JUDGMENT

V. Bhargava, J. - This is a reference by the learned Additional District Magistrate of Mathura, recommending that the sentence of Bohrey Lal applicant for an offence punishable u/s 13 of the Public Gambling Act be set aside. No one has appeared for the applicant in this Court and I have heard learned Counsel for the State and have gone through the record. In my opinion, there are on sufficient reasons for interfering with the order of the trial Court. The Additional District Magistrate has begun his order of reference by saying that a number of irregularities and illegalities were pointed out to him by learned Counsel for the applicant. As it happens, the order of reference refers only to a very few irregularities and not a number of them. The first irregularity mentioned is that the trial Court did not record the plea of each accused separately but wrote the plea of all the accused jointly. It is clear from the record that the plea of all the accused was the same. The case was tried summarily and there dose not appear to be any requirement under the Code of Criminal Procedure that the plea of each accused must be separately recorded even when the plea of all the accused is identical.

2. The second point mentioned by the learned Additional District Magistrate is that three witnesses were examined in defence but their evidence was not considered by the trial Court in its judgment. This reference is on behalf of Bohrey Lal alone and the record shows that only one witness was examined by him in defence. The substance of his statement shows that the evidence was entirely irrelevant and had no bearing on this case. It cannot, therefore, be said that any irregularity was committed if this evidence was not considered at all. As it is, the learned Magistrate has explained that he did consider the evidence but forgot to refer to it in the judgment. In any case, this is not an irregularity that can vitiate the judgment.

3. Third point mentioned by the learned Additional District Magistrate is that the particular manner, in which betting was going on, did not constitute an offence u/s 13 of the Public Gambling Act, The learned Additional District Magistrate, unfortunately, did not take care to look up the Act itself and was misled by a ruling of the Nagpur Judicial Commissioner's Court reported in Gajju v. Emperor 1918 Cr. L.J. Rep. 917 which was shown to him by learned Counsel for the applicant. If the learned Additional District Magistrate had, instead of showing fondness for a ruling, pared to look up the Public Gambling Act, under which the case was being tried, he would have discovered that the ruling was not applicable at all. That ruling was bared on the language of Section 13 of the Public Gambling Act as applicable in the Central Provinces in 1917. The first clause in Section 13 of the Act was to the effect that:-

any person found playing for money or other valuable thing with cards, dice, counters or other instruments of gaming used in playing any game not being a game of mere skill in any public street, place or thoroughfare situated within the limits aforesaid.........."

4. The Public Gambling Act, as locally amended in U.P., under which the present case was tried, was entirely different. By U.P. Amendment Act I of 1917, the above clause was amended so as to read as follows:-

Any person found gaming in any, public street, place or thoroughfare situated within the limits aforesaid ..........."

5. In addition, the word 'gaming' was defined in Section 1 of Act as including wagering or betting, except wagering or betting upon a horse-race, when such wagering or betting takes place' in certain circumstances. This change in the language of the enactment makes all the difference. The Nagpur Judicial Commissioner's Court was called upon to interpret the words 'playing for money or other valuable thing with cards, dice, counters or other instruments of gaming'. In U.P., at present, the word, that has to be interpreted, is the word '