Dissa and Others vs State

Choudhary, J.—This is a reference u/s 438 of the Code of Criminal Procedure by the learned Sessions Judge of Farrukhabad recommending that the conviction of Dina and 10 others u/s 13 of the Public Gambling Act and the fine of Rs. 40 imposed on each of them by a first date Magistrate be set aside.

They were found gaming inside an arhar field. The learned Sessions Judge has made the recommendation on the ground, inter alia, that the arhar field would not be a public place within the purview of Section 13 of the Act inasmuch as the field in question was separated from the thoughfare by another field. This topography of the place appears to be conclusively proved from the site plan prepared in this case. On the face of it, an arhar field would not be a public place since the public would have no access thereto. An arhar field would be private property into which if any unconnected person were to enter he would be committing an act of trespass. u/s 13 of the Act ganaing has been prohibited "in a public street, place or throughfare." By the Explanation added to Section 13 by Section 4 of the U.P. Public Gambling. (Amendment) Act XXXIV of 1932 the scope of a public place has been extended where the place concerned is adjacent to and abuts a public street. The Explanation is in the following terms:

For the purpose of this is section ''public place'' includes any upon space situate adjacent to and abutting a public street and not separated therefrom by boundary wall." That being so, even if the place where gambling is found resorted to be not a public street or a public place or a thoroughfare within the purview of Section 13 of the Act, it would be penal, in view of the aforesaid Explanation added to the section, if the place, provider it bath an open space, were situated, adjacent to and abutting a public street and not separated therefrom by a boundary; wall. In the present case, the field where gaming was found to be going on though an open space, was not adjacent to and abutting a public street but was separated therefrom by another field. That being so the arhar field in question was not a public place, not only per se but even under the extended definition of that set on by virtue of the aforesaid Explanation.

For the above reasons the reference is accepted and the convictions and sentences of the aforesaid eleven persons are set aside and they are acquittal The fines, if realised already, shall be refunded.