Lawrence Jenkins, K.C.I.E., C.J.
1. The accused in this case have been convicted as being persons found playing for money against the provisions of Section 12 of the Bombay Prevention Gambling Act 1887 in a railway carriage forming part of a through special train running between Poona and Bombay.
2. The only question is whether it was in a public place that the accused were so playing. This depends on the meaning the word 'place' has in Section 12 of the Act. The word 'place' is, I think, qualified by the word 'public' and having regard to its context and its position in that context, it must, in my opinion, mean a place of the same general character as a road or thoroughfare, else it was pointle (sic) to use the words street or thoroughfare as they are there used To the Railway track as such the public have no right of access except as passengers in the Company's train. Therefore I need not seriously consider the suggestion that the accused were found playing in a public place, because the carriage in which they were playing was on the railway track. To support the conviction it must be shown that the railway carriage was a public place of the same general character as a public street or thoroughfare. I would be slow to place on the section an interpretation that would curtail its legitimate scope, but I am unable to regard the railway carriage, in which the accused were, as possessing such characteristics of, or bearing such a general resemblance to, a street or thoroughfare as to justify us in holding that it was a public place within the meaning of Section 12 of the Act, with which alone we are concerned.
3. The conviction and sentence must therefore be set aside and the fine, if paid, refunded.
4. In this case the accused were charged and convicted of the offence of gambling in a Special Race Train on the way from Poona to Bombay on the 2nd day of September 1905. The train was a second class one and the Police made their raid on it at what is well known as the ' Reversing Station' between Khandala and Karjat. The game they were playing was one known as Heart Crown and Anchor and it was not disputed before us that they were gambling.
5. The only question is were the accused gambling in ' a public street, place or thoroughfare ' within the meaning of Section 12 of the Bombay Gambling Act.
6. In the Court below and before us the case was argued as if the only point was whether the carriage, in which the accused were, comes within those words in the Section. But it appears to me that there are two questions involved.
1. Was that part of the railway line on which the train was where the accused were arrested, ' a public street &c.;'
2. Was the carriage in which the accused were playing ' a public street, place or thoroughfare.'
7. I propose to deal with these two points in their order.
8. If either of these questions is answered in the negative the conviction is (sic) and must be set aside. ?
1. In my opinion Mr. Branson was correct in saying that the adjective 'public' applies to all the three nouns-street, place or thoroughfare and it is clear that the railway line ceitranly cannot be described as a ' public street or thorough fare' inasmuch as it is not and cannot be used by the public in the same way as they are in the habit of using ' public streets ' and ' thoroughfares.
Railway Act IX of 1890, Section 122, provides inter alia ' if a person unlawfully enters upon a railway, he shall, be punished with fine which may extend to 20 Rs.' and 'unlawfully ' seems to mean without the leave of the railway administration : see the second clause of this Section. Section 125 provides a penalty when the owner or person in charge of any cattle permits them to stray on a railway provided with fences suitable for exclusion of cattle. Section 13 provides for the railway administration putting up (a) boundary marks or fence, (b) works in the nature of a screen near to or adjoining the side of any public road for the purpose of preventing danger to passengers on the road by reason of horses or other animals being frightened by the sight or noise of the rolling-stock moving on the railway; (c) provides for the erection of suitable gates, chains, bars, stiles or hand rails where a railway crosses a public road or the level and (d) provides for the employment of persons to open or shut such gates, chains or bars. These provisions, in my opinion, clearly show that the Legislature did not intend the premises of a railway to be public and therefore it is impossible to describe the railway line and the ground adjoining it between the places as either a public street place or thoroughfare. This view is borne out by the case of Imperatrix v. Vanmali and Ors. ILR (1896) Bom. 525, where a company which owned a mill on the one side of the B.B. & C.I. Railway and a ginning factory on the other, and whose servants had entered on the railway premises without permission of the Railway Company to repair a pipe (which had been laid beneath the railway line) and reservoirs (built on each side to preserve proper the level of water), and it was held by this Court that as the pipes and reservoirs belonged to the mill company and were kept in repair by them, they as owners of the dominant tenement, had a right to enter on the premises of the railway company, the owners of the servient tenement, and effect any necessary repairs, and that the entry in question being in the exercise of that right, could not be called unlawful. The Magistrate in this case had convicted the accused under Section 122 of the Railway Act (IX of 1890) and sentenced them to a fine of four annas each. Parsons J. in delivering his judgment observed : 'But it appears to us that as the pipe and reservoirs belong to the (mill) company, and are kept in repair by them, they as the dominant owners would have a right to enter on the premises of the Railway company, the servient owners, to effect any repairs that might be necessary. See the Indian Easement Act, Section 24, and Illustration (a) and Oolebeck v. Girdlers Company (1876) 1 Q.B. D. 234. The evidence shows there was such necessity at this time, the flow of the water through the pipe being stopped. An entry in exercise of a right, cannot be called unlawful'. From this case it follows that an entry upon railway premises not in exercise of a right or by permission of the railway administration would be unlawful : compare Foulger v. Steadman (1872) L. R. 8 Q. B. 65 where a cab driver was held not justified in refusing to leave the Railway company's premises when requested on behalf of the company to do so although he believed himself entitled to remain thereon because other drivers did so on payment of certain sums to the Railway company.
It would be impossible for the railway company to work its lines were we to hold that the public should have access to them inside the fences without the permission of the company. The place at which the accused were caught gambling, viz. the Reversing station (at which from the evidence it is clear the train stopped for engine purposes only) was not a place generally accessible to the public, who would not have any right without the permission of the railway company to be on the line at all.
2. The next point to consider is whether the Race Train in which the accused were caught at the Reversing Station was a ' public place '.
9. Looking at all the circumstances under which the train was being run and the evidence of Mr. Muirhead I am of opinion that it was not. It was a Special train-not bound to run unless a sufficient number of passengers applied, it took no passengers in between Poona and Bombay, and I can not think that it would be described as a train for the 'public' carriage of passengers. At the same time a good deal of the evidence that was given was irrelevant, the point to be decided being whether the train at that place, i. e. the Reversing Station could be called a ' public place '. What it might be at other places between Poona and Bombay seems to my mind irrelevant.
10. Several cases were referred to in course of the argument. The first was Langrish v. Archer (1882) 10 Q.B.D. 44 where it was held that the railway carriage while travelling on its journey was an 'open and public place ' or ' an open and public place to wnich the public have or are permitted to have access '.
11. Now if the words in the statute before us were the same as in that, of course the accused would have been rightly convicted, but in the statute there referred to (36 & 37 Vic. c. 38), the words used are ' open place to which the public have or are permitted to have access. ' The judgment of Lord Coleridge shows that if these words had not been used the decision would have been the other way.
12. In Ex parte Freestone (1856) 25L. J. M.C. 121 the prohbition (St. 5 Geo. IV, c. 83, Section 4) was from playing or betting ' in any street, road, highway or in any other open or public place ' and the conviction alleged that the defendants played in an open and public place, to wit, a third class carriage used on the L.B. and S.C. Railway. It was held that the conviction could not be supported as it did not appear that the carriage was then used for the conveying of passengers. There Alderson B. says 'these convictions ought to be framed strictly within the words of the Act, the object of which was to prevent nuisances and gambling in the public highways. ' It was also held that it was consistent with the conviction that the offence might have taken place in the third class carriage which although occasionally used on the Railway was then shunted away in the yard. There however the words used ' other open and public place, ' appear to me to distinguish that case from the present one.
13. In Emperor v. Jusab Ally ILR (1905) Bom. 386 : 7 Bom. L.R. 333 Mr. Justice Batty who delivered the judgment says at page 389, referring to 36 & 37 Vic. c. 38 and Section 12 of the Bombay Gambling Act: ' In these two enactments, however, the offence is not that the individual members are making a profit at all, but simply that they are carrying on their gambling with such publicity that the ordinary passer-by cannot well avoid seeing it and being enticed-if his inclinations lie that way-to join in or follow the bad example openly placed in his way. In the one case comparative privacy for profit, in the other the bad public example and accessibility to the public, would seem to constitute the gravamen of the offence. Thus the very fact that special accommodation and privacy had been furnished which would be essential in a case under Section 4 of the Bombay Gambling Act, would be a ground for excluding the case from the purview of Section 12. If people gratuitously allow gambling on their private premises, the law does not interfere With them, presumably because in that case they . have no special inducement to tempt outsiders to join them. The law does interfere, however, if, whether for private gain or not, they expose temptation where the general public have a right to come. '
14. In Khudi Sheik and Ors. v. King Emperor (1901) 6 C.W.N. 88 it was held that the word 'place' as used in Section 11 of the Gambling Act, (Bengal Code, 2 of 1867) must be a public place and was ejusdem, generis with the other words in the section, public market, fair, street or thoroughfare. Consequently a Thakurbari surrounded by a high compound wall is not a public place as contemplated by that section. In that case the learned Judge says :-' The place must be of the same character as public market, fair, street or thoroughfare.
15. ' Now the gambling in this case took place within a Thakurbari surrounded by a high compound wall. It is not a place where any member of the public is entitled to go. The Sub-Divisional Magistrate, who convicted the accused, has held that it is a public place because ' anybody and everybody was allowed to go in and come out.' The ground, as stated by the Magistrate, cannot be supported. Though in a Thakurbari belonging to a Hindoo anybody and everybody would be allowed to go in, yet the owner of the Thakurbari is entitled to prevent any particular individual going in if he so chooses and as a matter of fact men who are not Hindoos are not allowed to go into a Thakurbari.' See also Durga Prasad v. King Emperor (1904) 8 C.W.N. 592. I am therefore of opinion, taking the object of the section before us to be what Mr. Justice Batty says it is, the mischief aimed at by that section cannot possibly be said to have risen in the present case. The second class carriage in a Special train in which the accused were playing cannot in my opinion be considered to be a 'public place' within the meaning of the Act. To get to that carriage it would be necessary to trespass upon the line unless the person so doing had permission from the Railway Company to cross the line. It is well-known that persons standing on the line could not possibly see into the carriages in which these people were gambling.
16. Under these circumstances I am of opinion that to call or describe either the railway line at the spot in question or the carriage in which the accused were playing as coming within any of the terms, 'public street, place, or thoroughfare ' would be to place a wrong interpretation upon those words.
17. For these reasons I am of opinion that the conviction recorded and sentence passed upon the accused must be set aside. Fine, if paid, to be refunded.