Legislation To Regulate And Monitor Online Skill Games Is The Need Of The Hour: Madras HC

D. Siluvai Venance v. State, rep. by The Inspector of Police, Koodankulam Police Station, Tirunelveli.

Crl.OP.(MD) No.6568 of 2020 and Crl.MP.(MD) No.3340 of 2020

Decided on July 24, 2020

Counsel for Petitioner: Mr. L.P. Maurya

Counsel for Respondent: Mr. K.K. Ramakrishnan, Additional Public Prosecutor

A single-judge bench consisting of Justice B. Pugalendhi decided the case at hand. While quashing the proceedings against the Petitioner on the ground that the place in question cannot be classified as a common gaming house, the Court emphasized the need for the Government of Tamil Nadu to bring about a legislation for online gaming activities like gambling, lotteries and prize competitions.

An FIR was registered by the respondent Police on the complaint of the Sub-Inspector of Police, against the petitioner and four others for an offence under Section 12 of the Tamil Nadu Gaming Act, 1930 (hereinafter ‘the Act’). The complainant found the petitioner and four others playing cards near a thorny bush and therefore, he arrested the accused, recovered the cards and money and registered the case for the said offence. The petitioner claimed that he did not participate in the game, but was a mute spectator and that the respondent Police suddenly entered the farm land and apprehended the petitioner and his friends and registered the case.

The learned counsel for the Petitioner contended that the place mentioned in the FIR is neither a common area as per Section 3 of the Act, nor is it a public street/place as contemplated under Section 12 of the Act. He argued that the premises, in which the search and seizure was made, is a farm land of the petitioner's friend and the same cannot be brought within the purview of Section 12 of the Act. Further, he stated that the petitioner was only a mute spectator who accompanied his friends at the time of occurrence and has therefore been unnecessarily arrested and treated as an accused. The counsel relied on the following decisions of this Court in (i) Naina Mohamed v. Inspector of Police, Keelakarai Police Station, Ramanathapuram District, in Crl.OP.(MD) No. 7087 of 2017, dated 25.10.2019, (ii) M. James Arockia Samy v. The Inspector of Police, Aaravayal Police Station, Devakottai Taluk, Sivagangai District, in Crl.OP.(MD) No. 11917 of 2015, dated 22.10.2018 and (iii) D. Kannan v. The Inspector of Police, Thirupuvanam, Sivagangai District, in Crl.OP.(MD) No. 1573 of 2015, dated 04.02.2015.

On the other hand, the learned Additional Public Prosecutor submitted that the accused persons were playing cards with stakes and that there is a legal presumption under Section 6 of the Act that the persons found gaming with cards in any place are presumed to be playing in a common gaming house. He further contended that since the case is only at the stage of FIR and the accused were arrested by the Police along with cards and money, it was not proper to interfere with the investigation and prayed for dismissal of the petition.

The Court heard both counsels and while entertaining this application, raised a query to the respondent Police that when they are very particular in implementing the Tamil Nadu Gaming Act by registering a case even if a person is playing cards near a thorny bush, how online rummy is permitted in the State of Tamil Nadu, in addition to the entire country. In response to this, the Assistant Inspector General of Police, Law and Order, filed a status report on behalf of the Director General of Police, Tamil Nadu stating that online gaming companies in India are required to comply with multiple laws, both Central and State, but most of them are not complying with techno-legal requirements of different laws of India. The Assistant Inspector General of Police admitted that at present there is no rule to regulate and license online skill games in the State of Tamil Nadu.

The Court paid consideration to the rival submissions and the materials placed on record.

In response to the contention of the Additional Public Prosecutor that it was not proper to interfere with the investigation, the Court relied on the dictum in J. Raghunadhu v. Emperor, 1933 MWN 1422 and Raman Nair v. State, (1990) 2 MWN Crime 195, and stated:

The place at which the gaming had taken place, even according to the respondent Police, is near a thorny bush, cannot be termed as a common gaming house. As the continuation of the investigation in this case will amount to abuse of process of law, this Court is inclined to interfere with the proceedings. (Para 19)

Accordingly, the Court quashed the proceedings pending against the petitioner/fifth accused in Crime No. 175 of 2020 on the file of the Koodankulam Police Station.

The Court proceeded to discuss the issue of regulating online skill games in detail by stating that it felt inclined to do so:

There has been a substantial discussion by the Hon'ble Supreme Court as well as by the High Courts around the Country as to what constitutes a “game of skill” and a “game of chance” and it has been held that where there is substantial degree of preponderance of skill over chance, it is a “game of skill” and vice versa. To be precise, a game of skill is one which involves application of mind, technique and experience by the player, which may include studying the rules, creating strategies, etc. Therefore, this Court feels it appropriate to have a look at the march of decisions rendered by the Hon'ble Supreme Court as well as the various High Courts in this regard. (Para 24)

The Court observed:

To regulate the physical sports/games, we are having a legislative set up, but having such a set up to deal with the emerging online games/virtual games is the need of the hour. A comprehensive regulatory framework by a regulatory body is necessary to regulate the online sports and to curb any illegal activities as well. In fact, such regulation of online sports would encourage investment in the sector, which could lead to technological advancements as well as generation of revenue and employment. (Para 38)

On a concluding note, the Court stated:

Therefore, this Court hopes and trusts that this Government shall take note of the present alarming situation and pass suitable legislation, thereby, regulating and controlling such online gaming through license, of course, keeping in mind the law of the land as well as the judicial precedents in this regard. This Court is not against the virtual games, but, the anguish of this Court is that there should be a regulatory body to monitor and regulate the legal gaming activities, be it in the real world or the virtual world. Needless to say that if the Government intends to pass a legislation in this regard, all the stakeholders should be put in notice and their views should be ascertained. (Para 51)

The Court allowed the petition and quashed the proceedings pending against the Petitioner; consequently, the connected miscellaneous petition was closed.

View/Download Order: D. Siluvai Venance v. State, rep. by The Inspector of Police, Koodankulam Police Station, Tirunelveli.

Jhanavi M