ORDER
1. A common question is involved in these two revision cases and it is whether the place called 'Happy Corner Amusement Park' is a 'Public Place' within the meaning of Section 12 of the Andra Pradesh (Andhra Area) Gaming Act, 1930, hereinafter referred to as 'the Act'. The learned Additional Sessions Judge, Krishna made the references recommending to quash the proceedings in the Bench Cases Nos. 8694 and 8695 of 1971 on the file of the First Class Bench Court , Vijayawada, on the ground that the above place cannot be considered as a 'public place' within the meaning of Section 12 of the Act and therefore the petitioners in the two cases cannot be said to have committed any offence within the meaning of Section 12 of the Act. The allegation made against the petitioners in both the cases is : That on 23-11-1981 at about 8-15 p.m. they and others were found in the aforesaid place, 'Happy Corner Amusement Park' situated in Sambamurthy Road, Vijayawada. They were found playing a game of chance by side betting while some other person was throwing arrows on the dart board. A sum of Rs. 52/- was found there on a cover sheet and it is alleged that the amount was kept there by the petitioners intending to use it for side betting. The police raided and arrested the petitioners and others.
2. Section 12 of the Act reads thus :
'Whoever is found gaming with cards, dice, counters, money or other instruments of gaming in any public street , place or thoroughfare or publicly fighting cocks , shall be liable on conviction to fine not exceeding fifty rupees or to imprisonment not exceeding one month : and such instruments of gaming and moneys shall be forfeited.'
3. A reading of the above section would show that for any person to be accused of the offence under this provision he must have been found playing a game which amounts to gaming and he must have been playing in a public street, place, or thoroughfare . According to the allegation, the petitioners were found playing a game of chance at a place called 'Happy Corner Amusement Park' situated in Sambamurthy Road, Vijayawada. It is not the case of the prosecution that the petitioners were found playing on the road itself. Therefore it is not a case where they were found playing on a public street to thoroughfare. But according to the prosecution case the place which is being used for the purpose of these games and called 'Happy Corner Amusement Park' is a 'Public Place' . Therefore, the main question that falls for consideration is whether the place which is being used for these games under the name 'Happy Corner Amusement Park' is a 'Public Place' or not. With regard to the question whether the game which the petitioners were found playing , viz., side betting at a game of 'darts' can be said to be gaming or not . I do not think there can be any difficulty. As per the definition given for the term 'gaming' in the Act, any play which includes wagering or betting comes under gaming. Therefore according to the allegation what the petitioners were found playing is gaming as they were found side betting at a game of darts.
4. Then the question is what meant by a 'Public Place' within the meaning of Section 12 of the Act and whether the place in question can be called a 'public place'. A similar question came to be considered by various High courts in connection with offences similar to the one which is now under consideration. The Andhra Pradesh (Andhra Area) Gaming Act, 1930, is the same as the Madras Gaming Act, 1930. What is meant by the expression 'Public Place' within the meaning of Section 12 of the Act came to be considered by the Madras High Court in several decisions.
5. In the decision Jammula Raghunandhu v. Emperor, 1933 Mad WN 1422 it was held that the pial of a private residence where the accused along with others was found gaming with cash and play cards was not a public place within the meaning of Section 12 of the Madras Gaming Act and therefore no offence was committed.
6. In the decision In Re Unna Muhammad Sahib AIR 1938 Mad 74 the facts are , Some persons were caught playing cards for money in a tank bed and they were prosecuted for the offence of gaming under Section 12 of the Madras Gaming Act. It was held that gambling is not a criminal offence in itself. It is not an offence to gamble in every public place. The word 'place' in Section 12 means from its context a place akin to a street to thoroughfare used regularly and necessarily by people going from one place to another. The real offence dealt with under Section 12 is obstruction or annoyance to wayfarers and pedestrians. Accordingly it was found that the tank-bed is not a 'Public Place' within the meaning of Section 12 of the Madras Gaming Act.
7. In the decision In Re Satyanarayana Raju, : AIR1950Mad729 The case against the accused was that on the night of 13th February, 1949, they were found playing cards for money in an dilapidated house belonging to a private person. The Lower Courts held that the hose wherein the caused were gambling was a public place within the meaning of Section 12 of the Madras Gaming Act because it was a dilapidated house by the side of a road and there was a killi shop by the side of it and therefore the accused were guilty of an offence under that section. After reviewing several decisions on the point Chandra Reddi, J., (as he then was) held that in order to constitute a public place within Section 12, Gaming Act, it is not necessary that the place should be a public property, but it is a private property it must be proved that not only the public could have access to it, but it is a place to which members of the public in fact resort. On the facts of that case it was held that the prosecution has not established that the public were as a matter of fact frequenting that place and therefore the dilapidated house in which the accused were found playing cards for money is not a public place within the meaning of Section 12 of the Act.
8. In the decision Emperor v. Govindarajulu, AIR 1916 Mad 474 the accused was procuted for disorderly behavior in a place of public resort (to wit, the grounds of the Madras Harbour) an offence under Section 75 of the Madras City Police Act. The Presidency magistrate acquitted the accused on the ground that the harbour premises do not constitute a place of public resort. The Madras High Court held that though the by-laws framed under the Port Trust Act provided for prosecution as trespassers of persons who enter on the harbour premises without having business there or with the ships lying in the harbour and that provision was not intended to be enforced against respectful persons and respectable members of the public have been freely allowed to enter the harbour premises, as well as very large number of people who have business in the harbour premises or with the shipping, the harbour premises must be considered as a place of public resort. It was further observed that a legal right of access by the public is not necessary to constitute a public place.
9. In the decision in Re Musa, AIR 1917 Mad 124 the question which has arisen is whether the compound of a Hindu Temple is a place of public resort within the meaning of Section 3 (10) of the Madras Town Nuisance Act. It was held that the compound of a Hindu Temple is a place of public resort though other religionist might be excluded from its precincts , just as a Mosque can be called a place of public workshop though only Musalmans are allowed to enter it to pray therein. It is not necessary that every member of the public should have a right of access to a place in order to make it a place of public resort. It was further held that a place to which the public go , whether they have a right to go or not, is a place of public resort within the meaning of that section.
10. In the decision the Queen v. Wellard, (1884) 14 QB 63 the accused was convicted of indecently exposing his person at a place which was out of sight of the public footpath , but it was a place to which the accused had gone with several little girls , though without any legal right to go there, and it was also a place to which persons were in the habit of going without having any strict legal right so to do though the persons so go in were never in any way hindered or interfered with . It was held that a public place is one where the public go, no matter whether they have a right to go or not. The right is not the question.
11. In the decision Kitson v. Ashe, (1899) 1 QB 425, the question that arose was whether betting on a private ground, where people habitually frequent for betting, is betting in a place of public resort. It was held that it is a place of public resort and it does not matter who the owner is or what his rights are, so long as the place is in fact resorted to by the public.
12. In the decision Emperor v. Jusub Ally, (1905) ILR 29 Bom 386 the facts are : The accused, fourteen in number , chartered a boat and having got it anchored in the Bombay Harbour a mile away from the land, carried on gambling there. The Bombay High Court held that the accused were not guilty of offence under Section of the Bombay Prevention of Gambling Act, which before amendment in 1910 was similar to Section 12 of the A.P. Gaming Act, since they cannot be said to be gambling in a public place. Battey, J. observed that the word 'place' which is patent of many different meanings, must necessarily , in each instance in which it is used by the Legislature , be construed with reference to the intention to be inferred from the context. The object aimed at in Section 12 is not to prevent gambling by individual members but to prevent them from carrying on their gambling with such publicity that the ordinary passer-by cannot well avoid seeing it being enticed - if his inclinations lie that way - to join in or follow the bad example openly placed in his way.
13. In the decision Emperor v. Hussain, (1906) ILR 30 Bom 348 the accused were convicted by the Magistrate on the ground that they were found playing for money in a railway carriage forming part of a through special train running between Poona and Bombay, while the train stopped for engine purposes only at the Reversing Station. Reversing the conviction, the Bombay High Court held that a railway carriage forming a part of a through special train is not a public place under Section 12 of the Bombay Prevention of Gambling Act. It was also held that the adjective 'public' applies to all the three nouns - street, place or thoroughfare and it is not possible to say that the railway carriage in which the accused were as possessing such characteristics of or bearing such general resemblance to a street or thoroughfare as to justify in holding that it was a public place.
14. In the decision Khudi Sheikh v. King Emperor , (1901-02) 6 Cal WN 33 the Calcutta High Court was considering a case under Section 11 of the Bengal Gambling Act, II of 1867, whereunder it was provided that a Police Officer may apprehend without warrant any person found playing for money etc., in any public market, fair, street, place or thoroughfare. In considering the word 'place' as used in Section 11 of that Act, the Calcutta High Court held that the word 'place' cannot but be public place and is used ejusdem generis with the other words in the section, public market, fair, street or thoroughfare. There, the place in question was a thakurbari surrounded by a high compound wall . It was not a place where any member of the public was entitled to go and the owner could prevent any particular individual from going in if he chooses and as a matter of fact men who were not Hindus were not allowed to go into it. Under these circumstances , it was held that it was not a public place.
15. In the decision Mangubhai v. Emperor, AIR 1030 Bom 369 it was held by the Bombay High Court that a place like a hotel would attract Section 12 of the Bombay Prevention of Gambling Act. It was so held in that decision because Section 12 was amended to include any place to which the public have or are permitted to have access.
16. There were other decisions which came to be decided like the one of the Gujarat High Court, viz, State v. Dohna Jamanadas, : AIR1961Guj182 where the Gujarat High Court held under the amended provision of the Bombay Prevention of Gambling Act that waiting room in a railway station is a public place. But these decisions have no application to the facts of the present case because Section 12 of the Bombay Prevention of Gambling Act after amendment as mentioned above is different from Section 12 of the A.P. Gaming Act.
17. In the decision Baburam v. King Emperor, AIR 1927 All 560 the Allahabad High Court was dealing with Section 13 of the Uttar Pradesh Public Gambling Act. There the accused were found gambling outside the city of Mainpuri in a plot of vacant land which is a private property. It was surrounded on three sides by fields and on the fourth side by a stream. There was not even a footpath going over the place where the gambling was going on. Close to the place there was peepul tree which is situated on the bank of the river. A pucca road is 320 paces away from the spot and another narrow kucha way was 150 paces from it. Under that section gaming is prohibited in 'any public street, place or thoroughfare.' The Court held that the word 'place' is in conduction with street or thoroughfare and could not have been used to apply to a private place which might be open to public view. It was further held that of course a particular place though private may become a public place on a particular occasion , for instance when the members of the public are really present there. But unless such is the case , a private place cannot be called a public place merely because if some members of the public who are to pass close by may have an opportunity of seeing what is 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.
18. In the decision Hari Singh v. Jadu Nandan Singh, (1903-04) ILR 31 Cal 542 the game was played in a private compound consisting of an open space of land without any fence. There was no evidence that the owner ever gave or refused permission to any one to come on his compound or that any one asked his permission to do so or that any one was prevented from doing so by him. The game was sham horse racing known as 'little horse racing' by means of a machine. Which horse won was a pure matter of chance. The public were staking their money on any of the horses before the machine was started. When the question arose whether the place was a public place or not, it was held that it is so.
19. In the decision State v. Maganlal, AIR 1953 Sau 112 the Saurashtra High Court was dealing with Section 12 of the Bombay Prevention of Gambling Act , which Act applied to Saurashtra. There, the accused were found gambling in a room of a hotel a Rajkot. The defence was that the said room No. 14 in which the accused were alleged to have been found gambling was reserved for one of the accused and was in his exclusive possession. Under those circumstances , it was held by the Saurashtra High Court that it is not a place the public have or are permitted to have access as contemplated by Section 12 as it is in the exclusive possession of one of the accused.
20. In the decision Badruddin v. Emperor , AIR 1920 Lah 262, the place where the accused were found gambling for money with cards was at a place near the water tank within the premises of the railway station. It was held that admittedly it is not a street to thoroughfare and it is not even part of the platform to which the travellers have access and therefore cannot be considered a public place.
21. The word 'gaming' used in the Act cannot be interpreted etymologically as equivalent to 'playing a game'. In imperial Dictionary , it is defined as 'to use cards or other instruments according to rules with a view to win money or other things waged upon the issue of the context.' In Murray's Dictionary, it is defined as the action of playing games for stakes. Therefore the existence of a stake is regarded as constituting the distinction between playing a game and gaming. Gaming by itself is not made an offence under the Act. It is the keeping of a house for gaming for profit or gain of the person owning , occupying or using such house and gaming in such a house and gaming in public street etc., that are made offences under the Act. The idea of making the keeping of a house or premises for gaming or having found gaming in such premises offences under the Act seems to be to discourage individuals from making any profit or gain by providing premises for gaming, making a livehood out of it by attracting people to the place where they would not otherwise frequent. For making the gaming in a place where people generally resort or visit , an offence, the object appears to be to prevent the members of the public who were generally inclined that way and who would not otherwise think of gaming, from being enticed to join in or follow the bad example openly placed which they cannot avoid seeing. Having this object in view, it has to be seen whether a particular place can be called a 'public place' within the meaning of Section 12 of the Act. Having this object in mind the view expressed in almost all the decisions discussed above is that for a place to be a public place it need not be owned by the public and even if it is owned by the public , by itself it does not become a public place. The emphasis placed was more on the fact whether the members of the public in fact resort to the place, whether they have a legal right to do or not. Having regard to the object with which the gaming is made an offence as provided under Section 12 of the Act and the view taken in most of the cases discussed above, the following propositions would follow :
22. A place to be a 'public place' it can be either a private property or public property provided it is a place to which the public ordinarily resort or visit. A public place is one where the public go, no matter, whether they have a right to go or not. The right is not the question. Conversely a legal right of access by the public is not necessary to constitute a public place. The important thing is it must be a place to which the members of the public in fact resort. Public need not necessarily mean the entire public. It may be a section of the public also. It is enough if it is not a place to which individual members of the public only are allowed. It can also apply to a place which might be open to the public view. Though it may not be a public place all the time it may become a public place on a particular occasion when the members of the public gather there for that occasion.
23. Under these circumstances , whether a place is a public place or not is a mixed question of law and fact. Each case has to be decided on its particular facts. In the present case, it is an admitted fact that there was a licence for the premises in question obtained under Section 7 of the Andhra Pradesh (Andhra Area) Places of Public Resort Act, 1988. In the affidavit filed by the third petitioner in Crl. No. R. C. No. 490 of 1972 it has been asserted that the premises where 'happy corner amusement park' is situated is an enclosed permanent building where games of skill and other variety entertainments such as dancing, Bharatanatyam , musical performances are being conducted, the admission to it having been restricted to persons who purchased tickets only. According to him the Management of the Park charges 10 Ps. per head towards entrance fee into the enclosure where entertainment and games of skill are conducted. As against this, in the counter affidavit filed by the Station House Officer, No. III Town Police Station, Vijayawada, it has been stated that the premises in which the 'Happy Corner Amusement Park' is situated abuts the road called Sambhamurthy Road which is a main road and a busy thoroughfare. The main gate of the park is facing that road and the games are visible to the travelling public. There is no restriction to the general public for entry into the said park. There are no collections at the rate of 10 Ps. per head at the gate. They collect only ticket charges for witnessing the dance programmes and not the other items. Thus, the averments in both the affidavits conflict with each other. These matters can be decided only having regard to the evidence adduced in the trial of the case. Therefore, it is not possible to find on the admitted facts whether the premises in question is a public place or not. Under these circumstances it is not possible to quash the proceedings in Bench Cases Nos. 8694 and 8695 of 1971 on the file of the First Class Bench Court, Vijayawada. Therefore, the references are rejected and Crl. M.P. Nos. 4 and 5 of 1971 filed before the Addl. Sessions Judge , Krishna are dismissed.
24. Order accordingly.