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Bombay High Court
Emperor vs Fattu Mahomed Sher Mahomed on 11 June, 1913
Equivalent citations: (1913) 15 BOMLR 689, 20 Ind Cas 609
Author: Batchelor
Bench: Batchelor, Shah


Batchelor, J.

1. In this case the two petitioners have been convicted under Section 4 (a) and (c) of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), the petitioner No. 1 “Being the owner or occupier or having the use of a house, room or place and keeping or using the same for the purpose of a common gaming house, and petitioner No. 2 having assisted in conducting the business of such house, room or place.

2. The only point upon which the propriety of the convictions is challenged on behalf of the petitioners is whether the particular spot on which the petitioners and the others were found to be gaming may be rightly described as a ” place ” within the meaning of Section 4 (a) of the Bombay Act.

3. The facts are that this particular spot resembles in all essentials what is usually known in this country as a chok. It is a small open space surrounded by houses on all sides and is accessible only by a narrow lane on which is a sign board pointing to the chok. Of this space the first applicant is the lessee in occupation. At the time the alleged offence was committed the spot was open to the sky, though shortly before the date of the alleged offence there had been standing on the spot a zinc roofed shed. That, however, had been removed, perhaps only temporarily removed, before the date of the alleged offence. In these circumstances we have to decide whether such a spot is a place within Section 4 of the Act. That section provides for the punishment of any person who, being the owner or occupier or having the use of any house, room or place opens, keeps, or uses the same for the purpose of a common gaming house.

4. Now these words closely follow the words of the English Betting Act, 1853, 16 & 17 Vic. c. 109, Sections 1, 2 and 3 which prohibit the use for betting of any ” house, office, room or other place.” There is, we think, no reason to suppose that the word “place” in the Indian Statute has any more-narrow or restricted meaning than it has in the English Statute. As to the meaning of the words in the latter Act, we have the highest authority from England. In Bows v. Fenwich W the defendant was on a race-course standing on a stool over which was a large umbrella similar to a carriage umbrella. He was calling out offering to make bets and was seen to make several bets. It was held that he was using a fixed and ascertained place for the purpose of betting and had been properly convicted under the Statute. Though the spot was determined only by a moveable stool and a moveable umbrella, Lord Coleridge C. J. said : ” It was an ascertained spot where the appellant for the time at least carried on the business of betting with all persons who might resort thither for that purpose.” Mr. Justice Denmanin agreeing said that “it was enough that there was a piece of ground ascertained and appropriated by the appellant for carrying on his proceedings.” In Powell v. Kempton Park Racecourse Company [1899] A.C. 143 the construction of the Statute was explained by the House of Lords. It was there decided that betting in Tattersall’s Ring on the Kempton Park Racecourse was not within the prohibition, because it was not in a place kept or used for betting; ‘but as to the meaning of the word place and of the requirements of the Statute, we have the speeches of the Earl of Halsbury, Lord Chancellor, and Lord James of Hereford who formed part of the majority of the House. Lord Halsbury said (p. 162):-

I do not think, therefore, that the important question is, what is a ‘place.’ I think in this respect with Rigby L.J. that any place which in sufficiently definite, and in which a betting establishment might be conducted, would satisfy the words of the Statute.

5. Lord James of Hereford said (p. 194):-

Speaking in general terms, whilst the place mentioned in the Act must be to some extent ejusdem generis with house, room, or office, I do not think that it need possess the same characteristics; for instance, it need not be covered in or roofed. It may be to some extent, an open space. But certain conditions must exist in order to bring such space within the word place.

There must be a defined area so marked out that it can be found and recognized as ‘ the place’ where the business is carried on and wherein the 1l£ bettor can be found. Thus, if a person betted on Salisbury Plain, there would be no ‘ place’ within the Act. The whole of Epsom Downs or any other race-course where betting takes place would not constitute a place; but directly a definite localization of the business of betting is effected, be it under a tent or even moveable umbrella, it may be well held that a place’ exists for the purposes of a conviction under the Act. If this view be correct, I think that the enclosure existing at Kempton Park might, physically speaking, under certain conditions constitute ” a place ” within the meaning of 1st and 2nd sections of the Act of 185s. it is a defined space limited by metes and bounds, and of such an area that a person therein carrying on the business of betting can be found.

6. On the authority of this decision it seems to us that the particular area with which we are here concerned must be pronounced to be a place within the meaning of Section 4. It is a small area limited by metes and bounds, being surrounded on all sides by buildings, and it is this particular area which the petitioner No. 1 has appropriated for the business of betting by becoming the lessee in occupation of it. There has, we think, been such a localization of his business by this betting man as converts the locality into a place within the enactment.

7. This being so, in our opinion the convictions are right and the rule must be discharged. Rule discharged.

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