P. Govinda Menon, J.
1. The State has filed this appeal against the judgment of the District Magistrate. Kottayam acquitting the respondents (accused) who were tried and convicted by the Sub-Magistrate, Kottayam for an offence under Section 8 of the Kerala Gaming Act (shortly stated the Act) On 8-8-65. P W 1, a head constable attached to the Kottayam East Police Station found the respondents and two others engaged in a play called 'Pareelu', a game of chance in the compound of one Kalavil Gopalan Asari. The first respondent Scaria was arrested on the spot, but the others made good their escape. A sum of Rs 1.33 and the playing cards MO 2 series were recovered from the scene under a mahazar Ext. P-2. P. W 3 another police constable who was present with P. W 1 and P. W. 2 another independent witness have given evidence corroborating the evidence of P W 1 that they were engaged in gambling.
2. It cannot he disputed that the respondents were seen playing cards for money and from the evidence of the witnesses, not seriously challenged in cross-examination, they were 'gaming'. The contention is that even then it would not amount to an offence under Section 8 of the Act. The question for decision is whether 'gaming' in a private properly like the one in this case would constitute an offence Learned District Magistrate accepted the contention that the private compound of Gopalan Asari cannot be said to be a place to which Section 8 of the Act would apply and acquitted the accused.
Section 8 of the Act reads:
'Whoever is found gaming or present for the purpose of gaming in a common gaming house shall, on conviction, be liable to fine not exceeding two hundred rupees or to imprisonment not exceeding one month, and any person found in any common gaming house duringany gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.'
So the question arises whether in the first place that compound could be said to be 'a common gaming house'; and secondly whether there is any proof that the place was being used for the profit or gain of the person owning it From the definition of 'common gaming house' it would appear that the place referred to in the section must be akin to a house, room, tent, enclosure, vehicle or vessel and it must have been kept, used, etc., for gaming and for the profit or gain of the person owning, occupying etc. There can be no doubt that the compound where the accused were foundgaming will not come within the meaning of the term 'common gaming house' and that being so the conviction under Section 8 is not maintainable.
3. The further question it whether the accused could be found guilty under Section 15 of the Act. Section 15 makes gaming in any public street, road or thoroughfare or in any place to which the public have or are permitted to have access an offence. The question is whether the paramba in which the petitioners were gambling is a public place within the meaning of Section 15 of the Act.
The law on the subject has been succinctly laid down in Queen v. Wellard, (1884) 14 OBD 68, the principle enunciated in that case is that a place is a public place though it is a private property when it is shown that the public are in the habit of resorting to it and no one is prevented therefrom so resorting to it. This principle was followed in a number of cases by almost all the High Courts.
Following this decision it was held in Emperor v. Govindarajulu, ILR 80 Mad 886: (AIR 1916 Mad 474) that a legal right to access by the public is not necessary to constitute a public place and that a public place is one which is resorted to by the public whether they have a right to go or not. It was held in that case that persons who were found guilty of disorderly behaviour in the harbour remises could be convicted for an offence under Section 76, Madras City Police Act, as the larbour premises constitute a place of public resort.
In Baburam v. Emperor, AIR 1927 All 560 Sulaiman, J., dealing with the question whether a place was a public place within the meaning of Section 18, Public Gaming Act, which corresponds to Section 12, Madras flaming Act, held that a vacant land which was private property and surrounded on three sides by fields and on the fourth by a stream was not a public place. In the course of the judgment the learned Judge observed that:
'a place to which the public had not by right, permission, usage, or otherwise, access could not be a public place even though it were close to a public street so that any member of the public walking alone the street could see what was going on there.
It was further stated there that it must be a place either open to the public or actually used by the public, the mere publicity of the situation not being sufficient.
In Ahmad Ali v. King Emperor, (1904) 1 All LJ 129 it was held that a private grove was not a public place although people could pass through it while going to the bazaar its boundary wall being broken at place.
To the same effect is the decision in Ramjank Patwa v. Emperor, AIR 1937 Pat 276, where also it was held that gambling in a bamboo grove, a plate where two footpaths meet, was not a public place within the meaning of the Bengal Public Gambling Act.
Similarly, in the case. In re, Unna Muhammad, AIR 1938 Mad 74 it is laid down that gambling in a tank bed is not an offence under Section 12, Madras Gaming Act because.
'The word 'place' in Section 12 means from its context a place akin to a street or thorough fare used regularly and necessarily by people going from one place to another and that the real offence dealt with in Section 12, Madras Gaming Act, is obstruction or annoyance to wayfarers and pedestrians.'
The learned Judge followed a ruling of a Bench of the Bombay High Court in Emperor v. Hussein, (1906) ILR 30 Bom 348 which laid down that a railway carriage forming part of a through special train was not a public place within the meaning of Section 12, Prevention of Gambling Act.
It was pointed out in Emperor v. Jasub Ally, (1905) ILR 29 Bom 386 that the gist of the offence under Section 12, Bombay Prevention Of Gambling Act which corresponds to Section 12, Madras Gaming Act consists in individuals carrying on their gambling with such publicity that the ordinary passer-by cannot well avoid seeing it and being enticed if his inclination lie that way--to join in or follow the bad example openly placed in his way. It was held that the accused who carried on gambling in a boat chartered for that purpose and anchored in Bombay Harbour a mile away from the land had not committed an offence under Section 12 of that Act.
J. Raghunadhu v. Emperor, 1938 Mad WN 1422 is yet another case where it was laid down that the pial of a private residence is not a public place though it is alongside a public road and accessible from it.
One of the other cases to which reference may be made is the case In re K. Satyanarayana Raju, AIR 1950 Mad 729, where Chandra Reddi, J., (as he then was) has reviewed the entire case law.
4. It is unnecessary to multiply decisions on this point. The principle deducible from all these decisions is that in order to constitute a public place it is not necessary that the place should be a public property, but if it is a private properly it must be proved that not only the public could have access to it but it is a place to which members of thepublic in fact resort. All that the prosecution has proved in this case is that the accused were seen playing in a compound by the sideof the temple. Prosecution has not establish-ed that the public were as a matter of fact frequenting that place and were in the habit of indulging in gambling. It has therefore, to be held that the, petitioners are not guilty of the offence under Section 16 of the Act also. The order of acquittal is, therefore, unassailable.
The appeal filed by the State is, therefore,dismissed.