Gaming in a abandoned and dilapidated house an offence.

The petitioners in this case were convicted under section 12 of the 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.

The Courts below held that the house wherein the petitioners were gambling was a public place within the meaning of section 12 of the 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.

It is not disputed that “the petitioners” were caught while playing cards for money on the night of the 12th February, 1949, but 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 were gambling is not a public one within the meaning of that section. Section 12 of the 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 cocks, 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.”

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?

Reliance was placed by Mr. Satyanarayanaraju appearing for the petitioners in this revision on, In re Unna Muhammad1. It is laid down there that gambling in a tank bed is not an offence under section 12 of the 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 of the Madras Gaming Act is obstruction or annoyance 10 wayfarers and pedestrians."

The learned Judge followed a ruling of a Bench of the Bombay High Court in Emperor v. Hussain2, 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 of the Prevention of Gambling Act.

It is pointed out in Emperor v. Jusub Ally3, that the gist of the offence under section 12 of the Bombay Prevention of Gambling Act which corresponds to section 12 of the Madras Gaming Act consists in individuals

‘‘carrying on their gambling with such publicity that the ordinary passer-by cannot 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 at 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.

Another decision cited to me by Mr. Satyanarayanaraju is the one in Jamulu Raghunadhu v. Emperor4, where it is laid down that the pial of a private residence is not a public place though it is along-side a public road and accessible from