ORDER M.N. Shukla, J. - This revision raises the question of interpretation of Section 13 of the UP Public Gambling Act (UP Act III of 1867), particularly the explanation added thereto by the UP Public Gambling (Amendment) Act, 1952. The Applicants were convicted u/s 13 of the said Act (hereinafter called the Act) and sentenced to a fine of Rs. 50/- by the Tahsildar Magistrate Second Class, Sadabad, Mathura. In default of payment of fine they were directed to undergo rigorous imprisonment for one week. The conviction and sentence were affirmed in appeal by the Assistant Sessions Judge, Mathura. Hence, this revision. 2. The prosecution case in short was that the accused were gambling in the night of 23-11-1966, at the bhatta of one Lala Jagdish Prasad near a public road and they were arrested from there at about 10 p.m. when they were engaged in the game. 3. The Applicants denied the charge and stated that they had been arrested from the house of Ghanshyam where they had collected in connection with a kirtan. 4. The learned Magistrate made a local inspection of the place of occurrence and drew up a site plan, though he appears to have lost sight of it while delivering the judgment. However, a perusal of the site plan makes it abundantly clear that the alleged gambling was being carried on at a place marked A in the site plan in the bhatta or field of Lala Jagdish Prasad. Adjacent to the western side of the bhatta is a footpath and thereafter the public road. It is also clear from the site plan that the bhatta is separated from the road on, its western side by a mendh which is only four feet high and which is also covered by bushes of moonj (a kind of grass of which strings or ropes are made). 5. I have heard the learned Counsel for the Applicants at some length and also the counsel for the State. It was urged on behalf of the Applicants that the place where the gambling is alleged to have been going on was not a 'public place' within the meaning of that term as used in Section 13 of-the Act and consequently the conviction of the Applicants was contrary to law. Several broad tests can be suggested for ascertaining as to whether a certain place is a "public place" or not. Several broad tests can be suggested for ascertaining as to whether a certain place is a "public place" or not. For the sake of brevity these tests may be described as visibility test, free access test and what I am inclined to add as effectiveness test. This third addition appears to be particularly necessary as a consequence of the addition of the explanation to Section 13 by the Amendment Act of 1952. The visibility test was discarded in a decision of this Court and was made to yeild place to free access test which was adjudged as a more sound and dependable test. In Chuttan v. State 1954 ALJ 487 the criterion approved of by Brij Mohan Lal, J. was that the legal right to claim access was not material; what was to be considered was as to whether in point of fact the place of gaming was actually accessible to the public or it was a restricted place so as to be inconsistent with free access. It was observed that the, test is whether members of the public have, as a matter of fact, a free access to it. If they do reach the place without let or hindrance, it is a "public place", but if the entry is regulated by permission or is otherwise restricted, it is not a "public place". Thus, if normally a place is not visited by the public, not necessarily on account of some extrinsic difficulty such as the posting of a watchman but even otherwise, i.e. for some other reason, it is a private place. If it is not actually subject to any public user, it will not be a "public place". On the contrary, even a place which may according to its legal character be a private place, but is freely accessible to the public and the public actually reach there freely, will cease to have the character of a private place for the purpose of Section 13 of the Act. Thus, not merely the legal but actual accessibility has to be seen. The former may be a factor in determining the same but it is not conclusive of it. 6. As regards the visibility test, Brij Mohan Lal, J. observed as follows: It is equally immaterial whether it is visible from a public place or road or is screened from view from a thoroughfare. The former may be a factor in determining the same but it is not conclusive of it. 6. As regards the visibility test, Brij Mohan Lal, J. observed as follows: It is equally immaterial whether it is visible from a public place or road or is screened from view from a thoroughfare. The gambling maybe going on in the verandah of a house abutting on a public road but there may be a person on duty in the verandah to prevent persons from entering the verandah. If such is the case, the verandah will not become a "public place", notwithstanding the fact that it is visible to the passersby. On the contrary, there may be a case where gambling may be going on in the innermost room of a house but the members of the public may be finding free access to the said room. In such a case the room in which the gambling is going on will become a "public place". I am in respectful agreement with the view expressed in Chuttan's case (supra) and in my opinion it is really the free access test which is the most comprehensive and reliable. 7. We must be alive to a certain new element which has been introduced by the addition of the Explanation to Section 13 of the UP Gambling Act which reads as follows: Explanation--For the purpose of this section "public-place" includes any open space situate adjacent to and abutting a public street and not separated therefrom by a boundary wall. The effect of the Explanation is that if the prosecution discharges the initial burden of proving that the gambling was going on in any open place situate adjacent to and abutting a public street and not separated therefrom by a boundary wall, a presumption can be drawn that it was a "public place" until the accused person is able to establish that it was actually separated from the public street by a boundary wall. The word "separated" must be given it full weight in this context. It is possible to visualise a wall which may not actually achieve the object of separating the place from the public street and making it what might be described as a sheltered place. Therefore, ultimately the effectiveness of the boundary was its nature, its dimension, its size, its height etc. It is possible to visualise a wall which may not actually achieve the object of separating the place from the public street and making it what might be described as a sheltered place. Therefore, ultimately the effectiveness of the boundary was its nature, its dimension, its size, its height etc. would determine as to whether the place has been actually separated from a public street within the meaning of the expression used in the Explanation to Section 13 of the Act. It is not correct to apply a far-fetched or highly remote standard for judging the effectiveness of the boundary wall. The wall may not be proof against the ingenuity of a daring, thief or burglar. Generally what has to be considered is whether without recourse to any extraordinary feat it is possible for a person to walk over and cross the boundary with normal facility or he will be faced with real obstruction. If this be the position then the mere apology of a boundary wall will not necessarily exclude a case from the mischief of the Explanation to Section 13. Hence, without laying down any absolute rule in this regard, it is only possible to indicate certain broad features to which I have adverted above for deciding whether the case is covered within the ambit of Section 13 of the Act. 8. The learned Counsel for the Applicants has relied on a decision of this Court by Mahesh Chandra, J. in State of UP v. Ram Bahadur 1967 AWR 647 for the proposition that, the burden of proof was on the prosecution to establish that the open space was adjacent to and abutted a public street and that it was not separated therefrom by a boundary wall. There is No quarrel with that proposition but that case is distinguishable on facts. In the present case it was proved by the prosecution that the open space where the gambling was going on was adjacent to and abutted a public street and that it was separated by a kachcha mendh which was only 4 feet high. It is not every boundary wall or mendh of any description which would exclude the applicability of the Explanation to Section 13 of the Act. It is not every boundary wall or mendh of any description which would exclude the applicability of the Explanation to Section 13 of the Act. In my opinion it is ultimately the free access test which must prevail and that would depend on whether the boundary wall in question is really effective in the sense that it separates a place from the public street so as to make it inaccessible. The boundary wall must be reasonably effective before an accused person can elude the bounds of the Explanation to Section 13. But it must be borne in mind that the existence of a boundary wall raises a presumption that the place is a public place and the onus is on the prosecution to establish that the wall is not effective. 9. Applying these tests to the facts of the present case we find that the alleged boundary wall was in the shape of a kachcha mendh, four feet high and covered with bushes of moonj and the place where the gambling was going on was the field of Lala Jagdish Prasad. It is manifest that the place was without difficulty accessible to the public. It was abutting the public road and the nature of the boundary wall was not such as to make it not amenable to free access. The prosecution has successfully discharged the burden of proving that the place was not "separated" by a boundary wall as contemplated by the Explanation to Section 13. That being the position, in my opinion the Applicants were guilty of the offence u/s 13 of the UP Gambling Act and were rightly convicted. 10. I, therefore, affirm the conviction and sentence of the Applicants and dismiss this revision.