RAMJANK PATWA Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted under Section 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.

(2.) 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, (1902) 6 OWN 33 and in Emperor V/s. 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.

(3.) 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.