The determination of whether a place is public or not under the relevant legal provisions is based on the evidence in each particular case.

Kikehede—The only point worth considering is whether there is any evidence to show that the place where the gambling was going on was a public place at which the Police-officer may apprehend without warrant any person found playing for money etc with cards, etc any game not being a game of skill within the meaning of section 13 of the Act III of 1867, as applied to Berar.

2. The expression public place has been interpreted in two reported oases of this Court: Vithu v. Emperor,1913 14 CrLJ 670, and Gajju v. Emperor,1918 14 NLR 137. The gist of the two rulings Is that the place in order to be public must be open to the public, i.e., a place to which the public have lawful access by right, permission, usage or otherwise. The proximity of a private place (like a chabutra) to a public thoroughfare is not always regarded as a sure criterion of the public nature of the place, see Queen-Empress v. Sri Lal,1895 AWN 42. In Khudi Sheikh V. The King-Emperor,1901 6 CalWN 33, the place was in a compound of a thakurbari surrounded by a pucca wall and it was held not to be a public place. Similarly in two other unreported cases of the Calcutta High Court referred to in Hari Singh v. Jadu Nandan Singh,1904 8 CalWN 458a verandah alongside a public road was held not to be a public place, though it was possible to enter it from the street. '' Where a place is in any way dedicated to the use of the public, it would of course be a public place. But where it is owned privately and no such dedication has taken place the question whether it is a public place depends on the character of the place and use actually made of it'' : see Vithu v. Emperor,1913 14 CrLJ 670, where the passage is quoted from Hari Singh v. Jadu Nandan Singh,1904 8 CalWN 458. Sir Henry Stanyon has held in Gajju v. Emperor,1918 14 NLR 137, that a place to which the public resort habitually or as a matter of fact, whether of right or with the permission of a private owner is a public place. The District Magistrate has described the situation in the following words:--

There are thorn fencing round the field on three sides and on one side a hedge. A small portion of the field is occulted by garden crops. There are some fifteen to twenty farm houses in the field belonging to different persons. I imagine that by farm houses the Magistrate means kothas where cattle are kept and their attendants also elope. There are heaps of karbi in the field belonging to various persons. The distance between the place where gambling was going on and the gate is about 100 yards and the boundary of the field is about 60 yards from the place where the gambling was carried on. Within fitly yards of the place a much frequented cart track passes. There are two wells in the field one of which is based by the public while the other is reserved for irrigating the garden crops in the field. The Magistrate has held that the place where gambling was oarried on is a public place and I am of the opinion that his decision is correct.

3. Then after discussing the two local rulings the learned District Magistrate came to the conclusion that the place was public place in accordance with the tests applied by Sir Henry Drake-Brock man in Vithu v. Emperor,1913 4 CrLJ 670. The existence of the khallas in the field or kothas in portions of the field does not necessarily speak of dedication to public at large. It rather shows that the owner of the soil has granted his permission to particular individuals of agriculturists with a view to derive benefit of manure and urine of agricultural and other cattle, etc. which these persons may keep in the khalas or the kothas. It is just possible those particular individuals may have been granted special privileges by the owner of the soil. The existence of private kothas on the land shows private ownership. It is no proof of any dedication to the public. The word ''public'' is defined in Webstor's Dictionary as meaning the general body of mankind or of a nation, state or community