EMPEROR Vs. MANGUBHAI DAHYABHAI

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, Surat, expressing an opinion that the conviction of the accused for an offence under Section 12 of the Bombay Prevention of Gambling Act by the First Class Magistrate, Surat City, is bad in law. The case is reported to this Court for its consideration. The accused were arrested while they were gambling in a hotel. The First Class Magistrate, Surat City, who tried the case, was of opinion that the arrest was not illegal as a hotel could be regarded as a public place within the meaning of Section 12 of the Gambling Act. Section 12 of the Bombay Prevention of Gambling Act is as follows :- A Police-officer may apprehend without warrant- (a) any person found gaming in any public street, or thoroughfare, or in any place to which the public have or are permitted to have access or in any race-course ...

(2.) The Sessions Judge is of opinion that the case is covered by the authority of Emperor v. Hussein (1905) 8 Bom. L.R. 22 where the word "place" occurring in Section 12 as it then stood was held to mean "a place of the same general character as a road or thoroughfare". Section 12 (a), at the date of that decision, read : A Police-officer may apprehend without warrant- (a) any person found playing for money or other valuable thing with cards, dice...in any public street, place or thoroughfare." The word "place" appearing in the section came between "public street" and thoroughfare". Russell J. in the course of his judgment observed (p. 30):- Several cases were referred to in course of the argument. The first was Langriah V/s. Archer (1882) 10 Q. B. D. 44 where it was held that the railway carriage while travelling on its journey was an open and public place or an open and public place to which the public have or are permitted to have access. Now if the words in the statute before us were the same as in that, of course the accused would have been rightly convicted, but in the statute there referred to (36 & 37 Vic. c. 38), the words used are open place to which the public have or are permitted to have access.

(3.) It is clear from this passage in the judgment that the decision in Emperor V/s. Hussein would have been different if the words to which the public have or are permitted to have access " had governed the word " place " in the section as it then was. The Legislature amended the Gambling Act in 1910 and the words: or in any place to which the public have or are permitted to lave access " have been inserted in the section.