JUDGEMENT
J.M.SHELAT -
(1.)MR. Trivedi however raised a point of law and contended that the ladies waiting room at this railway station cannot be said to be a plane to which the public have or are permitted to have access and therefore sec. 12 of the Act would have no application. He argued that Male passengers are excluded though they have railway tickets with them from entering this room and an entry into this room by a male passenger even with a railway ticket of the necessary class is prohibited and made punishable under sec. 119 of the Railways Act. A section of the public having been thus excluded from the use of this room would preclude the ladies waiting room from being a place to which the public have or are permitted to have access He contended that if the Legislature wanted the word public also to include a section of the public viz. only the female passengers with railway tickets of the necessary class the Legislature would have used the words the public or a section of the public. That not having been done we would not be justified to treat the ladies waiting room at this station as a place to which the public have or are permitted to have access. It is clear from sec. 12 that the important words in this part of the section are the words a place to which the public have or are permitted to have access. Now there can be no doubt that railway platforms are places to which any member of the public has and is permitted to have access. The fact that a platform pass is necessary for one to enter into such a platform makes no difference as the platforms are for the use and benefit of the public and the members of the public are therefore permitted to have access to such platforms. A condition may be attached to the entry by the public viz the possession of a platform pass. But such a condition obviously is to avoid over-crowding and is no restriction to the general permission given to the members of the public to have access to the platform. Likewise the public or municipal parks are places to which the public have or are permitted to have access. Similarly a municipal zoo would also be a public place as the public have or are permitted to have access. It may be that a condition may be attached to the entry at such places such as a ticket or a fee nevertheless that condition does not preclude such a park or zoo from being considered a place to which the public have or are permitted to have access. The test of a place being a public place is whether it is open to the members of the public or not even though there may be certain conditions attached to the entry or the use thereof. What is required is that such a place must be open for entry by an indeterminate number of the members of the public and must not be open only to a definite or a determinate number. The question as to the meaning to be attached to these words arose in Emperor v. Mangubhai Dahyabhai 32 Bom. L. R. 790. The accused there were found gambling in a hotel (tea shop) in the city of Surat. They were tried and convicted of the offence under sec. 12 of this Act and sentenced to pay a line of Rs. 100.00. It was held by Mirza and Broomfield JJ. that the expression in a place to which the public have or are permitted to have access includes a hotel. A reference was made in this decision to two earlier decisions of the same High Court Emperor v. Hussein 8 Bom L.R. 22 and Emperor v. Chennappa 15 Bom. L R. 101. It is clear that the decision in Emperor v. Hussein was given prior to the date of the amendment of section 12(a) which inserted into this section the words or thoroughfare or in any place to which the public have or are permitted to have access. With regard to the decision in Emperor v. Hussein the learned Judges in Emperor v. Mangubhai observed that though section 12 of the Act was quoted in the footnote of the report of the case it was not clear from the report whether the section which the Court was considering was the old section or the one since its amendment in 1910. They observed that these words in section 12(a) of the Act would include a hotel for the public have a right to go to the hotel provided there is accommodation available in it and can be said to have or are permitted to have access to it. They further observed that it was no longer necessary to interpret the word place appearing in this section ejusdem generis with the words public street and thoroughfare and that the object of the amendment in 1910 was to free the word place which had been originally used in that section from the restricted meaning which it was held to bear appearing as it did between the expression public street and the word thoroughfare. The test therefore that was laid down in this decision was whether the public have a right to go to a place concerned even though the entry or the use of such a place was governed by limitations such as limitation of accommodation. Though the owner of a hotel has a right to exclude a person on the ground of want to accommodation it would be no consideration to hold that therefore it is not a public place. If a hotel or a tea shop is a place to which the public are said to have or are permitted to have access there can be no reason to hold that a waiting room at a railway station is not a place to which the public have or are permitted to have access. The very words permitted to have access would seem to indicate a condition attached to the entry or the use of such a place and yet it would be a public place within the meaning of sec. 12 of the Act. Waiting rooms at railway stations are obviously for the facility of the members of the public who travel by railway. It is also clear that it is for the convenience and facility to the members of the public that two such rooms are provided for one for the use of female passengers and the other for the use of male passengers. But it must be borne in mind that female passengers of all classes holding railway tickets of certain classes are entitled to and are permitted to have access to the ladies waiting rooms. Merely because one of the two rooms has been reserved for a section of the public does not mean that it is a place to which the public have no access or are not permitted to have access. The mere fact that a ladies waiting room is reserved for a part of the public cannot take out such a waiting room from the definition in sec. 12. MR. Trivedi next referred us to the decision in Badr-ud-din v. Emperor 21 Cr. L. J. 691. This was a decision under the Public Gaming Act and not under the Act under consideration. It was there held that the place near a water tank in the outskirts of a railway station was not a public place within the meaning of sec. 13 of the Public Gaming Act. The place where the water tank was situate obviously was not a place to which the public would have access or would be permitted to have access. But apart from that factor the words used in sec. 13 of the Public Gaming Act are not the same as those used in sec. 12 of the present Act. This decision therefore would have no application. Reference was also made to the decision in a Tahirali v. Emperor 37 Cr. L J. 876. It was a case under sec. 12 of the Bombay Prevention of Gambling Act. The accused in that case were found playing in a private garden belonging to one Abdul Hussein to which only such respectable members of the public as the owner permitted had access. It was argued that such a garden was not a public garden but a private garden. It was there held that no distinction can be made in construing the expression any place to which the public have or are permitted to have access between a right conferred on the public by a statutory provision or resolution of a Municipality and a right conferred on the public by a private owner. The deciding factor was not whether the place is or is not owned by a private individual or a statutory body but the use to which it is put. If a private owner invited either expressly or by implication the public generally to enter his garden then so long as that invitation is extended to the public generally so long the garden is a place to which the public have or are permitted to have access within the meaning of the section. The fact that the owner reserves to himself the right to exclude undesirables is not the deciding factor. This decision in our view is contrary to the submission made by MR. Trivedi and it is difficult to understand how it can possibly help the accused. Reference was also made to State v. Maganlal Panachand A. I. R. 1953 Saurashtra 112. But the question there was whether a room occupied by a lodger in a hotel would be a place to which it can be said that the public have or are permitted to have access.
(2.)IT was there held that even though the hotel can be said to be a place which would fall within the scope of sec. 12 a room in such a hotel occupied by a lodger in consideration of his having paid a certain amount cannot be said to be a place to which the public have or are permitted to have access. Lastly Mr. Trivedi referred to Emperor v. Somabhai Govindbhai 40 Bom. L. R. 1082. IT is true that in that case a Full Bench of the High Court of Bombay considered the decision in Emperor v. Jusab Ally 7 Bom. L. R. 333 as having been correctly decided and certain observations made by Broomfield J. there would at first sight appear to be in favour of the contention of Mr. Trivedi. IT is however clear from the reading of that decision that the earned Judges were not concerned with the interpretation of the word place in sec. 12 but were concerned with altogether a different question. The accused in that case was arrested at Anand Station which undoubtedly was a place to which the public have access. On being searched he was found to be in possession of a substantial amount of money which he was taking to another place for the purpose of distribution. Certain chits which were instruments of gaming were also found from his possession. He was charged under sec. 12 of the Act for gaming in a public place viz Anand Station. IT was contended on behalf of the State that taking into consideration the definition of the word gaming in conjunction with the provisions of sec. 12(a) any one who is doing in a public place any act intended to aid or facilitate betting or the other matters referred to in the definition including the distribution of winnings shall be punishable under sec. 12. That contention was negatived and it was held that before an accused can be convicted under sec. 12 the prosecution would have to establish that gaming at a public place that is to say the place to which the public have or are permitted to have access had actually taken place. The decision in Emperor v. Somabhai Govindbhai being clearly on a question quite different from the one which is before us can hardly be of any assistance. In our view the learned Magistrate was wrong in finding that the ladies waiting room at Jetalsar Railway Station was not a place to which the public have or are permitted to have access. Appeal allowed
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