ORDER :- This is a reference by the learned Sessions Judge of Mathura recommending that the convictions and sentences passed upon the accused persons under Section 13 of the U.P. Public Gambling Act be set aside.

2. It appears that the case was started by a Magistrate as a summary trial. He examined some witnesses but before he could finish the case he was replaced by another Magistrate. The accused did not demand a de novo trial and the learned Magistrate proceeded to conclude the trial of the case. He examined the defence witnesses and, after considering the notes of evidence recorded by his predecessor, convicted the applicants and sentenced them to fines. No doubt, a Magistrate may under the law, if not objected to by the accused, proceed with a case which has been begun by another Magistrate and take into consideration the notes of evidence recorded by that Magistrate. But in a summary trial no record of evidence is maintained. But the Magistrate may, for his own convenience jot down some notes of evidence. Obviously such notes cannot be suitably used by another Magistrate who may subsequently be entrusted with the trial of the case, and in my opinion the conviction by the Magistrate based as it was on the notes of the evidence of witnesses who were examined before his predecessor was not in order.

3. Another point taken by the learned Sessions Judge is that the place was not a public place and that, therefore, the accused could not be convicted under Section 13. Section 13 makes it an offence to game in any public street, place or thoroughfare. In this case, as would appear from the charge sheet submitted by the police, the gaming was taking place in an arhar field on the road side, and it also appears to be so from the notes of evidence recorded by the Magistrate.

4. The question is whether the accused persons can be said to have committed an offence under Section 13. It is argued on behalf of the applicants that the field cannot be described as a public street, place or thoroughfare. No doubt, a public street, place or thoroughfare is not necessarily a street, place or thoroughfare where the public has a right to go or which the public has a right to use. If a street, place or thoroughfare is in fact used by the public, it will be a public street, place or thoroughfare within the meaning of that section.

On behalf of the State I have been referred to the case of - Emperor v. Balm Singh, AIR 1938 All 209 (A). In that case the accused persons were found gaming on the edge of a grove a few paces away from the public pathway, and there was nothing to show that the place was enclosed in any way or that the public were usually refused access to or excluded from it. The case was decided by Mr. Justice Allsop and ha observes :

"I think it must be common knowledge that ordinarily these groves in Indian villages are open to anybody to sit in. There is normally no interference with anybody who wishes to have access to a grove of this kind. The accused persons themselves were in the grove and there is nothing to show that they had any connection with the owners of it or of the fruit or tress in it. They were themselves in the grove as members of the public."

The learned Judge saw no reason for interference upon that point. I have, however, been referred to a number of cases on behalf of the accused persons in regard to the interpretation put upon the words "public street, place or thoroughfare".

In the case of - Queen-Empress v. Sri Lal, 17 All 166 (B), a Division Bench of this Court held that a chabutra which was neither a place to which the public had a right of access nor a place to which the public were ever permitted to have access was not, though it adjoined a public road, a public place within the meaning of Section 13. In another case - Lala v. Emperor, AIR 1930 Oudh 394 (C), Mr. Justice Pullan observed that a public place was one which was in full view of the public and one to which the public had access. The verandah of a shop

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