Chandra Reddi, J.
1. The petitioners in this case were convicted under Section 12, Madras Gaming Act, and sentenced to pay a fine of Rs. 15 each and in default to undergo simple imprisonment for one week each by the Stationary Sub-Magistrate, Bhimavaram. It was also ordered that the sum of Rs. 251-13-3 seized by the police should be confiscated. On appeal the Sub-Divisional Magistrate confirmed the conviction and sentence passed on the petitioners. The case against the petitioners is that on the night of 13th February 1949 the petitioners were found playing cards for money by the Station House Officer who was examined as a prosecution witness, in a dilapidated house belonging to D. W. 1.
2. The Courts below held that the house wherein the petitioners were gambling was a public place within the meaning of Section 12, Gaming Act because it was a dilapidated house by the side of a road in a conspicuous place and there was a killi shop by the side of it and therefore the accused were guilty of an offence under that section.
3. It is not disputed that the petitioners were caught while playing cards for money on the night of 13th February 1949, bat the main contention raised on behalf of the petitioners is that an offence under Section 12 was not committed by them as the place where they ware gambling is not a public one within the meaning of that section. Section 12, Madras Gaming Act provides that:
'Whoever is found gaming with cards, dice, counters, money or other instruments of gaming in any public street place or thoroughfare or publicly fighting cooks, shall be liable on conviction to fine not exceeding fifty rupees or to imprisonment not exceeding one month; and such instruments of gaming and money shall be forfeited.'
4. The simple question that falls to be decided in this case is whether the house in which the petitioners were gambling with cards is a public place within the meaning of Section 12 of the Act. It is in evidence that though the house is a dilapidated one it is surrounded on all sides by compound walls and that people could not have access to the building without the permission of the owner thereof. Can it be said therefore that the house is a public place by reason of the fact that it is a dilapidated one just by the side of a road and that there is a killi shop nearby ?
5. Reliance was placed by Mr. Satyanarayana Raju appearing for the petitioners in this revision on In Re: Unna Muhammad : AIR1938Mad74 . It is laid down there 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 thoroughfare, 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, 30 Bom. 348: CrI. L. J. 216 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.
5a. It is pointed out in Emperor v. Jasub Ally, 29 Bom. 386: Cri. L. J. 252 that the gist of the offence under Section 12, Bombay Prevention Gambling Act which corresponds to Section 12, Madras Gaming Act consists in individuals earring on their gambling with such publicity that the ordinary passer-by car not well avoid seeing it and being enticed if his inclinations 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.
6. Another decision cited to ma by Mr. Satyanarayana Raju is the one in Jamulu Raghunadhu v. Emperor. 1933 M.W.N. Cri. 226 : 1933 M. W. N. 1422, where it is 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. This decision has not got much of bearing on the point to be decided by me.
7. The law on the subject has been succinctly laid down in Queen v. Wellard, (1885) 14 Q. B. D. 63: 54 L. J. M. C. 14. The principle enunciated in that case 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 ore is prevented therefrom so resorting to it. This principle was followed in a number of cases by almost all the High Courts.
8. Following this decision it was held in Crown Prosecutor v. Govidarajulu, 39 Mad. 886 : A I.R. 1916 Mad. 474 : (1916) 16 Cri. L. J. 704, that a legal right of 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 barbour premises could be convicted for an offence under Section 75, Madras City Police Act, as the harbour premises constitute a place of public report.
9. In Emperor v. Musa, 40 Mad. 556: A.I.R. 1917 Mad. 124 : (1917) 18 Cri. L. J. 7, the same principle has been laid down. In this case the question that arose for consideration was whether the open space within the compound of a Hindu temple in the town of Coimbatore was a public place within the meaning of Section 3(10), Madras Towns Nuisance Act. Old field and Sadasiva Ayyar JJ. who constituted the Bench answered the question in the affirmative.
10. In Emperor v. Baburam : AIR1927All560 . Sulaiman J. dealing with the question whether a place was a public place within the meaning of Section 13, Public Gaming Act, which corresponds to Section 19, Madras Gaming 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 along 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 Ahmed Ali v. King Emperor, 1 A. L. J. 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.
11. Another decision that followed the ruling in Queen v. Wellard, (1885) 14 Q. B. D. 63: 54 L. J. M. C. 14, is Ramjank Patwa v Emperor, : AIR1937Pat276 . It was laid down there that gambling in a bamboo grove, a place where two foot-paths meet, was not a public place within the meaning of the Bengal Gambling Public Act. It is unnecessary to multiply decisions on this point. The principle deducible from all these decisions isthat in order to constitute a public place within Section 12, Gaming Act, it is not necessary that the place should be a public property, but if it is a private property it must be proved that not only the public could have access to it, but it is a place to which members of the public in fast resort.
12. Applying the principle laid down in all these cases I must hold that the dilapidated house in which the petitioners were playing for money is not a public place within the meaning of Section 12 of the Act. All that the prosecution has proved in this case is that it was an abandoned house by the side of the road and that there was a small betel-leaf shop nearby. The prosecution has not established that the public were as a matter of fact frequenting that place; on the other hand the testimony of the owner of that house is that his permission was sought to enter the house and it was not disbelieved by the Courts below. It is also in evidence that the house is surrounded by compound walls on all sides. I therefore hold that the petitioners are not guilty of an offence under Section 12, Madras Gaming Act and therefore they are entitled to an acquittal. The conviction and sentence passed on the petitioners are set aside and the fines if paid will be refunded to them. The order of confiscation of the money seized from the petitioners is also vacated. The money seized from the petitioners will be returned to them.