D.N.JOSHI, J. - (1.)THIS petition Under Section 482 Cr.P.C. has been filed by the petitioners for quashing the order of taking cognizance against the petitioners Under Section 3/4 ,of the Rajasthan Public Gambling Ordinance, 1949 (in short 'the Ordinance' hereinafter) on a complaint filed by S.H.O. Police Station, Sadar Bazar, Jodhpur.
(2.)THE facts in brief are that the petitioners are employed in Richirich Video Parlour situated at shop No. 123 Nai Sadak, Jodhpur owned and operated by one Shri Umesh Vyas, who is the proprietor of the said Video Parlour. The owner of the said Video Parlour is carrying on the business of Video Games for providing entertainment to the persons who are desirous to play the game. It has further averred in the petition that games mentioned in para No. 3 are the games exhibited on the electronic video games machine and the games are open for the general public at large for the purpose of amusement and entertainment of the persons whosoever is desirous to visit and the play the same. The person desirous to play any of the video game of his choice is required to pay a sum of Re. 1/ - only and against Re. 1/ - the player is provided a token made of metal. On one side of the token it is embossed that 'only for amusement' and on the other side it is mentioned 'no cash value', meaning thereby that the player is required to put that token in the whole present in the video game machine and it is only then by pushing the on -button the video game machine is operated and player with a certain amount of skill, knowledge and experience earns the points depending upon his ability and capability to play the game. The game is of mere skill and is nothing but source of entertainment and amusement for the general public. The S.H.O. Police Station Sadar Bazar, Jodhpur committed a raid oh the said Video Parlour and about 26 Persons, who were busy in playing the video games were arrested and also seized the video games machines, which were being operated by the players. Amongst 26 persons, three of them were the present petitioners, who are the employees of the said video parlour. Tulsi Ram is the Manager of the said Video Parlour and other two are care taker and helpers. The learned Magistrate took cognizance against all the accused -persons on the same day. 23 accused -persons were convicted and sentenced to fine on pleading guilty, but the present petitioners did not plead guilty and they were enlarged on bail. Against the order of cognizance as stated earlier, the present petition has been filed.
It was argued by the learned Counsel for the petitioner that the said electronic video games exhibited/operated in the said Video Parlour are the game of mere skill only and there is no element of chance involved in it. Therefore, no offence was committed at the face of the complaint. It was further argued that Gaming included wagering or betting but does not include a lottery as per Section 2(2) of the Ordinance. as per explanation in order to invoke any of the Sections disclosing offence under the Ordinance, the elements of wagering, betting must necessarily exist. Meaning thereby, the element of chance is the condition precedent and for this the authority acting in furtherance of the said Ordnanance of 1949 is required to apply its proper mind and must have a sound reason to believe that the activities taking place necessarily involved in it the element of pure chance. Therefore, no offence has been committed by the petitioners.

(3.)THE learned Counsel for the petitioner has placed reliance on the following decisions: (1) Harilal Gordhan v. Emperor AIR 1937 Bombay 385 (2) Dr. K.R. Lakshmanan v. State of Tamilnadu and Anr. : 1996CriLJ1635 (3) Standard Games v. State of U.P. and Ors. : AIR1997SC285 (4) State of M.P. and Anr. v. Smt Abha Devi : [1999]2SCR930 (5) Babu Bhai and Ors v. State of Raj. and Ors. (S.B. Cr. Misc. Pet. No. 508/97 decided on 9.11.1997) On the other hand, the learned Public Prosecutor supported the order of the learned Magistrate and argued that the petition at this stage is not maintainable and liable to be dismissed.