Order The petitioners in this case were convicted under section 12 of the Madras Gaming Act and sentenced to pay a fine of Rs. 15 each and in default to undergo simple imprisonment for one week each by the Stationary Sub-Magistrate, Bhimavaram. It was also ordered that the sum of Rs. 251-13-3 seized by the police should be confiscated. On appeal the Sub-Divisional Magistrate confirmed the conviction and sentence passed on the petitioners. The case against the petitioners is that on the night of 13th February, 1949, the petitioners were found playing cards for money by the Station House Officer who was examined as a prosecution witness, in a dilapidated house belonging to D.W.1. The Courts below held that the house wherein the petitioners were gambling was a public place within the meaning of section 12 of the Gaming Act because it was a dilapidated house by the side of a road in a conspicuous place, and there was a killi shop by the side of it, and therefore the accused were guilty of an offence under that section. It is not disputed that “the petitioners” were caught while playing cards for money on the night of the 12th February, 1949, but the main contention raised on behalf of the petitioners is that an offence under section 12 was not committed by them as the place where they were gambling is not a public one within the meaning of that section. Section 12 of the Madras Gaming Act provides that “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 money shall be forfeited.” The simple question that falls to be decided in this case is whether the house in which the petitioners were gambling with cards is a public place within the meaning of section 12 of the Act. It is in evidence that though the house is a dilapidated one it is surrounded on all sides by compound walls and that people could not have access to the building without the permission of the owner thereof. It is in evidence that though the house is a dilapidated one it is surrounded on all sides by compound walls and that people could not have access to the building without the permission of the owner thereof. Can it be said therefore that the house is a public place by reason of the fact that it is a dilapidated one just by the side of a road and that there is a killi shop nearby? Reliance was placed by Mr. Satyanarayanaraju appearing for the petitioners in this revision on, In re Unna Muhammad1. It is laid down there that gambling in a tank bed is not an offence under section 12 of the Madras Gaming Act because " the word ‘place’ in section 12 means from its context a place akin to a street or thoroughfare, used regularly and necessarily by people going from one place to another and that the real offence dealt with in section 12 of the Madras Gaming Act is obstruction or annoyance 10 wayfarers and pedestrians." The learned Judge followed a ruling of a Bench of the Bombay High Court in Emperor v. Hussain2, which laid down that a railway carriage forming part of a through special train was not a public place within the meaning of section 12 of the Prevention of Gambling Act. It is pointed out in Emperor v. Jusub Ally3, that the gist of the offence under section 12 of the Bombay Prevention of Gambling Act which corresponds to section 12 of the Madras Gaming Act consists in individuals ‘‘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." It was held at the accused who carried on gambling in a boat chartered for that purpose and anchored in Bombay harbour a mile away from the land had not committed an offence under section 12 of that Act. Another decision cited to me by Mr. Satyanarayanaraju is the one in Jamulu Raghunadhu v. Emperor4, where it is laid down that the pial of a private residence is not a public place though it is along-side a public road and accessible from it. This decision has not got much of bearing on the point to be decided by me. Another decision cited to me by Mr. Satyanarayanaraju is the one in Jamulu Raghunadhu v. Emperor4, where it is laid down that the pial of a private residence is not a public place though it is along-side a public road and accessible from it. This decision has not got much of bearing on the point to be decided by me. The law on the subject has been succinctly laid down in Queen v. Wellard5. The principle enunciated in that case is that a place is a public place though it is a private property when it is shown that the public are in the habit of resorting to it and no one prevented them from so resorting to it. This principle was followed in a number of cases by almost all the High Courts. Following this decision it was held in Crown Prosecutor v. Govindarajulu6, that a legal right of access by the public is not necessary to constitute a. public place and that a public place is one which is resorted to by the public whether they have a right to go or not. It was held in that case that persons who were found guilty of disorderly behaviour in the harbour premises could be convicted for an offence under section 75 of the Madras City Police Act as the harbour premises constitute a place of public resort. In King-Emperor v. Musa7, the same principle has been laid down. In this case the question that arose for consideration was whether the open space within the compound of a Hindu temple in the town of Coimbatore was a public place within the meaning of section 3(10) of the Madras Towns Nuisance Act. Oldfield and Sadasiva Ayyar, JJ., who constituted the Bench answered the question in the affirmative. In Emperor v. Baluram8, Sulaiman, J., dealing with the question whether a place was a public place within the meaning of section 13 of the Public Gaming Act which corresponds to section 12 of the Madras Gaming Act held that a vacant land which was private property and surrounded on three sides by fields and on the fourth by a stream was not a public place. In the course of the judgment the learned judge observed that " a place to which the public had not by right, permission, usage, or otherwise, access could not be a public place even though it were close to a public street so that any member of the public walking along the street could see what was going on there." It was further stated there that 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. In Ahmed Ali v. King-Emperor1, it was held that a private grove was not a public place although people could pass through it while going to the bazar its boundary wall being broken at places. Another decision that followed the ruling in Queen v. Wellard2 is Ramjank Patwa v. Emperor3. It was laid down there that gambling in a bamboo grove, a place where two foot-paths meet, was not a public place within the meaning of the Bengal Public Gambling Act. It is unnecessary to multiply decisions on this point. The principle deducible from all these decisions is that in order to constitute a public place within section 12 of the Gaming Act it is not necessary that the place should be a public property; but if 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. Applying the principle laid down in all these cases I must hold that the dilapidated house in which the petitioners were playing for money is not a public place within the meaning of section 12 of the Act. All that the prosecution has proved in this case is that it was an abandoned house by the side of the road and that there was a small betel-leaf shop nearby. The “prosecution” has not established that the public were as a matter of fact frequenting that place; on the other hand the testimony of the owner of that house is that his permission was sought to enter the house and it was not disbelieved by the Courts below. It is also in evidence that the house is surrounded by compound walls on all sides. It is also in evidence that the house is surrounded by compound walls on all sides. I therefore hold that the petitioners are not guilty of an offence under section 12 of the Madras Gaming Act and therefore they are entitled to an acquittal. The conviction and sentence passed on the petitioners are set aside and the fines if paid will be refunded to them. The order of confiscation of the money seized from the petitioners is also vacated. The money seized from the petitioners will be returned to them. V.S. ----- Petition allowed.