ORDER

Gyanendra Kumar, J. - The third temporary Civil and Sessions Judge of Budaun has made this reference to this Court in a case in which the accused were convicted u/s 13 of the Public Gambling Act and were sentenced to pay a fine of Rs. 50 each. The accused were arrested by the sub Inspector while playing Kauris in the grove of one Nazir. The grove lay to the west of a road running north south and was visible from the brink of the road, as is evident from the site plan. The Sub Inspector arrested the applicants on the spot and recovered some money from the Phar as well as from their person.

2. The Magistrate convicted and sentenced the accused as stated above and further directed that the money recovered from the Phar and the person of the accused shall be confiscated to the State.

3. On revision by the applicants, the learned temporary Sessions Judge maintained the conviction and sentences but did not agree with the finding of the Magistrate that the money recovered from the possession of the accused was liable to be confiscated. On this last point alone, he has made this reference.

4. Shri N. Lal, learned Counsel for the applicants, not only supports the reference but further urges that the conviction of the applicants u/s 13 of the Gambling Act was wholly illegal. As pointed out above, the applicants were admittedly gaming in the grove of Nazir which lies near the public thorough fare and is perhaps also visible from there. But in order to sustain their conviction u/s 13, the offenders must be found gambling "in any public street, place or thoroughfare". The private grove of Nazir could not be described as public place, much less, public street or thoroughfare. The mere fact that the grove was not enclosed and some members of the public could have access to it would be no ground to treat the grove as a public place. Likewise, even if the place of gambling in the grove was visible from the public road passing nearby, it would not make the grove a public place within the meaning of Section 13 of the Public Gambling Act. For authorities, reference may be made to the following cases:

1. Ahmad All and Ors. v. King Emperor ((?)ALJ 129)

2. Munshi and Ors. v. State (1953 ALJ 714: 1954 AWR 32).

3. Mt. Rahiman Bibi Vs. Fazal, AIR 1927 All 56 . In the first case it was held by Ailk man, J. that "A person found gambling in a private grove cannot be convicted u/s 13 of the Public Gambling Act III of 1867 which provides a punishment for gambling" in a public street, place or thoroughfare. In the second case Harish Chandra, J. held that "A public place must be a place which is either open to the public or used by the public." Where some persons were found gaming in an arhar field on the road side and were convicted u/s 13 of the UP Gambling Act; Held "that if the field had been lying fallow and without any crop, it could be possible to say with a certain amount of justification that the field being near a public thoroughfare was in fact used by the public and was accordingly a public place. But as the arhar crop was standing in the field and although a member of the public could possibly go into the field without hindrance it could not be said that it was a place used by the public because if the owner of the field were present he would pre sumably object to an outsider going into the field and as such the accused could not be said to have committed an offence u/s 13." In the third case, Sulaiman, J. Held "the word 'place' is used (in Section 13) in conjunction with street and thoroughfare and could not have been intended to apply to a private place which might be open to a public view. A private place cannot be called a public place merely because if some member of the public were to pass close by he might have an opportunity of seeing what was going on there. It must be a place either open to the public or actually used by the public, the mere publicity of the situation not being sufficient.

5. For the reasons stated above, the conviction