1. The finding is that the 'gaming' took place in a vacant site belonging to the seventh accused adjoining a public street.
2. The Deputy Magistrate held that this did not constitute an offence punishable under Clause 10 of Section 3 of Act No. III of 1889 (Madras), which makes punishable gambling or cock-fighting in any 'public street, road, thoroughfare or place of public resort.' In thus holding the Deputy Magistrate is no doubt right. But he proceeded to find the first and seventh accused (the only appellants in the case), respectively, guilty of offences punishable under Sections 7 and 6 of the Act, the latter of which renders liable to punishment any person who 'opens, keeps or uses or permits to be used any common gaming house,' while the former makes punishable any person 'found gaming or present for the purpose of gaming in a common gaming house.' The Deputy Magistrate refers to the definition of 'common gaming house' as contained in Madras Act III of 1888, and, as it contains the word 'place' holds it wide enough to include any 'vacant site.' It is clear that the word 'place' in the definition in question must be read with the words immediately preceding, namely, 'enclosure, room or place.' It clearly means some 'enclosed' place. Even assuming, therefore, that the definition in Act III of 1888 can be used for the purposes of Act III of 1889, the site in question cannot be held to be a common gaming house.'
3. All the convictions in both the Courts are set aside and the fines levied will be refunded.