Sakhawat and five other have been convicted by the I Class Magistrate, Rampur under Section 13 of the Gambling Act and have been sentenced to pay a fine of Rs. 50/- each and in default to simple imprisonment for 15 days. They filed a revision before the District Judge, Rampur who has made a recommendation to this Court for setting aside the conviction and sentence imposed upon them.

2. The case far the prosecution is that at about 1 p.m. on 17-12-1970 the accused were found gambling on the Chabutra of Jee Sukh's Rahat close to a village pathway in village Bexua. It is said that the accused were playing the game of 'Mang Patta' and one of them was demanding a Ghulam (Jack) one a bet of 8, another accused was dealing the cards. The police party is alleged to have apprehended the accused on the spot and recovered some cash from their person as well as playing cards and cash etc. from the board. The accused pleaded that they were falsely implicated due to enmity with the police and that they were not gambling.

3. As mentioned above, the Magistrate believed the prosecution story on the basis of the evidence of prosecution witnesses Ram Chandra. Noni Ram, Beni Ram and Balbir Singh Yadav Constable. He held that the accuse were found gambling at the place alleged by the prosecution the District Judge has confirmed this finding of the trial Court, and I see no reason to upset this finding of fact on which both the Courts below have concurred.

4. The main question however which arises for determination in this case is whether the accused have committed any offence punishable under Section 13 of the Gambling Act. The uniform testimony of the prosecution witnesses is that the accused were gambling on the Chabutra of Jee Sukh's Rahat situate just a few paces to the south of his Kotha in the field. The witnesses have stated that a pathway runs nearby. A site plan has been prepared in this case. A look at a site plan clearly indicates the position of the Kotha of Jee Sukh, the Chabutra of his Rahat and the pathway running north and south of his field in which the Kotha and the Rahat are situate. This field belongs to Jee Sukh and the Rahat and Chabutra where the alleged gambling is said to have been detected also belongs to him. This place is at a distance from the aforesaid pathway which runs adjoining the field. On these facts the Sessions Judge was of the opinion that the Rahat and the Chabutra which lie removed from the pathway inside the field "cannot be treated as an open space adjacent to or abutting on the pathway". He has also expressed the view that a Kachcha village pathway passing through the fields cannot be described as a street. On these grounds, he has made a reference to this Court.

5. I have heard counsel for the parties at considerable length and I am inclined to accept this reference. The relevant portion of Section 13 of the public Gambling Act 3 of 1867 runs as follows :

"A Police Officer may apprehend without warrant any person found gaming in any public street, place or thoroughfare situated within the limits aforesaid or .........

"Any person found in any public street or thoroughfare within the limits aforesaid with any instruments gaming or

Any person there present making preparation for or aiding or abetting such gaming ..........

Such person when apprehended shall be brought without delay before a magistrate and shall be liable in the case of a first offence to a fine not exceeding two hundred and fifty rupees, nor less than fifty rupees or to rigorous imprisonment for a term not exceeding one month, and in case of any subsequent offence to a fine not exceeding five hundred rupees nor less than one hundred rupees and rigorous imprisonment for a term not exceeding six months not less than one month

Explanation :- For the purpose of this section "Public place" includes any open space situate adjacent to and abutting a public street and not separated therefrom by a boundary wall."

6. From a consideration of