TMI Blog2021 (10) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... a term that the law is not aware of. What is sought to be done in the case on hand is not a prohibition of Online Rummy as a trade of business which is dangerous to the community. Instead, the game Online Rummy is sought to be exempted from the provisions of the Kerala Act, to a limited extent when it is not played for stakes, as a game predominantly of skill. Such a notification is totally ill-conceived in my opinion since, the moment online rummy is recognised as a game predominantly involving skill, it will come within the purview of Section 14 of the Kerala Act and nothing more is required to take it out of the purview of the other provisions of the Kerala Act, which speak of penalty for gaming. So also, stakes cannot be the criterion for assessing whether a game is one involving skill or chance. On the question whether the power available to the State to issue a notification under Section 14A to exempt a game, clothe it with a power to notify a game which is a game of mere skill under Section 14, it is held that once a game comes within the purview of Section 14, any notification under Section 14A exempting it further as a game involving skill predominantly is only a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Madras Gaming Act, 1930 (III of 1930). After the formation of the State of Kerala, the Kerala Gaming Act, 1960 was enacted and the aforesaid enactments were repealed (to the extent it applied to the Malabar District, in the case of the Madras Act). The Kerala Gaming Act, 1960 was enacted to make better provision for the punishment of gaming and the keeping of common gaming houses in the State of Kerala. As per Section 2(1), common gaming house means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever; and include any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming. Section 2(2) defines gaming to include wagering or betting. Section 2(2) says that wagering or betting shall be deemed to comprise the collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la being satisfied that the element of skill is more predominant than the element of chance in the following games, hereby exempt those games from all the provisions of the said Act subject to the condition that no side betting shall be allowed in such games. 1. Rummy 2. Card games 28, 56, 112 3. dart throw 4. ball throw 5. cup and coin; and 6. shooting contests GRIEVANCE OF THE PETITIONERS 5. As per Ext.P7 notification, the game of rummy was taken out of the purview of the Act. The notification does not speak about stakes and does not distinguish between Rummy played with stakes and without stakes. The only restriction in the notification is that no side betting shall be allowed. The Legislature, either at the time of introducing the Act or when Ext.P7 was issued, was not contemplating the growth of technology which would create possibilities of several games in the online platform other than games played in gaming house. Confronted with the games that were introduced in the online platform, the Government of Kerala issued Ext.P6 notification on 23.02.2021 whereby Ext.P7 notification was sought to be amended by inserting the words excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iffer from the game rummy which is played in a club house. Reference is made to Section 11 of the Act which says that it shall not be necessary, in order to convict any person of keeping a common gaming house, or of being concerned in the management of any common gaming house, to prove that any person found playing at any game was playing for any money, wager or stake; and it is contended that as far as games which come within the purview of the Act are concerned, stakes or no stakes is immaterial. According to him, rummy which is a game of skill, is taken out of the purview of the Act by operation of Section 14 of the Act. The fallacy of the notification Ext.P6 according to the learned Senior Counsel is that by mere inclusion of stakes, the game of Online rummy is converted into a game of chance. The learned Senior Counsel submits that stake has nothing to do with either chance or skill. The Senior Counsel drew support from the decisions of the Hon'ble Supreme Court in Dr. K.R. Lakshmanan v. State of Tamil Nadu Anr. reported in [(1996) 2 SCC 226], and State of Andhra Pradesh v. K.Satyanarayana reported in [AIR 1968 SC 825] which will be considered later in the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 14 of the Act. Reference is made to the judgment in Satyanarayana (supra) at paragraphs 3, 5 and 12 to say that the game of rummy is not a game of chance. 11. The counsel referred to Ext.P3 judgment of a Division Bench of this Court in W.P.(C) No.2096/2021, which was filed in public interest. In paragraph 8 of the judgment this Court observed that from the statement made on behalf of the Government it is revealed that the existing law, does not bring online gambling or online betting, within the purview of the Kerala Gaming Act, 1960, and inclusion of the same in the existing enactment is a legislative function. After placing on record the submission on behalf of the respondents, this Court directed to take appropriate decision on the aspect of inclusion of online gambling and online betting, within the purview of the Kerala Gaming Act, 1960, within a period of two weeks. According to the counsel, this judgment was the reason why the notification Ext.P6 was issued by the Government. A contention has been taken that even though it was conceded that what was required was a legislative function, what is done now is an executive function. The counsel further points out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be applied on all fours, since the Hon'ble Supreme Court was not considering a case wherein the enactment contained a provision in the lines of Section 14A. Reference is also made to the decision in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise Anr. reported in [(2016) 3 SCC 643]. ISSUES TO BE DECIDED 13. On the basis of the submissions made by the counsel on either side, the following questions arise for consideration; a) Is Rummy is a game of mere skill, so as to take it out of the purview of the Act, as provided in Section 14 of the Act ? b) Is Rummy a game in which the element of skill is more predominant than the element of chance, and can be exempted from the provisions of the Act only by means of a notification ? c) Whether Rummy when played for stakes, becomes a game neither covered by Section 14 nor by a notification issued under Section 14A ? d) If Rummy is a game of skill under Section14, can Online Rummy also be stated to be a game of skill and not of chance ? e) Does inclusion of stakes for playing Online Rummy, make any difference to the nature of the game as a game of skill ? f) Does the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the accused. On a revision petition filed by the accused, the Sessions Court referred the issue to the High Court under Section 438 of the Code of Criminal Procedure, recommending the quashing of the conviction and the setting aside of the sentences. A learned Single Judge of the High Court accepted the recommendation, against which the State had approached the Hon'ble Supreme Court. The statutory provision which was considered by the Apex Court was Section 14 of the Public Gambling Act, 1867, which is similar to Section 14 of the Kerala Act. In paragraph 12 of the judgment, the Hon'ble Supreme Court held as follows: 12. We are also not satisfied that the protection of Section 14 is not available in this case. The game of rummy is not a game entirely of chance like the three-card game mentioned in the Madras case to which we were referred. The three card game which goes under different names such as flush , brag etc. is a game of pure chance. Rummy, on the other hand, requires certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance and that it is the dominant element - skill or chance - which determines the character of the game. 18. In paragraphs 8 and 9 of the judgment, on the question whether the games which depend to a substantial degree upon the exercise of skill come within the stigma of gambling , the Apex Court referred to the two Chamarbaugwala cases (supra), and held that a competition, success wherein does not depend to a substantial degree upon the exercise of skill, is now recognised to be of a gambling nature. The Apex Court held that gambling is not trade and as such is not protected by Article 19(1)(g) of the Constitution. It has further been authoritatively held that the competitions which involve substantial skill are not gambling activities. Such competitions are business activities, the protection of which is guaranteed by Article 19(1)(g) of the Constitution. Paragraphs 19 and 20 of the judgment in K.R.Lakshmanan(supra), which are very relevant for deciding the issue in these cases are extracted below: 19. We may now take up the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out, there is an element of chance, because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that rummy is a game of chance and there is no skill involved in it. 20. The judgments of this Court in the two Chamarbaugwalla cases and in the Satyanarayana case [(1968) 2 SCR 387 : AIR 1968 SC 825 : 1968 Cri LJ 1009] clearly lay down that (i) the competitions where success depends on substantial degree of skill are not gambling and (ii) despite there being an element of chance if a game is preponderantly a game of skill it would nevertheless be a game of mere skill . We, therefore, hold that the expression mere skill would mean substantial degree or preponderance of skill. Later, in paragraph 33, the Apex Court observed that Gaming is the act or practice of gambling on a game of chance (emphasis supplied). DIVISION BENCH DECISION IN RAMACHANDRAN (SUPRA) 19. A question came up before a Division Bench of this Court in Ramachandran (supra), w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20, the Division Bench specifically held that Section 2(a) of the Kerala Act is not in pari materia with the Hyderabad Gambling Act, which arose for consideration before the Apex Court in Satyanarayana (supra). In paragraph 21, the Division Bench observed that even though Section 14A of the Kerala Act provides for issuance of a notification exempting any game, the playing of which depends predominantly on skill, from all or any of the provisions of the Act subject to such restrictions and conditions as may be specified in the notification, admittedly (emphasis supplied), no such notification was issued by the Government exempting the game of Rummy played for stakes. There appears to be some confusion regarding the above observation. Exhibit P7 is a notification issued exempting Rummy from the provisions of the Act without any qualification as to whether it is played for stakes or not. The only condition in the notification is that side betting is not allowed. Side betting and stakes are different from each other and as such it may not be correct to say that there is no notification issued by the Government. It would appear from the judgment that Exhibit P7 was not placed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Division Bench of this Court dismissed the review petition. While dismissing the review petition, the Bench considered Section 14A of the Act and the judgment in Satyanarayana (supra) and Dr.K.R.Lakshmanan (supra). In paragraph 7 of the order, it was held that there is no dispute about the fact that in view of Ext.P7 notification, playing rummy is excluded from the provisions of the Act and that the Hon'ble Supreme Court has held that element of skill is predominant than the element of chance in the game of rummy. Regarding the question whether rummy played for stakes will amount to a violation of the provisions in the Act or not, the Bench expressed the view that it is a matter that has to be decided on a case to case basis. It further stated that if it is just playing rummy without any side betting, the notification protects the parties involved in it. But, in a case where rummy is played for stakes, the issue might be different which has to be dealt with on a case to case basis. THE DECISION IN RAMACHANDRAN (SUPRA) WHETHER RENDERED PER INCURIAM AND HENCE NOT A BINDING PRECEDENT 22. The legal proposition that a decision which is rendered per incuriam and sub silen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a rule having the force of a statute. 211. In State of M.P. v. Narmada Bachao Andolan [State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989], this Court has observed: 67. Thus, per incuriam are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. 25. Applying the above legal principles, with all due respects to the Division Bench at my command, the conclusions drawn in the judgment do not appear to be in accordance with the statutory provisions and the law laid down by the Hon'ble Supreme Court in the decisions on Satyanarayana and K.R.Lakshmanan (supra). In my humble opinion, the judgment of the Division Bench, does not consider the following aspects: a) Section 14 of the Act is in pari materia with Section 11 of the Madras Gaming Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons that emerge. Questions 1,4,5 and 6 alone are relevant for the purpose of this case. The question No.1 posed does not require any detailed consideration in the light of the binding decision of the Apex Court in Satyanarayana and K.R.Lakshmanan (supra). Question No.4 appears to be a mistake since the word 'gambling' is not defined under the Kerala Act and only the word 'gaming' is defined. Regarding Question No.5, application of Sections 7 and 8 itself will depend on the question whether Rummy is covered by Section 14 or not. The Division Bench has not considered Section 14 of the Act at all. Question No.6 also appears to be a mistake since exclusion of a game of skill from the Kerala Act is under Section 14 and not under Sections 7 and 8. Sections 7 and 8 only provide for penalty in case gaming is carried on in a common gaming house. h) Paragraph 14 of the judgment extracts the statutory provisions that needed to be looked into for deciding the issue, according to the Division Bench. A reading of the paragraph shows that the most relevant statutory provisions contained in Sections 3 and 14 have not even been considered. I) Section 3(a) deals with 6 kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon'ble Supreme Court by its order dated 30.07.2021, wherein it is observed that Special Leave Petitions filed against the judgments of the Punjab and Haryana High Court and the Bombay High Court were dismissed on 15.06.2017 and 04.10.2019 13.12.2019 respectively. 27. A Division Bench of the High Court of Madras in a batch of writ petitions considered the validity of the amendment introduced by the Tamil Nadu Government to the Tamil Nadu Gaming Act, whereby all forms of games being conducted in cyberspace, irrespective of the game involved being a game of mere skill, if such game is played for a wager, bet, money or other stakes was prohibited and struck down the amendment. In the judgment in Junglee Games India Private Limited Anr. v. The State of Tamil Nadu Ors. reported in [2021 SCC OnLine Mad. 2767], the Division Bench found that when it comes to card games or board games such as Chess etc. when played in the physical form or in the virtual mode, there is no distinction on the basis of the skill involved. The Bench found that rummy is a game of skill. The Court found that by expanding the field of legislation by widening the scope of gambling, the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... played for stakes, the offence may be brought home clearly shows that Rummy played for stakes is an offence. I am unable to accept the above proposition. The above said observation has necessarily to be read with the first sentence in paragraph 12 of the judgment which says that protection of Section 14 is available in the case. Section 14 deals with games of mere skill. The observation referred to by the State Attorney can hence only take in situations like side betting during a game of Rummy, which has been taken care of by Ext.P7 notification and to profit or gain made by the owner of the house or club from the game of rummy or any other game played for stakes. What matters is not the stakes but the profit or gain made by the owner of the house. Side betting is not a term that the law is not aware of. In the decision in Legal Remembrancer v. L.E.Renny reported in [AIR 1936 Cal. 184] and In re Mannyla Naidu reported in [AIR 1944 Mad.447], it was held that the game of dart is a game of skill. It was further observed in the judgments that the person who is actually playing the dart game, is playing a game of skill, but for the persons who are side-betting for them, the gam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has ample powers to take away the effect of the judgment by a legislative process. It is further contended that since power to grant exemption vide issuance of a notification includes the power to modify, Ext.P6 notification cannot be found fault with. It is also contended that the issuance of a notification under Section 14A is a legislative exercise and not a mere executive order capable of being set aside by the issuance of a certiorari. The question regarding the power to issue a writ of certiorari is no longer relevant since the petitioner has sought amendment of the writ petition by addition of a prayer for declaration. The contention that Section 14A takes away the substratum of the decision in Satyanarayana (supra) is not legally sustainable. The judgments of the Apex Court in Satyanarayana and K.R.Lakshmanan (supra) are rendered interpreting the scope of the words mere skill which are the very same words contained in Section 14 of the Kerala Act. As long as Section 14 remains in the Statute Book, Section 14A will not have the effect of removing the substratum as contended by the State Attorney. So also, with Section 14 in the Statute Book, Section 14A is rendered super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word has been interpreted by the Hon'ble Supreme Court in Satyanarayana and K.R.Lakshmanan (supra). On the question whether Rummy when played for stakes becomes a game neither covered by Section 14 nor by a notification issued under Section 14A, I hold that the mere skill contained in Section 14 and any game the element of skill is more predominant than the element of chance contained in Section 14A do not suggest that skill in playing a game is in any manner dependent on stakes. As such playing for stakes or playing not for stakes can never be a criterion to find out whether a game is a game of skill. On the question whether Online Rummy is a 'game of skill' and 'not of chance', I hold that on the very same reasoning adopted by the Hon'ble Supreme Court to find the game of Rummy as a 'game of skill', the game of Online Rummy will also have to be held to be a 'game of skill'. On the question whether inclusion of stakes for playing Online Rummy would make any difference to the nature of the game as a game of skill, I hold in the negative and declare that Online Rummy played either with stakes or without stakes remains to be a 'game ..... X X X X Extracts X X X X X X X X Extracts X X X X
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