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enough to embrace a railway carriage on the line, which in itself is a
thoroughfare. The BomV^tty Prevention of Gambling A<?t 1887, makes
penal gaming in a public place or a public thoroughfare. As the Railway
carriage in question was on the line it was on a thoroughfare or a public
place and gaming therein cnme within the purview of the section. This
l)ccomes more clear when it is remembered that the carriage was not
exclusively reserved by the party of players and there were in the com-
partment other passengers who did not take any part in the play.



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220 The Criminal Law Joubnal Reports. [Vol. Ill

EHPEfiOB r. HUSSEIN NOOR MAHOMED.

This circumstanco distinguishes this case from that of Emperor v.
JxmdtaUy (1),

Cur. <idt\ rw//.

Jenkins^ (\ J. — Tlio accused in this case have been convicted as Wing
persons found playing for money against the provisions of section 12
of the Bombay P^e^'ention of Gambling Act 1887 in a railway carriage
forming part of a through special train running between Poona and
Bombay.

The only question is whether it was in a public place that the accused
were so playing. This depends on the meaning the word " pW^ " has
in section 12 of the Act. The word ^^pla^e " is, I think, qualified by the
word ^^j>Mic " and having regard to its context and its position in that
context, it must, in my opinion, mean a place of the same general character
as a road or thoromlfare^ else it was pointless to use the words street or
thorouffh/are as they are there used. To the Railway track as such the
public have no right of access except as passengers in the < 'Ompany V
train. Tlierefore I need not seriously consider the suggestion tliat the
accused were found playing in a public place, because the carriage in
which they were plajnng was on the railway track* To support the con-
viction it. must be shown that the railway carriage was a public place of
the same general cliaracter as a public street or thoroughfare. I would be
slow to place on the section an interpretation tliat would curtail its legiti-
mate scope, but I am unable to regard the railway carriage, in which the
accused were, a,** possessing such characteristics of, or bearing such a
general resemblance to, a street or thoroughfare as to justify us in holding
that it was a public place witliin the meaning of s. 12 of the Act, with
wliich alone we are concerned.

The con>ictiott and sentence nrast therefore be set aside and the fine,
if paid, refunded.

Sussell, J. — In this case the accused were charged and convicted of
the offence of gaiubling in a Special Bace Train on the way from Poona
to Bombay on the 2nd day of September 1905. The train was a second
class one and the Polic^e made their raid on it at what is well known as
the "Reversing station " between Khandala and Karjat. The game ihey
were playing was one known as Heart CVown and Anchor and it was not
disputed before us that they were gambling.

The only question is were tlie accused ganiMing in " a public street,
place or thoroughfare " within the meaning of s. 12 of the Bombay
Gambling Act.

(1) (1905) I. L. R, 29 Brnn. 386 ; 7 Pom. L. R. 333,



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Vol. Ill] ^HB Cruukal Law Journal Reports^ 221

EMPEROR v. HU^SEIK NOOR MAHOMED.

lu the Court \ye\ovr and before us the case was argued as if the only
point was whether the carriage, in which the accused were, comes within
tliose words in the section. But it appears to me that there are two ques-
tions inrolved.

1. Was that part of the railway line on which the train was where
the accused were arrested, " a public street &c."

2. Was the carriage in which the accu}?ed were playing ** a public
street, place or thoroughfare."

I prd|>ose to deal with these two points in tlieir order.

If either of these questions is answered in the negative the conviction
is bad and must be set aside.

1. In my opinion Mr. Branson was correct in saying that the adjec-
tive " puWic *' applies to all the three nouns — street, place or thoroughfare
and it is clear that the railway line certainly cannot be described as a
" public street or thoroughfare " inasmuch as it is not and cannot be used
by the public in the same way as they are in the habit of using " public
streets " and thoroughfares."

Railway Act IX of 1890, section 122, pro^^dcs inter alia *' if a person
unlawfully enters upon a railway, he slmll be punished with fine which
may extend to 20 Rs." and " unhiwfully " seems to mean without the
leave of the railway administration : see the second clause of this section.
Section 125 provides a jienalty when the owner or person in charge of
any cattle permits them to stray on a railway provided with fences suitaWc
for exclusion of cattie. Section 13 provides for the railway administra^
tion putting up (a) boundary marks or fence, (h) works in the nature of
a. screen near io or adjoining the side of any public road for the purpose
of preventing danger to jwssengers on the road by reason of horses or
other animals being frightened by the sight or noise of the rolling-stock
moving on the railway ; (e) provides for the erection of suitable gates,
chains, bars, stiles or hand rails where a raih\'ay crosses a public road or
the level and (4) prmides for the employment of persons to open or shut
such gates, cliains or bars. These provisions, in my opinion, clearly show
that the Legislature did not intend the premises of a railway to be public
and therefore it is im(K>ssible to describe the railway line and the ground
adjoining it between the places as either a public street, place or thorough-
fare. This view is borne out by the case of Lnpemtriv v. Vantnali ami
others (2), where a company which owned a mill on the one side of the
B. B. & C. I. Railway and a ginning factory on the other, and wliose
servants had entered on the railway premises without pennission of the
Railway Company to repair a pipe (which had been laid beneath the
(2) (18tM5) I. L. R» Jf^ Bom. 5;*5»



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222 The Criminal Law Journal Reports.. [Vol. Ill

EMPEROR r. H^^>SEIN NOOK 3L\H0MED.

railway liii^) and reservoirs (Iniilt on each side to preserve proi>er the
level of water), and it was held by this ( uurt that as the jujies and reser-
voirs 1>elonged to the mill conijiany and were kept in repair by them, they
as owners of the dominant tenement, had a right to enter on the premises
pf the railway compimy, the owners of the servient tenement, and effect
any necessary repairs, and that the entry in question being in the exercise
of that right, could not be called unhiwf III. The Magistrate in this ca^e
had convictcul the accused under section 122 of the Railway Act (IX of
IWO) and sejjtenced them to a fineof four annas each. Parsons, J. in
delivering his judgment observed : *' But it api)ears to us that a^ the pipe
aiul reservoirs belong to the (mill) company, and are kept in repair by
them, they as the dominant owners would have a right to enter on the
premises of the Railway company, the servient owners, to effect any
repairs that might be necessary. See the Indian Easement Act, section 24,
and Illustration (<(), and Colebeck v. GinUers Company (\\). The evidence
shows there was such nec(\s-ity at this time, the flow of the water through
the pipe being stop|KHl. An entry in exercise of a right, cannot be called
unlawful." From this case it follow> that an entry upon railway premises
not in exercise of a right or by permission of. the railway achninistration
would be unlawful : compare rouh/er v. ^Steadman (4) where a cab driver
was held not justified in refusing to leave the Railway comiwmy's i»remises
when requested on behalf of the company to do so although he believed
himself entitled to remain thereon because other drivers did so on payment
of certain sums to the Railway comjiany.

• It would be impossible for the . railway company to work its line^
wxjre we to hold thut the public should have access to them insidethe
fences without the permission of the cQnii>any. The place at which the
accused were caught ganibling, tv:. the Reversing station (at which froin
the evidence it is clear the train stopped for engine purposes only) was not
a place generally accessible to the public, who would not have any right
without the permission of the railway comjiany to be on the line at all.

2. The next point to consider is whether the Race Train in which the
accused w^ere caught at the Reversing Station was a " j)ublic place."

Looking at all the circumstances under which the train was being run
and the evidence of Mr. Muirhead T am of o[)inion that it was not. It was
U Special train — not bound to run unless a sufficient number of passengers
applied, it took no i)assengers in between Poona and Bomlmy, and I can
not think that it would be described as a train for the " public " carriage
of passengers. At the same time a good deal of the evidence that was
given was irrelevant, the point to be decided l>eing whether the train at

(3) (1876) 1 Q. B. D. 234. (4) (1872) L. R. 8 Q. B. 05,



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Vol. nil ^^^ Criminal Law Journal Reports.' 2^3

EMPEROR r. HUSSEIN NOOR MAHOMED.

that place, i, e. the Reverf?iDg Station could be called a '* public place."
What it might be at other places betweeu Poona and Bombay ??cems to my
mind irrelevant.

Several cases were referred to in course of the argument. The first
was Lanfjrhh v. Archer (5) where it was held that the railway carriage
while travelling on its journey was an " open and public place " or " an
open and public place to which the public have or are permitted to have
access.''

Now if the words in the statute l>efore ns were the same as in that, of
course the accused would have been rightly convicted, but in the statute
there referred to (3G & 37 Vic. c. 38), the words used are " open place to
which the public have or are ))ermitted to have access." The judgment of
Lord Coleridge shows that if these words had not been used the decision
would have been the other way.

In Kr parte Freestone (0) the prohibition (St. .5 Geo. IV, c. ^3, s. -I)
Svas from playing or betting '" in any street, road, liighway or in any other
open or jiublic i)lace '* and tlie conviction alleged tliat the defendants
jdayed in an open and public i)lace, to wit, a third class carriage used on
the L. B. and S. 0. Uailw^iy. It was held that the conviction could not
be supportetl as it did not appear that tlie carriage was then used for the
conveying of passengers. There Alderson, B. says '* these convictions
ought to be framed strictly witliin the w^ords of the Act, the object of
which was to prevent nuisances and gambling in the puhlic higli ways/'
It was also held tliiit it was consistent with the conviction that tlie offence
might have fedcen jdace in the third class carriage which although occa-
sionally used on 't1ie Railway \Vas then shunted away in the yarcf. There
however the words used *' other ojien and public place," a))i)ear to me to
distinguish that case from the present one.

In Enq)eror v. tfitsab Ally (7) Mr. Justice Batty who delivered the
judgment says at page 389, referring to. 30 k 37 Vic. c. 38 and s. 12 of
the Bombay (rambling Act :„, '*In these two enactments, however, the
offence is not that tlie individual members are niaking a profit at all, but
simply that they are 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. In t\\Q one case comparative privacy for profit, in the
other the bad public example and accessibility to the public, would seein
to constitute the gravamen of the otfence. Thus the very fact thjvt special
accommodation and privacy had been furnished which would be essential
(5) (1882) 10 Q. B. D. 44. (6) (1856) 25 L. J. M. C. 121.

(7) (1905) I. L. R. 29 Bom. 386 : 7 Bom. t. R. 333,



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22i IflE Criminal Law JoubnaIi Repobts. [Vol. Hi

EMPBROK r. HU«SEIN >'QOR MAHOMED.

in a case under section -k of the Bombay GramUing itct, wowW be a
groand for excluding the case from the purview of section 12. If people
gratuitously allow gambling on their private promises, the law does not
interfere with them, presumably because in that case they ha\'e no special
inducement to tempt outsiders to join them. The law does interfere,
however, if, whether for private gain or not, they expose temptation
where the general public have a right to come."

In Khudi Sheik and others v. KiH4/ Emperor (8) it was held that tlie
word *^* place*' as used in section 11 of the Grambling Act, (Bengal Code,
2 of 1867) must be a public place and was ejusdem yeneris with tlie other
words in the section, public market, fair, street or thoroughfare. Conse-
quently a thakurhari surrounded by a high comi)ound wall is not a public
place as contemplated by that section. In that case the learned Judge
says : — " The place must be of the same character as public market, fair,
street or thoroughfare.

"Now the gambling in this case took place within a Thakurhari sur-
rouiKled by a high compound wall. It is not a place where any member
of the public is entitled to go. The Sub-Divisional Magistrate, who con-
victed the accused, has held that it is a public place because "anybody
and everyljody was allowed to go in and come out.'' The ground, as
stated by the Magistrate, cannot be supported. Though in a Thakurlnxri
belonging to a Hindoo anybody and everybody woidd be allowed to go in,
yet the owner of the Thakurhari is entitled to prevent any particular
individual going in if he so chooses and. as a matter of fact men who are
not Hindoos are not allowed to go into a Thakurhct^V^ See also Durga
Prasad v. King Emperor (9). I am therefore of opinion,- t^d^ing the
object of tlie section before us to be what Mr. Justice Batty says it b, the
mischief aimed at by that section cannot possibly be said to have risen in
the present case. The second class carriage in a Special train in which
the accused werie playing cannot in my opinion \ye considered to be a
" public place " within the meaning of the Act. To get to that carriage
it wotild* be necessary to trei§pass U{>on the line unless the person so doing
had permission from the Railway Comfnuiy to cross the line. It is well-
known tliat persons standing on the line could not possibly see hito the
carriages in which these people were gambling.

Under these circumstances 1 am of opinion that to call or describe
either tlie railway line at the spot in question or the carriage in which the
accused were playing as coining within any of the terms, " public street,
place, or thoroughfare'' would be to place a wrong interprebitlon Upon
those words.

(8) (1901) 6 C. W» N. n. (9) (IIRM) « C\ W; K. m.



i



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Vol. Ill] The Criminal Law Journal Reports. 245

BINDE8RI SINGH r. EMPEROR.

For these reasons I am of opinion that the conviction recorded jaiid
sent^ice passed upon the accused must be set aside. Fine, if paid, to be
refunded.

Conviction and sentence reversed.



(3 A. L. J., 98; 26 A. W. X, 4^.)
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.
Jan. 8 [CRIMINAL REVISION No. 658 of 1905.] 1906.

Present : — Mr. Justice Richards.
BINDESRI SINGH r. EMPEROR.

criminal Procedure Code (Act V of 1898), section 476^8anetion to protecitte-^aUe
st4tteiHents~ Affidavit twarn by accused.

No one can be prosecuted in respect of false stateroenta contained in an affidayit sworn by
him in a case in which he was an accused person.

The facts of the case were as follows : —
One Jai Singh brought a charge under sections 379 and 323, Indian Penal Code, in the
Court of the Tahsildar against the accused. The accused made an application to the Magis-
trate fox transfer of his case on the ground that the charge was brgught at the instigation of
the Tahsildar, inasmuch as he had refused to give him some shisham wood. The application
was sui^rted by an aflftdavit swom by the accused. The case was transferred ^ind then
Jai Singh withdrew his complaint. The Magistrate then called upon Bindesri Singh to show
cause why he should not be prosecuted under section 193, Indian Penal Code, for making fa^se
by the statement referred to in the affidarit The accused showed cause, but an ordar was
made foit his trial. The Judge confirmed the ^rder.

J. Simeon^ for the accused.

L, M. Banerji (for A. G. A.\ for the Crown.

The following judgment was delivered by

Riclujtrdsy J, — In this case, which is an application to revise the order
made by the District Magistrate under section 476, in sanctioning the pro-
secution of applicant for an alleged offence under section 193 of the Indian
Penal Code, the facts are a little peculiar. It appears a prosecution was
instituted against Bindesri Singh under section 379, He made an appli-
cation to the District Magistrate asking that the case might be transferred
from the Court of the Tahsildar to his own Court, or some other Court.
He grounded his application upon a statement m?ide on oath in which he
made allegations of a more or less serious nature against the Tahsildar, but
the object was to get a transfer of his case on the grounds that the relations
between him and the Tahsildar were such that he would not get a fair trial
in the proceedings brought against him. It appears to be net an unusual
practice for the Courts to receive affidavits or statements on oath of accused



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226 The Criminal Law Journal Reports. [Vol. Ill

BINDESRI SINGH i\ EMPEROR.

persons for the purpose of applications for transfer, and the circumstances
of this case rather go to show that this practice, if even legal, is not an al-
together convenient one, and it certainly would appear that it would be
a better practice, that affidavits setting forth grounds for the transfer
should be made by some person other than the accused. The Magistrate
put forward the statement made on oath, which had been reduced to writ-
ing, to the Tahsildar asking him to make a report. The application was
made on the 22nd August, 1905. On the 23rd September the original
complainant, who had instituted proceedings against Bindesri, withdrew
his complaint, giving no reason for doing so, except that he was unable to
produce witnesses to support the charge. On the same day the Magistrate
ordered Bindesri to show cause why he should not be prosecuted in respect
of the statement he had made on his application for transfer. It certainly
does seem somewhat remarkable that after the application for the transfer,
the original complainant should have withdrawn his complaint. Applicant
wished to examine in support o£ his statement on oath, witnesses, but the
Magistrate did not hear them. The Tahsildar was not examined, and there
was really nothing before the Court except the uncontradicted statement
made oi^ oath by the applicant when he applied for his transfer. Under
these circumstances and inasmuch as the original prosecution had so sum-
marily come to an end, I am inclined to think that as a matter of discre-
tion, it would have been better not to have sanctioned any prosecution.
The statement made by the applicant was made for the sole purpose of
getting the transfer of his case. However, the matter of discretion b not the
question before me. The important question before me is whether or not
the statement made by the applicant, who was at the time an accused per-
son, ought to be made the subject-matter of a prosecution under section
193. In my opinion the principle has already been decided by this Court
in In the matter of the petition of Barkat (1). In that case an affidavit had
been made by the petitioner grounding an application in revision to get
rid of a conviction standing against him. Mr. Justice Blair there decided
that inasmuch as he was an accused person, he could not be prosecuted in
respect of false statements contained in the affidavit. The only distinction
between that case and the present case, is the practice I have referred to.
I am unable to S33 that this makos any difference in principle. I accord-
ingly set a^ide the order of the Sessions Judge and also the order of the
District Magistrate ordering the prosecution of the applicant and all pro-
ceedings subsequently. The bail bond will be discharged.

Sanction revoked,
(1) [1897] L L. R., 19 All., 200.



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Vol. Ill] The Crimikal Law Journal Reports. 227

In re mowjee liladhar.

(8 Bom. L. i?., 32.)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

Dec. 19 [CRIMINAL REVISION No. 136 of 1905.] 1905.

Present : — Mr. Justice Russell and Mr. Justice Aston.

In re MOWJEE LILADHAR.

Criminal Procedure Chde (Act V of 1898), sec, IB^^Sanctlon—Name </ the penon to
whom it u granted.

The sanction contemplated by s. 195 of the Criminal Procedure Code 1898 is not a sanc-
tion to any particular person to prosecute but a sanction to the Criminal Courts concerned to
take co^izance of certain offences specified in that section of which the Criminal Courts
cannot take cogm'zance except with the previous sanction or on the complaint of the authority
described in that section. The sanction whilst it is in force restores to the Criminal Courts a
jurisdiction of which the same section deprives them in respect of specified offences ami need
not even name the accused person.

The facts of the case are as follows : —

Mowjee Liladhar, lodged an information, in April 1901, in the Court of the Second Presi-
dency Magistrate of Bombay against Tullocksey Thakarsey and Likhawdas Yatchraj. He
stated in his information that in the preceding Diwali, he and one Murarji Sundarji started a
partnership business in grain, seeds &c. Tullocksey expressed his desire to become a partner,
but he rejected his proposal Tullocksey then suggesteil that he was willing to sei^e as a paid
Munim of the firm : he executed a regular Nokamama on a stamped paper and began to
manage the business of the firm as a paid Munim.

In February 1905, Mowjee drew three hundis for Rs. 600 each and asked Tullocksey to in-
quire as to the rate of discount. On the 3rd Mareh 1905 he brought the information that he
had found a bujrer for the Hundis. Mowjee entrusted the Hundis to Tullocksey for negotia-
tion, wrote a letter to the drawer and gave it to Tullocksey to be posted. It came to Mowjee's
knowledge that the latter instead of posting the letter, kept it with himself : and this aroused
Mowjee^s suspicions.

On the 11th Mareh 1905, Mowjee made a complaint to the Police; an inquiry was hekl in
the course of which Likhawdas Vatehraj was brought to the chowkey ; the three Hundis were
found in his possession as also the letter addressed to the drawee.

Under these circumstances Mowjee Liladhar charged, on the 8th April 1905, Tullocksey
with offences under ss. 381 and 408 of the Indian Penal Code, and Likhawilas under ss. 403,
109 and 411 of the Code.

The Second Presidency Magistrate, on the 24th May 1905, acquitted both the accused per-
sons and directed ''that sanction should issue for the prosecution of Mowji Liladhar under
S.211, Indian Penal Code, for bringing a false charge of an offence against Tullocksey and
Likhawdas and also for perjury under s. 195 of the Code, for stating falsely to the effect that
Tullocksey was employed as a Munim in this nsw business on a salary of Rs. 600 per annum.
The Court also hereby directs sanction to be given for the prosecution of Morarji Sundarji for
perjury under s. 195, Indian Penal Code, for stating falsely to the effect that Tullocksey was
employed as a Munim in the firm on a salary of Rs. 600 per annum.'^ On the same day, the
Magistrate passed the following further order : — "Mowjee Liladhar and Murarji Sundarjee are
ordered to be sent to the Court of the learned Fourth Presidency Magistrate for trial on charges
under s. 211, Indian Penal Code, and s. 195, Indian Penal Code, and are ordered to pass a bond
in a sum of Rs. 1,000 each with one surety in the like amount to attend the aforesaid Court
on Friday the 30th instant."



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228 The Criminal Law Journal Rkports. [Vol. Ht

In re mowjee liladhar.

Aggrieyecl by this order, Mowjee and Murarji applied to the High Court under its criminal
revisional jurisdiction.

Mr. Branson y with Mr. H. C. Coyaji^ for the petitioners.

Aston^ J. — In case No. 371/S. of 1905, in the CWrt of the Second
Presidency Magistrate, Mowji Liladhar charged Tnllocksey Thackersey



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 51 of 91)