1. This is an appeal against the acquittal of the respondents, who were charged under Section 12, Bombay Prevention of Gambling Act as adapted and applied to Saurashlra, for gambling in a room of a hotel at Rajkot, known as the Mahavir Lodge owned by respondent 1, on the night of 31.8.1950. The defence was that the said room No. 14 in which the accused were alleged to have been found gambling was reserved for Maganlal Girdharlal, respdt. 4 & was in his exclusive occupation, and it was not, therefore, a place to which the public have or are permitted to have access, as contemplated by Section 12, and that no offence was committed. On the facts also it was denied that the respondents were gambling with cards, and it was stated that they were playing an innocent game of cards knwon as 'chhakdi' when the police raided the said room No. 14. The learned Magistrate upheld both these contentions and acquitted the accused.
2. In appeal, the learned Advocate General has urged that a lodge or a hotel is essentially a place to which the public have a right to go and the public can be said to have or are permitted to have access to such a place. He urged that the fact that one of the rooms, thereof was reserved or let exclusively to a lodger does not make any difference, add that it does not remove it from the category of the place stated in Section 12. The learned Advocate General argued that the test is the general accessibility of the place to the public, and not that a portion thereof is temporarily not available to the public by reason of its being occupied by a lodger. We are unable to accept this contention. The public no doubt have a general right to go to a hotel but that is provided there is accommodation and not otherwise. If any room in a hotel is occupied or is in the exclusive occupation of a lodger, then surely the public cannot claim a right to go to the said room, and the room in that case cannot be deemed to be a 'place' within the meaning of Section 12. The test is can the public claim to occupy or to have access to a room which is already in the exclusive occupation of another lodger and can the owner of the hotel or the occupant of the room not refuse admission or access to the room? The answer is obvious, and it is that they can refuse. Therefore in this case the public can be said to have or are permitted to have access to the place provided it was available.
3. The learned Advocate General also contended that the place contemplated by Section 12 is the entire place, in this case the Mahavir Lodge as a whole, and that even if room No. 14 happened to be occupied at the material time, the hotel will still be a place to which the public have or are permitted to have access. This contention too is not correct. The alleged gambling was going on in room No. 14 and it was that room, which was treated as the 'place' from which the police officer might apprehend and which he might search without a warrant. The police officer will have no right to enter or search any other part of the hotel without a warrant. It is plain therefore that the place, within the meaning of Section 12 is room No. 14 and not the Mahavir Lodge as a whole.
4. Our view that a hotel can be deemed to be a place to which the public have or are permitted to have access provided there is accommodation finds support from - Mangubhai v. Emperor AIR 1930 Bom 369 (A). The earlier' Bombay decisions, which dealt with the expression 'public place' as occurred in Section 12 before it was amended, were there considered and it was held that a hotel can be said to be a place within the meaning of Section 12, provided there was accommodation available in it. In the present ease the place, namely room No. 14, was not accessible to the public inasmuch as it was given exclusively to respondent 4. The learned Magistrate was, therefore, right in holding that Section 12 did not apply to this case, and in acquitting the accused on this ground. In this view it is unnecessary to enquire into the merits of the case. In the result we confirm the order of acquittal and dismiss this appeal.
5. Baxi J.