Ramjank Patwa vs Emperor

Rowland, J.—The petitioner has been convicted u/s 11, Bengal Public Gambling Act (Bengal Act 2 of 1867) and sentenced to a fine of Rs. 15. Two points are urged in revision: first, that the place of the alleged gambling was not a public place within the meaning of Section 11; and secondly, that the prosecution did not prove that the petitioner was gambling.

Section 11 of the Act refers to playing for money with instruments of gaming in any public market, fair, street, place or thoroughfare. The words do not refer to every kind of place. It must be a public place as was held in Khudi Sheikh v. Emperor, 6 CWN 33 and in Emperor v. Hussein Noor Mahomed (1906) 30 Bom 348. In those two decisions, in considering what was a public place, the Courts looked to the context and applied the principle of ejusdem generis. The Bombay Act is not the same in its wording as that in Bengal, the words being a "public street, place or thoroughfare" and Jenkins, C.J. said that "place" for the purpose of this section must be a public place of the same general character as a public street or thoroughfare. In the Bengal Act the words are "in any public market, fair, street, place or thoroughfare", a somewhat wider definition; and in the Calcutta case cited, it was said the place must be of the same character as a public market, fair, street or thoroughfare. A similar view was taken in Emperor v. Jusub Ally, (1905) 29 Bom 386. Here again it was, of course, the Bombay Act which had to be applied, and in that Act the word "place" is also used in an earlier section in connexion with house, room or office as meaning a private place of that kind. Commenting on the distinction between the two senses in which the word "place" is used in the different sections, Batty, J. discussed the mischief aimed at in the two parts of the Act. In the earlier part, he said:

The mischief aimed at is the practice of individuals making a profit by providing a spot of their own selection known as a place where gambling is to be carried on, and making a livelihood by attracting people to a place which they would not otherwise frequent.

On the other hand, in the provision dealing with gambling in a public place, "the offence," he said,

is, not that the individual members are making a profit at all, but simply that they are carrying on their gambling with such publicity that the ordinary passer by cannot well avoid seeing it and being enticed if his inclinations lie that way to join in or follow the bad example openly placed in his way.

The meaning of the expression "public place" again came before the Calcutta High Court in Hari Singh v. Jadu Nandan Singh (1904) 31 Cal 542 and the Judges referred to the general description of a public place to be found in Reg. v. Wellard (1884) 14 QBD 63. In this case Lord Coleridge, C.J., felt no doubt that a place was a public place though it was private property when it was shown that the public were in the habit of resorting to the place, and no one prevented them from so resorting to it and Grove, J. said that "a public place is one where the public go, no matter whether they have a right to go or not." Following this Calcutta decision a number of other High Courts have referred to Wellard''s case Reg. v. Wellard (1884) 14 QBD 63 and treated it as settling what is a "public place". The Madras High Court did so in Emperor v. Govindarajulu AIR 1916 Mad 474 and again in Emperor v. Musa AIR 1917 Mad 124 which followed the Calcutta decision in Hari Singh v. Jadu Nandan Singh (1904) 31 Cal 542. The Allahabad High Court in Emperor v. Sukhanandan Singh AIR 1922 All 542 referred to and followed Reg. v. Wellard (1884) 14 QBD 63. It was said that a place was a public place if the public were in the habit of resorting to it and no one prevented them from so doing, no matter whether they have a right to go there or not.

The Calcutta decision in Hari Singh v. Jadu Nandan Singh (1904) 31 Cal 542 was approved and Reg. v. Wellard (1884) 14 QBD 63 applied by the Nagpur Judicial Commissioner''s Court in Vithu v. Emperor (1913) 21 IC 910 and again by the Oudh Judicial Commissioner''s Court in Emperor v. Bashir A IR 1922 Oudh 275. There is thus no difference of opinion whatever on the question of principle and the only question is as to the application of the principle to the facts of a particular case. It is not necessary that the place should be public property; but if it is private property the public must have access to it; nor is it sufficient that the place should be accessible to the public; it must be a place to which the public do in fact resort. Where the public had not access, a place has been held not to be a public place: see Queen-Empress v. Sri Lal (1895) 17 All 166 and Babu Ram and Others Vs. King-Emperor . In Emperor v. Bashir A IR 1922 Oud 275 an open space of ground near two public roads was held not to be a public place because the public did not in fact resort to it. It was observed in passing that:

A private place may be frequented by the public and may become a public place for the time it is so used,

and this is consistent with Emperor v. Sukhanandan Singh AIR 1922 All 542 in which a grove which was private property was held to be a public place because the public were using it without interference on the occasion of a mela. I turn to consider the nature of the place where gambling in the present instance is said to have occurred. It was in a bamboo grove which was private property. It is 400 yards from the nearest public road and 500 yards from the railway line. It is bounded on three sides by an orchard and on the fourth by a field. It is described by the Investigating Officer (P.W. 4) as a "secluded place". The Courts below have considered it to be a public place because two foot paths met near to it. On the principle of the decisions which I have cited, one element seems to be lacking to constitute this place a public place. Being a private property the prosecution should have shown that it was in a frequented locality and not only accessible to, but in fact resorted to by the public. I do not think the Act was intended to catch conduct like this which in substance seems to be gambling in private rather than gambling in public.

The other point taken is that the petitioner was not proved to have been gambling. It is pointed out that the provisions of the law are different in respect of gambling in a common gaming house, from those in respect of gambling in a public place. In the former case there is a penalty imposed on anyone either found, playing or found present for the purpose of gaming and if any gaming or playing is going on in a common gaming house there is a presumption that any person found present was there for the purpose of gaming. There is a further presumption u/s 6 when any cards or instruments of gaming are found in a common gaming house that the persons present there were present for the purpose of gaming even though no play was actually found taking place. In a prosecution u/s 11 it is otherwise. Mere presence is not an offence under this section which penalises "any person found playing for money"; secondly, "any person setting any birds or animals to fight"; thirdly, "any person there present aiding and abetting such public fighting, of birds and animals". But there is no provision to penalise mere presence of any person at a public place where gaming occurs; nor is there any presumption that a person found present has been gambling. The observations above cited in Emperor v. Jusub Ally (1905) 29 Bom 386 as to the mischief at which the two parts of the Gambling Act were aimed are in point. In the light of those observations it is not difficult to understand why the Legislature has given such different treatment to the matter of gaming in a common gaming house and that of gambling in a public place. All the persons present in such an enclosed place as a common gaming house, may naturally be supposed to be members of the gaming party. But in dealing with a public place where the gravamen of the offence may be said to be the danger of corrupting the morals of the innocent passer by, the presumption regarding anyone found present (unless something further is proved against him) is that he is such an innocent passer by.

In the present case the evidence is that the police raiding party came to the place and found eighteen or twenty persons gathered there. Of these, seven were apprehended there and then, and were found by the Magistrate to have been actually playing. The rest took to their heels. Petitioner Ramjanak Patwa also ran. There is no evidence that he was playing. Two witnesses have identified him as one of the persons who were seen running away from the place of gambling. The mere fact of running away is not sufficient to support the presumption which the Courts below have made that the persons who ran away were actually gambling. In the result, the application succeeds on both grounds. The rule is made absolute, the conviction set aside and the petitioner acquitted.