The Public Prosecutor vs Tharanipathy

Somasundaram, J.—This is an appeal against the acquittal of the respondent for an offence under S. 49A (3) of the Madras City Police Act on 17th August, 1956. the Sub Inspector P. W. 1 found at about 6 p.m. the accused receiving bets on New York Cotton Price figures from another person who actually handed over cash to the accused and received in return a betting slip from the accused, but the place from which the accused was receiving the bets was from the pial of his house The question is whether when a person who is the owner of the house was found gaming on any of the objects specified in Sub S. (1), from the pial of his own house he can be said to be gaming in any public street or thoroughfare or in any place to which the public have or are permitted to have access. S. 49A, Cl. (1) (a) is as follows

Whoever being the owner or occupier or having the use of any house, room, tent, enclosure, vehicle, vessel, place, opens, keeps or uses the same for the purpose of gaming etc.

The respondent being the owner of the house, he was undoubtedly using his pial as a place for the purpose of gaming; and that will certainly fall under Cl. (1) of S. 49A of the Act. But the respondent has been charged only under S. 49A, Cl. (3) on the ground that he was receiving bets from the public and though it is his private pial he must be deemed to be found gaming in any place to which the public have or are permitted to have

access. Cl. (3) of S. 49A of the Act is as follows:

Whoever is found gaming on any of the objects specified in Sub S. (1) in any public street or thoroughfare, or in any place to which the public have or are permitted to have access shall be punishable etc.

If a person owning the house, games from the pial of his house, notwithstanding the fact that he allows the public to have access and takes bets

from him, then clearly the case will fall under S. 49A (1). It seems to me that the meaning to be given to the expression ""in any place to which the

public have or are permitted to have access"" should be eluded generic with public street or thoroughfare, that is to say, it must be a place to which

the public have either a right of access or grant of access as per the definition of "public place" in the Act. The facts of this case will fall more

properly under Cl. (1) and not Cl. (3). The prosecution is only for an offence under S. 49A (3). The lower Court was well justified in acquitting the respondent under that clause as the pial of a private house will not fall within the scope of Cl. (3) of S. 49A of the Act notwithstanding the feet that the owner or user or occupier invites the public to come to the house and thereby makes use of the house or place. The acquittal by the lower

Court, therefore, for an offence under S. 49A (3) cannot be said to be wrong. The prosecution being for an offence under S. 49A, Cl. (3) and the acquittal being justified, I do not think that it is fair to the accused to bring him here in appeal within the scope of S. 49A, Cl. (1) of the Act though the case against him may also fall within that provision. The definite case of the prosecution being negative, very rightly, by the lower Court, the appeal has got to be dismissed and it is accordingly dismissed.