Beaman, J.
1. We think that the convictions and sentences must be set aside. Waiving for a moment the question whether the other on which gambling was said to be going on was a public place, and admitting for the sake of this argument that it was, the conviction becomes all the worse. The sole ground upon which the Magistrate has found these four accused guilty is that they were present or near gamblers gambling in a public place, and from that he inferred that they must themselves have been gambling. This inference is entirely unsound, and was drawn no doubt by the Magistrate owing to a subconscious importation of the presumption mentioned in a. 5. But the reason underlying that presumption has no applicability at all to cases under Section 12. It ought to be obvious to anyone who takes the trouble to reflect that in the case of a gaming-house, which is not a public place, those who deliberately go to rooms set apart for a particular purpose may very rightly be presumed to have gone there for that purpose. But no consideration resembling this has any applicability to the mere presence of persons in a public street or place. They may be there with quite innocent intentions and out of curiosity may pause to watch what is going on. Before any conviction could properly be arrived at under Section 12 it is obviously essential that the accused persons should be shown by evidence to have been actually taking part in the gambling. It is conceded here that there is absolutely no evidence of that kind. On that ground alone the convictions and sentences are quite clearly unsustainable and ought to be set aside. Adopting this view we do not consider it necessary to discuss the other point upon which the appellants rely, namely, that the other was not a public place. The convictions and sentences must be set aside, the accused acquitted and discharged, and any fines paid refunded.
2. These Proceedings have brought to our notice the conviction and sentence passed upon accused No. 3 who has not been directly represented. We have asked the learned Government Pleader whether anything could be said in support of his conviction and sentence which has not been said in support of the convictions and sentences of the other three accused, and he very candidly admits that there is nothing. In these circumstances we think we may safely act under Section 439, Criminal Procedure Code, without going through the formality of issuing notices and having a further hearing. We therefore direct that the conviction and sentence of accused No. 3 be likewise set aside, that he be acquitted and discharged and any fine which he may have paid be refunded.