The central legal point established in the judgment is the interpretation of 'gaming' under Act III of 1889, emphasizing the distinction between gaming and playing a game, and the definition of a public place.

Oldfield, J.

1. The accused have been acquitted on a charge of an offence punishable under Section 3(10), Act III of 1889, because the lower Court was not satisfied on two points, that (1) the game was a game of chance, not skill and (2) it was being played in a place of public resort.

2. As regards the second point, the lower Court was moved by the fact that only a section of the general public, the Hindu community, has a right to go to the place and that others can go there only with the permission of the Dharmakartha of the adjoining temple. It is in evidence that the place, a small open space, is in no way closed by gates or otherwise; and there is no evidence that the Dharmakarthas alleged right of exclusion is ever exercised. The definition of a public place as one where the public go, whether they have a right to or not, in R. v. Wellard (1884) 14 L.R. Q.B.D. 63 has been adopted in this country. Hari Singh v. Jadu Nandan Singh (1904) I.L.R. 31 Calc. 542. In accordance with it, the lower Courts decision on this point cannot be sustained.

3. The description of the game played given in the lower Courts judgment is not demurred to by the Public Prosecutor or the accused, who unfortunately is not represented. There is then the finding that the game is one of skill, since the only element of chance in is constituted by the possibility, which enters into almost all games, that an unskilful player may occasionally be successful. Such a finding was no doubt treated as decisive in accuseds favour in Sari Singh v. King-Emperor (1907) 6 C.L.J. 708. But those proceedings were under Bengal Act II of 1867, by Section 10 of which games of mere skill are excepted from the general prohibition; and it is therefore unnecessary to consider the validity of the further distinction drawn in Ram Newaz Lal v. Emperor (1914) 23 I.C. 484 that the skill in question is that of two competing parties, not, as here, that employed by the competitors against the accused, by whom the game was carried on. The real objection to this part of the lower Courts decision is that the character of the game as one of skill or chance is not material under Act III of 1889, with which we are concerned.

5. Section 3(10) of that Act under which these proceedings are taken renders liable any person found in a public place "gaming with instruments of gaming"; and the question is what "gaming" includes. It has not been shown that the expression can be interpreted, simply etymologically, as equivalent to "playing a game." In the Imperial Dictionary, it is defined as "to use cards or other instruments according to rules with a view to win money or other things waged upon the issue of the contest"; and in Murrays Dictionary (1901), as the action of "playing at games for stakes." It is clear from these citations that the existence of a stake, not the character of the game as one of skill or chance, is regarded as constituting the distinction between playing a game and gaming. And this is supported by legal authority. No doubt Whartons Law Lexicon defines "gaming" as the act or practice of playing and following any game, particularly those of chance; and in the Indian cases already referred to and in English cases decided under 36 and 37 Vict., cap. 38, Section 3, for instance Redgeway v. Famdale (1892) 2 Q.B. 309 the presence of an element of chance was treated as material. But that was because of the explicit reference to it or to skill in the statutes in question. The English cases, moreover, such as Fielding v. Turner (1903) 1 K.B. 866 which were decided under 17 and 18 Vict., cap. 38, Section 4, do not assist us, because they deal with, "unlawful gaming." We have, however, an Indian caseRam Pratap Nemani v. Emperor (1912) I.L.R. 39 Calc. 868in which the meaning of "gaming" pure and simple was in question, its definition as "playing at any game for money, which is staked on the result of the game, i.e., which is to be lost or won according to the success or failure of t