Kishan Chander vs State of Madhya Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 47 of 1961

Decision Date: 25 January 1963

Coram: M. Hidayatullah, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah

In the matter titled Kishan Chander versus State of Madhya Pradesh, the Supreme Court of India delivered its judgment on 25 January 1963. The opinion was authored by Justice M. Hidayatullah and the bench was composed of Justices M. Hidayatullah, P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta and J. C. Shah. The petitioner was Kishan Chander and the respondent was the State of Madhya Pradesh. The citation for the decision appears as 1965 AIR 307 and 1964 SCR (1) 765. The controversy centred on the constitutional validity of sections six and eight of the United State of Gwalior, Indore and Malwa (Madhya Bharat) Gambling Act, Samvat 2006 (Madhya Bharat Act No. 51 of 1949), and whether those provisions infringed the principles of natural justice, the fundamental rights guaranteed under Articles 13, 19 and 21 of the Constitution, or the established doctrines of criminal jurisprudence.

The factual backdrop disclosed that three appellants together with five other individuals had been tried for offences punishable under section four of the aforementioned Gambling Act and had each received imprisonment sentences. Their appeals against conviction were dismissed by the Sessions Judge, and a subsequent revision petition was also rejected by the High Court. The appellants then obtained special leave to approach this Court. The sole ground raised before the Court was that sections six and eight of the Act were ultra vires the Constitution and contravened the requirements of natural justice and criminal law principles. The Court examined the definition of “gambling” and the description of a “gaming house” contained in the statute. Although the definition of a gaming house was described as broad and encompassed a long list of locations, the Court held that the breadth did not render the provision unreasonable or inconsistent with any guaranteed constitutional rights. The Court observed that the Act incorporated safeguards designed to protect innocent persons, including procedural checks for detection and prosecution of offenders. The power to authorize police entry and search of premises suspected to be gaming houses was vested in senior officers who were required to act reasonably and only after obtaining satisfactory grounds. Moreover, the officer effecting entry and seizure had to demonstrate to the Court that his suspicion was based on reasonable grounds before the burden of proving innocence could shift to the accused. While section six uses the term “suspecting,” the Court clarified that such suspicion must be reasonably founded in actual proof. Considering that gambling was characterized as a pervasive evil, that gaming houses operated profitably, and that detecting gambling activities was exceptionally difficult, the Court concluded that legislative measures aimed at eradicating gambling were unquestionably in the public interest. The Court further emphasized that a law of this nature necessarily required a special procedure, and provided that the procedure was not arbitrary and included adequate safeguards, the law could not be successfully challenged. Accordingly, the Court held that sections six and eight of the Gambling Act were not ultra vires the Constitution, that the Act’s restrictions on fundamental rights were not unreasonable, and that the Act contained sufficient safeguards to protect against the victimisation of innocent persons.

In this case, the Court observed that the provisions of the Gambling Act were intended to protect the public by ensuring that no danger would arise to any person except to those individuals who were proven, to the satisfaction of the Court, to be keeping a gaming house, or who could be presumed, unless the contrary was proved, to be present in such premises for the purpose of gaming. The judgment concerned a criminal appeal, numbered 47 of 1961, which had been taken up by special leave from an order dated 14 December 1960 of the Madhya Pradesh High Court, Gwalior Bench, in Criminal Revision No. 91/59. Counsel for the appellants was instructed, while counsel for the respondent appeared on the other side. The appeal was heard on 25 January 1963, and the judgment was delivered by Justice Hidayatullah.

The matter arose from a criminal revision that had been dismissed by the High Court. The three appellants, together with five other persons, had been tried for offences under section 4 of “The United State of Gwalior, Indore and Malwa (Madhya Bharat), Gambling Act, Samvat 2006” (Madhya Bharat Act No. 51 of 1949, Samvat 2036). In addition, the first appellant, Krishnachandra, had also been tried under section 3 of the same Act. All of the original accused except one were convicted under section 4 and sentenced to one month of simple imprisonment. Krishnachandra was additionally convicted under section 3 and, for that conviction, also received a one‑month simple imprisonment; his sentences were ordered to run concurrently. All of the convicted persons had subsequently appealed to the Court of Session, but their appeals were dismissed. The three appellants then filed a petition for revision in the High Court, which issued a notice under section 439 of the Code of Criminal Procedure requiring the appellants to show cause why their sentences should not be enhanced. By its order dated 14 December 1960, the High Court dismissed the revision petition and, apart from confirming the term of imprisonment, imposed a fine of Rs. 200 on each count for which the appellants had originally been convicted. The appellants applied to the High Court for a certificate to appeal to this Court, but the High Court refused the request. Nonetheless, the appellants obtained special leave from this Court and filed the present appeal.

The sole point argued before this Court was that section 6 of the Gambling Act was ultra vires the Constitution and contravened the principles of natural justice and the fundamentals of criminal jurisprudence. A similar contention was also raised concerning section 8 of the Act. The Court noted that the Madhya Bharat Act closely mirrored the corresponding Indian statute; although there were minor differences in wording, the purpose and intent were essentially the same. The Court further referred to the three definitions contained in section 2 of the Act, which govern the operative provisions. The definition of “gaming” was explained to include “wagering and betting,” and the explanatory note attached to that definition described any transaction whereby any person, in any capacity, employs another, in any capacity, to wager or bet with another person, and includes the collection, solicitation, receipt, or distribution of winnings or prizes, whether in money or otherwise, in respect of wagering or betting, or any act intended to aid or facilitate wagering or betting, as constituting “gaming.”

The statute defines “gaming” to include any transaction in which a person, in any capacity, employs another person, in any capacity, to wager or bet with a third party, and also includes the collection or solicitation of bets, receipt or distribution of winnings or prizes in money or otherwise, as well as any act intended to aid or facilitate wagering or betting, or any such collection, solicitation, receipt or distribution; all such acts are deemed to constitute “gaming”. The term “gaming house” is defined as any house, room, tent, enclosure, space, vehicle, vessel or any other place whatsoever in which gaming takes place or in which instruments of gaming are kept or used for gaming. The definition further explains that “instruments of gaming” comprise any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register, record or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or otherwise that are distributed or intended to be distributed in respect of any gaming. These definitions demonstrate that a gaming house is any location where gaming is carried out or where the tools required for gaming are stored for the purpose of wagering, betting or facilitating such activities. The Act creates two separate offences: one affecting the keeper of a gaming house and the other affecting persons who are found gaming or are present for the purpose of gaming in a gaming house. Section 3, which creates the offence concerning the keeper of a gaming house, stipulates that any person who opens, keeps or uses any house, room or place for the purpose of a gaming house; or, being the owner or occupier of such a house, room or place, knowingly or wilfully permits it to be opened, occupied, kept or used by another person for that purpose; or, who has the care or management of, or in any manner assists in conducting the business of, such a house, room or place; or, who advances or furnishes money for the purpose of gaming to persons frequenting such a house, room or place, shall on conviction be punishable with imprisonment which may extend to six months and with a fine. A proviso provides for enhanced penalties for the first, second, third or subsequent offences. Section 4 makes the act of gaming in a gaming house an offence, providing that any person who is found in any gaming house, is gaming, or is present for the purpose of gaming shall, on conviction, be punishable with imprisonment which may extend to six months and with a fine. The section also contains a special presumption that any person found in a gaming house during any gaming therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming, and a proviso that prescribes enhanced penalties in the same manner as in Section 3. Section 5 confers powers on certain officers to enter or authorize police officers, not below the rank of sub‑inspector, to enter and search a gaming house, but such power may be exercised only when the officer is satisfied, on the basis of credible information and after any necessary inquiry, that there are good grounds to believe that any house, room, tent, enclosure, space, vehicle, vessel or place is being used as a gaming house.

The statute authorises an officer of the rank of sub‑inspector, or any police officer of lower rank who is authorised by such an officer, to enter and search a premises that is alleged to be used as a gaming house. However, this power may be exercised only when the officer is satisfied, on the basis of credible information and after any inquiry that he deems necessary, that there are reasonable grounds to believe that a house, room, tent, enclosure, space, vehicle, vessel or any other place is being used for gaming. Section 6, which is the subject of the present appeal, provides that when an instrument of gaming is seized in any house, room, tent, enclosure, space, vehicle, vessel or place that has been entered or searched under the foregoing provision, or when such an instrument is found on the person of anyone present therein, the seizure shall be admissible as evidence. This admissibility is contingent upon the court being satisfied that the officer who entered or searched the premises had reasonable grounds to suspect that the seized item was indeed an instrument of gaming. Once that condition is fulfilled, the seizure is treated as evidence unless the contrary is proved, namely that the premises in question was not used as a gaming house and that the persons found there were not present for the purpose of gaming, even though no actual gaming activity was observed by the magistrate or the police officer.

Section 8 creates a special evidential rule stating that, in order to convict a person of any offence under sections 3 or 4, it is not necessary to prove that any individual found gaming was playing for money, a wager or a stake. In the present case, the court recorded that a search of the premises uncovered instruments of gaming, which gave rise to a presumption under section 6 against the individuals present. The impugned provisions have been challenged on the ground that they violate Articles 19 and 21 of the Constitution. The petitioners argue that the sections unreasonably curtail the right of assembly and the right to hold and enjoy property, contending that the offence of keeping a gaming house and the offence of gaming in a gaming house may be proved largely on the basis of an officer’s suspicion and the seizure of items such as playing cards and dice. They further assert that the statutory scheme reverses the usual burden of proof, requiring the accused to disprove alleged guilt, and therefore contravenes Articles 19 and 13. The petitioners maintain that, because of these provisions, there is also a breach of Article 21, although the argument under Article 21 need not be addressed separately if the provisions are held constitutional, as any limitation on liberty would then be permissible only if it follows a procedure established by law. Consequently, the core issue before the Court is whether the challenged provisions are so unreasonable as to fall outside the protection afforded by clauses (3), (4) and (5) of Article 19.

In this case, the Court observed that a claim of violation of Article twenty‑one need not be examined separately. If the challenged provisions of the Act were held to be constitutional, any restriction on personal liberty would still be permissible only if it followed the procedure established by law. Consequently, the essential question was whether the impugned provisions of the Act were so unreasonable that they lost the protection afforded by clauses three, four and five of Article nineteen. The Court noted that the Act was enacted before the Constitution came into force and therefore could be declared void only on the ground of inconsistency with Article thirteen. The Act was not contested on the basis that the legislature that passed it lacked competence, nor on the ground that it had ceased to be law for any reason other than an alleged breach of Articles nineteen and twenty‑one. The Court accepted the premise, which the appellants also conceded, that gambling constitutes an evil and that the public interest in maintaining order, morality and the general welfare required its eradication. Having accepted that premise, the remaining issue was whether the law devised to eliminate gambling imposed unreasonable restrictions on the rights guaranteed by the Constitution. To succeed, the appellants had to demonstrate that a legitimate objective had been achieved by means that amounted to an unreasonable curtailment of the guaranteed freedoms. The Court therefore set out to examine, in detail, whether the provisions under challenge could be regarded as unreasonable in the sense contemplated by the Constitution.

The Court then turned to the statutory definitions contained in the Act. It explained that the term “gaming” was defined to include wagering and betting, which are the most common forms of gambling, while leaving the definition open to cover other possible forms of gambling. The Court found nothing in this definition that was unreasonable or that infringed any of the guaranteed rights. The next term defined was “gaming house.” According to the Act, any place becomes a gaming house if gambling is carried out there, or if instruments of gambling are kept or used there. Although the definition is broad and encompasses a long list of places, the Court noted that the breadth does not render it unreasonable, as it serves the central purpose of the legislation. The definition of “instruments of gaming” was also examined; it includes articles used or intended to be used as a means of gambling, together with related documents, registers, records, proceeds of gambling and prize money. The wording “used or intended to be used as a subject or means of gaming” specifies the circumstances in which mere possession of such articles becomes incriminating. Having clarified the meanings of gambling, gaming house and instruments of gaming, the Court observed that the Act incorporates safeguards to protect innocent persons by imposing certain checks before proceeding with detection and prosecution. The offences expressly covered by the Act are the keeping of a gaming house under section three and gambling in a gaming house under section four.

The Court observed that Section 12 criminalised gaming in places that were open to the public, but it clarified that the present appeal did not concern that provision. Section 5, the Court explained, granted authority to enter and search premises that were suspected of being used as gaming houses. This authority could be exercised by a District Magistrate, a Sub‑divisional Magistrate, or a police officer who was below the rank of a Sub‑Inspector. Before a search could be carried out, the officer was required to be satisfied, on the basis of credible information and after any inquiry deemed necessary, that there were good grounds to believe that the premises were being employed as a gaming house. Upon entering such premises, the officer was empowered to place any persons present into custody, to search those persons, to search the premises themselves, and to seize any items that were reasonably suspected of having been used for the purpose of gaming. The Court emphasized that these powers were vested only in senior officers who were expected to act reasonably and only after obtaining proper satisfaction of the necessary criteria. However, the Court also noted that the procedural requirements did not end with the arrest and seizure; the officer who had entered the premises and taken the articles was required thereafter to satisfy the Court that the suspicion on which the search was based was founded on reasonable grounds. Only after that judicial satisfaction was achieved did the burden shift to the accused to establish his innocence.

The Court further explained that although Section 6 employed the term “suspecting,” the law demanded that such suspicion be demonstrably reasonable. Accordingly, the safeguards incorporated in the legislation were identified as follows: first, the existence of credible information; second, the seizure of articles that were suspected to be instruments of gaming and that corroborated the information on which action was taken; and third, proof, to the Court’s satisfaction, that reasonable grounds existed to regard the seized items as instruments of gaming. Once the Court was convinced that a premises qualified as a gaming house, the law required any person found there during a gaming session to explain his presence, failing which he would be presumed to be there for the purpose of gaming. The Court considered that gambling constituted a grave social evil, was widespread, that gaming houses operated as lucrative enterprises, and that detecting gambling was notoriously difficult; consequently, a statute aimed at eradicating gambling served the public interest. The Court held that, provided the procedure was not arbitrary and the safeguards were adequate, the law could not be successfully challenged. In the Court’s opinion, the Act contained sufficient safeguards to protect individuals except those who were proven, to the Court’s satisfaction, to be operating a gaming house or who could be presumed to be present for gaming unless they successfully rebutted that presumption. The Court concluded that the impugned provisions were constitutionally valid, dismissed the appeal, and ordered that the appeal be dismissed.