JUDGMENT :- 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 S. 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 be 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 S. 8 of the Act. The question for decision is whether 'gaming' in a private property 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 S. 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 during any 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 found gaming will not come within the meaning of the term 'common gaming house' and that being so the conviction under S. 8 is not maintainable.

3. The further question is whether the accused could be found guilty under S. 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 S. 15 of the Act.

The law on the subject has been succinctly laid down in Queen v. Wellard, (1884) 14 QBD 63. 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 39 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 premises could be convicted for an offence under S. 75, Madras City Police Act, as the harbour premises constitute a place of public resort.

In Baburam v. Emperor, AIR 1927 All 560 Sulaiman, J., dealing with the question whet

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