P.N. Bakshi, J.
1. Sakhawat and five others have been convicted by the I Class Magistrate, Rampur under Section 13 of the Gambling Act and have been sentenced to pay a fine of Rs. 50/- each and in default to simple imprisonment for 15 days. They filed a revision before the District Judge, Rampui who has made a recommendation to this Court for setting aside the conviction and sentence imposed upon them.
2. The case for the prosecution is that at about 1 p.m. on 17-12-1970 the accused were found gambling on the Chabutra of Jee Sukh's Rahat close to a village pathway in village Bexua. It is said that the accused were playing the game of 'Mang Patta' and one of them was demanding a Ghulam (Jack) on a bet of -/8/-. Another accused was dealing the cards. The police party is alleged to have apprehended the accused on the spot and recovered some cash from their person as well as playing cards and cash etc. from the board. The accused pleaded that they were falsely implicated due to enmity with the police and that they were not gambling.
3. As mentioned above, the Magistrate believed the prosecution story on the basis of the evidence of prosecution witnesses Ram Chandra. Noni Ram, Beni Ram and Balbir Singh Yadav Constable. He held that the accused were found gambling at the place alleged by the prosecution. The District Judge has confirmed this finding of the trial Court, and I see no reason to upset this finding of fact on which both the Courts below have concurred.
4. The main question however which arises for determination in this case is whether the accused have committed any offence punishable under Section 13 of the Gambling Act. The uniform testimony of the prosecution witnesses is that the accused were gambling on the Chabutra of Jee Sukh's Rahat situate just a few paces to the south of his Kotha in the field. The witnesses have stated that a pathway runs nearby. A site plan has been prepared in this case. A look at a site plan clearly indicates the position of the Kotha of Jee Sukh, the Chabutra of his Rahat and the patway running north and south of his field in which the Kotha and the Rahat are situate. This field belongs to Jee Sukh and the Rahat and Chabutra where the alleged gambling is said to have beep detected also belongs to him. This place is at a distance from the aforesaid pathway which runs adjoining the field. On these facts the Sessions Judge was of the opinion that the Rahat and the Chabutra which lie removed from the pathway inside the field 'cannot be treated as an open space adjacent to or abutting on the pathway'. He has also expressed the view that a Kachcha village pathway passing through the fields cannot be described as a street. On these grounds, he has made a reference to this Court.
5. I have heard counsel for the parties at considerable length and I am inclined to accept this reference. The relevant portion of Section 13 of the Public Gambling Act 3 of 1867 runs as follows:
A Police Officer may apprehend without warrant any person found gaming in any public street, place or thoroughfare situated within the limits aforesaid or ....
Any person found in any public street or thoroughfare within the limits aforesaid with any instruments of gaming or
Any person there present making preparation for or aiding or abetting such gaming ....
Such person when apprehended shall be brought without delay before a Magistrate and shall be liable
in the case of a first offence to a fine not exceeding two hundred and fifty rupees nor less than fifty rupees, or to rigorous imprisonment for a term not exceeding one month, and
in the case of any subsequent offence to a fine not exceeding five hundred rupees nor less than one hundred rupees and rigorous imprisonment for a term not exceeding six months nor less than one month
Explanation:- For the purpose of this section 'Public place' includes any open space situate adjacent to and abutting a public street and not separated therefrom by a boundary Wall.
6. From a consideration of the above section it is apparent that any person who is found gaming in any public street, place or thoroughfare is liable to punishment under Section 13 of the said Act. The explanation to this section above quoted defines a public place as inclusive of an open space situate adjacent to and abutting a public street and not separated therefrom by a boundary wall. It is not the case of either party that there was any boundary wall at any distance between the field of Jee Sukh and the village pathway. The crucial question for determination is whether the Chabutra of Jee Sukh's Rahat where the accused are said to be gambling would be covered by the explanation 'open space situate adjacent to and abutting a public street'. It cannot be disputed that the word 'Public place' signifies a place to which the public may have access whether as a matter of right or with the permission of the owner thereof. It is a place which is open to every citizen of the State. On the facts of the present case, the Chabutra which was situate in the private field of Jee Sukh cannot be said to be a place where the public has a right to access nor can be said to be a place where the public were permitted to have access. It was situate exclusively within the private property of Jee Sukh. The mere fact that the accused who were playing cards on the Chabutra which was open to public gaze from the village pathway would not convert the Chabutra into a public place. It has been held in Emperor v. Sripal, (1934 All U 360) : (35 Cri LJ 564) that the mere visibility of the gambling place from a public thoroughfare is not sufficient to attract the applicability of Section 13 of the Public Gambling Act.
7. In Queen Emperor v. Sri Lai, ILR (1895) 17 All 166 Court was considering the ambit of the expression 'public place' in connection with an offence under Section 159 of the Indian Penal Code. In that case it appears that the accused were fighting on a Chabutra which was private property adjoining a public thoroughfare. It was held in this case as follows :-
As the Chabutra was not a place to which the public had by right or by permission, or by usage or otherwise, access, we must hold that it was not a public place, although any member of the public walking along the street could walk on to it, but in doing so he would be committing a trespass.
8. In that case, even though the fighting or affray had taken place on a Chabutra which was visible to the public eye yet it was not held that the affray was going on in a public place. I am, therefore, of the opinion that the Chabutra in question where the accused were gambling does not come within the definition of a public place as embodied in Section 13 of the Public Gambling Act.
9. There is yet another reason which strengthens my view taken above. The explanation to Section 13 of the Act makes it clear that the open space should be situate adjacent on to and abutting a public street. The village pathway to my mind cannot be treated as a public street. In Lewis Stroud, Judicial Dictionary, the primary meaning of the word 'street' is a public road way running in front of houses or buildings of a sufficient length and in such a continuous line as to give the roadway the character of a 'street' and such a roadway is more emphatically a 'street' if it has a continuous line of houses on each side of it. The houses need not be actually contiguous but must be so near to each other as to form a continuous line.' This definition of the word 'street' is most explicit. Applying this test a pathway in a village adjoining the fields cannot be deemed to be covered within the expression 'public Street'.
10. In support of the above view, reference may also be made to a decision reported in 8 App Cas 798, George Robinson v. The Local Board for the District of Barton Eccles, Winton and Monton. In that case Earl of Selborne L. C. while considering the definition of the word 'street' observed that.
In the natural and popular sense of the street ... I should certainly understand a roadway with buildings on each side (it is not necessary to say how far they must or may be continuous or discontinuous).
11. In view of what has been expressed above, I have no hesitation in holding that the normal, natural and popular meaning of the word 'street' is a roadway with building standing on either side. In this view of the matter the village pathway would not be covered by the expression 'public street' used under Section 13 of the Public Gambling Act 3 of 1867.
12. For the reasons given above, I hereby accept this reference made by the District Judge, Rampur and set aside the impugned order of the Magistrate convicting the accused under Section 13 of the Gambling Act and imposing a sentence of fine of Rupees 50/- on each of them. The fines if already realized, shall be refunded to the accused.