1. This is a reference by the learned Sessions Judge of Bijnor recommending that the convictions under Section 13, Public Gambling Act should be set aside. The learned Judge is of opinion that the place where the accused were found gambling was not a public place within the meaning of the Act. He has quoted some authority but the cases to which he refers are those in which it was held on the facts that the place was not a public place. I have looked at the ruling in Sukhnandan Singh v. Emperor (1922) 9 A.I.R. All. 542. It is there stated:
When the public have access to a place without their access being refused or interfered with, that place is a public place whether the public have a right to go there or not.
2. In the present case the applicants were gambling on the edge of a grove a few paces away from a public pathway and there is nothing to show that the place where they were, was enclosed in any way or that the public were usually excluded from it. I think it must be common knowledge that ordinarily these groves in Indian villages are open to anybody to sit in. There is normally no interference with anybody who wishes to have access to a grove of this kind. The accused per. sons themselves were in the grove and there is nothing to show that they had any connexion with the owners of it or of the fruit or trees in it. They were themselves in the grove as members of the public. I see no reason for interference upon that point. The learned Judge has also suggested that the order by the Magistrate that money found on the Phar should be confiscated to the Government should be set aside. The learned Judge rightly pointed out that Section 13, Public Gambling Act, does not justify the seizure of money. It has certainly been held by this Court that money is not an instrument of gaming within the meaning of that Section. In so far as the Public Gambling Act is concerned, the Magistrate had no authority to confiscate this money. On the other hand however he had authority under the provisions of Section 517, Criminal P.C. This property was in the custody of the Court or had been produced before the Court and the learned Magistrate had to make some order for its disposal. As it was found on the Phar, the Magistrate probably was unable to say to which of the accused it belonged. In these circumstances he was justified under the provisions of the Section in directing that the property should be confiscated. I see no reason to interfere. The reference is rejected.