1. The petitioners in this case have been convicted under Section 11 of the Bengal Gambling Act, and sentenced to a fine. The question raised before me is whether the place where the gambling took place is a public place within the meaning of the said section. It appears, upon the map filed in this case as also upon the evidence, that the place where the gambling was held is an osara, which is enclosed on all sides, there being, however, doors opening towards the road, and there being what is called a platform between the said osara and the road. The place in question is a part of a building, which is the private property of certain individuals. It is used during the day as a shop, but not so in the night; and the gambling in question took place after midnight on a certain day. It appears that people were standing on the roadside and looking at the game that was going on inside the room. Some of these people, and others, who were standing inside the osara, were arrested; and they have all been found guilty of the offence of gambling.
2. I do not understand how the person's who were standing on the roadside and looking at the game, but were arrested, could be convicted, there being no distinct evidence proving that they took any real part in the gaming. However that may be, having regard to the evidence as to the place where the gambling actually took place, I am unable to find that it is a public place within the meaning of Section 11 of the Gambling Act. See two cases of this Court, References No. 24 See foot-note and 25 Unreported Reference No. 25 of 1894 of 1894 and the case of Khudi Sheikh v. The King Emperor (1902) 6 C.W.N. 33. I accordingly set aside the conviction and sentence and make this Rule absolute. The fine, if paid, will be refunded.