Sub-Inspector and Jacob. One set of playing cards numbering 52, money amounting to Rs. 152-5-10, two bed lights, two torch lights and two mats, etc. The Station House Officer arrested the seven accused and seized the above articles and money before the mediators and got a Panchayatnama Ex. P-1, written on the spot and charge-sheeted the accused.

The learned Stationary Sub-Magistrate’s judgment shows that this case has been tried under the summons procedure because he writes in para. 2 of his judgment that when the accused were called on to explain after the substance of the accusation against them all were stated to them, they stated that that day being the Sankaranthi festival day, Thangirala Anjaneya Sarma was performing Satyanarayana Vritam and that on invitation from him they all went to his house and that the house was not a common gaming house and that they did not gamble there.

Gambling is not by itself an offence and it becomes one only when it takes places in a common gaming house or a public place, with the latter of which we are not concerned here. In order to make out the offence three things must concur. First of all the gambling must be in a common gaming house. “Common gaming house” has been defined as meaning any house in which cards are kept or used for the profit or gain of the person owning, occupying, using or keeping such house whether by way of charge for the use of instruments of gaming or of the house. The mere fact that occasionally people used to play cards in a house and perhaps for money does not necessarily make it a “common gaming house.” See Emperor v. Subramania1. The term “common gaming house” must at least imply that the house was one used as a place of public resort and a common gaming house is one in which a large number of persons are invited habitually to congregate for the purpose of gaming and it makes no difference that the house was not open to all persons who might be desrious of using the same for gaming, In re: Krishnaswami Naidu2. Secondly under the definition of the common gaming house as defined in section 3 of the Madras Gaming Act the element of profit or gain is an essential ingredient and when this is negatived by the evidence in this case there is nothing to warrant a conviction of the persons found in such a house under section 9 of the said Act which postulates of course the position of persons found gaming or present for the purpose of gaming in a common gaming house. All that section 6 o