1. The petitioner was charged with gaming in contravention of Section 12 of Bombay Act IV of 1887, which covers the case of any person found gaming in any public street, or thoroughfare, or in any place to which the public have or are permitted to have access, or in any race course. The allegation against him was that he was found by the police accepting Ank Satta bets in Cavel street. A police constable gave evidence that the accused was sitting on a chair which was half in and half outside of a shop; that persons, who staked money with him, did so from the road; that he accepted the money and passed it to another person who was inside the shop, registering the names of those who staked the money. The constable went up and arrested him after he had just accepted a bet from a man, who was accused No. 2 in the case. The petitioner immediately threw down the money he had so received, and it was subsequently found on the road. Another police constable supported the former witness, except that he stated that accused No. 1 was not sitting on a chair but on the ota of the shop with his legs on the road. This discrepancy, the judgment says, was wiped out by the evidence of a defence witness, who said that the petitioner was sitting on a chair; and the Bench of Magistrates held that he was sitting more outside of the shop than inside, and that in any case his position in regard to the shop was such as to be readily accessible to those he wished to bet, without their having to enter the shop at all. Accordingly holding that he was gaming by accepting Ank Satta bets, they convicted him and sentenced him to pay a fine of Rs. 150.
2. The applicant's contention is that in the circumstances he was not gaming in a public street, or in a place to which the public had or were permitted to have access, within the meaning of Section 12. We have been shown a photograph of the shop, which strictly speaking, is not evidence in the case, but it helps to show that the shop was in no way separate from the public road and that a foot-path runs immediately below the plinth of the shop. It may be that, according to the photograph, it would not be possible for the accused to have sat on a chair partly inside the shop and partly outside the shop. But at any rate it does not conflict with the finding of the Magistrate that the accused was sitting in the shop at a place where he was readily accessible to any person who wished to bet with him from the public street without having to enter the shop at all. That is a finding of fact which must be accepted as correct for the purpose of deciding this case in revision. Mr. Thakor for the petitioner has referred us to two authorities in support of his contention, The first of these is Emperor v. Chennappa (1912) 15 Bom. L.R. 101 where the accused were found playing for money with cards in a Math, which was enclosed in a compound wall and off the highway. It was managed by a Swami of the Lingayat community and was open to all Lingayats and to other castes, subject to certain restrictions. The Swami could, if he chose, keep the people out. Under these circumstances it was held that the Math could not be regarded as a public place within the meaning of Section 12 of this Act. But it is to be noted that the section that was construed in that case appears from the report to have been the section as it used to stand before it was amended in 1910, and when the words were 'in any public street, place or thoroughfare.' This is borne out by the fact that the reference by the District Magistrate in that case, which was concurred in by the High Court, relied upon Emperor v. Hussein Noor Mahomed (1905) 8 Bom. L.R. 22 which dealt with the section as it was formerly worded. The words 'in any place to which the public have or are permitted to have access' are obviously wider than are the words 'public place' read with the connecting words 'public street or thoroughfare.' The same remarks apply to the other case of Durga Prasad Kalwar v. Emperor I.L.R. (1904) Cal. 910 for the Bengal Gambling Act, Section 11, referred to in that decision uses the same expression 'public place.' Consequently, those two authorities do not really assist us in the present instance, On the other hand, the learned Government Pleader has drawn our notice to a case mentioned in Velinker's Law of Gaming and Wagering, 3rd Edition, page 250, which is stated as follows :-
A book-maker stood on a railway abutting on a street but separated from the street by a fence, and, leaning over, be stretched his hand over the fence and took a bet from persons in the street. Held, he was rightly convicted of conducting business of any kind in lotteries, betting or gaming in a street, though the word by its definition in the Act was expressly made not to include a place forming part of a Railway. Queen v. Wilson (1910) 47 Sc. L.R. 468 .
3. That case, certainly, supports the view that, although a person may be on a private premises, yet if he stands of sits so as to be able to take bets from the public in a public street, he can be held to be actually betting or gaming in that street. The circumstances here; as found by the Magistrates, render it almost certain that the accused did in fact accept money from persons wishing to bet by taking it in his hand outside the front of the shop and so in the air space above the public street, and in that view there would be gaming in a public street. But even apart from that he would, in my opinion, be gaming in a place to which the public had access, for the whole object of his sitting there was to be accessible to persons wishing to bet from the public street, and his action, in my opinion, comes within the offence contemplated by Section 12. It would be different if he and some others had simply been playing cards for money in the shop. Such a case would not perhaps come within this section, unless at any rate it was so openly done, as to come within the evil aimed at by the section, according to the view taken in Emperor v. Jusubally (1905) 7 Bom. L.R. 333 . But here the whole object was to carry on open gaming with any members of the public coming up to him in the street, and, in my opinion, he was, therefore, rightly convicted.
4. We see no reason to interfere.
5. I agree.