Batty, J.:— The only question in this case is whether gambling in a machwa which was chartered by the accused and was used by them for the purpose in the Bombay Harbour could be said to be gambling in a public place, street, or thoroughfare, within the meaning of s. 12 of the Bombay Gambling Act. The first two of these phrases, viz., ‘place’ and. ‘street’ have unambiguous meanings attached to them as legislative expressions by Judicial decisions. The second of them, the word ‘street,’ is manifestly inapplicable in this case. It is contended that the third expression, thorough are/is applicable to the Bombay harbour in which tth machica containing the gambling party was found. We do not think that it can be said of the accused that they were gambling in a public place or thoroughfare in the ordinary acceptation of those terms. We think that the word ‘place’ which is patient of many different meanings, must necessarily, in each instance in which it is used by the Legislature, be construed with reference to the intention to be inferred from the context. Thus, it is obvious that when used, as in s. 12 of the Bombay Gambling Act, or in s. 3 of 36 and 37 Vict. c. 38, in connection with such words as roads, streets, and thoroughfares, it has a very different meaning from that which it bears in s. 4 of the Bombay Gambling Act, and from that given to it in connection with s. 8 of 16 & 17 Vict. c. 109, by judicial decisions in Shaw v. Morley (1); Bows v. Fenwick (2); Gallaway v. Maries (3) Liddell v. Loft-house (4); Me Inamey v. Rildreth (5); or in Powell v. Kemption Park Race-course Company (6), where the Court of Appeal disapproved Hatoke v. Dunn (7).
2. These cases just cited construe the word when used with such words as house, room, or office, as meaning a “defined” or “ascertained fixed spot,” that is with certain circumscribing limits and so far ejusderm generis with a house, room or office. And in Snow v. Hill (8) where the appellant had been “simply walking about the field” it was held that he did not come within the purview of the Act 16 & 17 Vict. c. 119. That Act treats of houses, rooms, offices or other places opened, kept, or used for the purpose of the owner & c, betting with persons resorting thereto. The mischief aimed at in s. 3 of that Act and in s. 4 of the Bombay Gambling Act is a mischief clearly distinct from that aimed at in 36 & 37 Vict c. 38 and in s. 12 of the Bombay Gambling Act. In the first two enactments mentioned, the mischief aimed at is the practice of individuals making a profit by providing a spot of their own selection known as a place where gambling is to be carried on, and making a livelihood by attracting people to a place which they would not otherwise frequent. In the other two enactments, however, the offence is not that the individual members are making 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 the one case comparative privacy for profit* in the other the bad public example and accessibility to the public, would seem to constitute the gravemen of the offence. Thus the very fact that special accommodation and privacy had been furnished, which would be essential in a ease under s. 4 of the Bombay Gambling Act, would be a ground for excluding the case from the purview of s. 12. If people gratuitously allow gambling on their private premises, the law does not interfere with them, presumably because in that case they have no special inducement to tempt outsider 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. Thus an omnibus may be a public place for the purposes of an enactment aiming at acts committed ad commune nocumentum: Queen v. Holmes (). So may a roof at the back of a house, exposed to view, where the offence consists in exposure: Queen v. Thallman (). But gaming in a Railway carriage which was not being used or travelling along the line, but was shunted away in a yard or warehouse, was held not to be playing or betting in an open and public place: Ex parte Freefone (). The obvious ground of distinction is that the public had no right of access to the carriage and that the gaming not so exposed as to be patent to the passer-by. In Langlish v. Archer (), on the other hand, where the Railway carriage in which gaming was going on was travelling on its journey it was held to be a public place within the meaning of 36 & 37 Vict. c. 38, s. 3, because the public had access thereto. And obviously any person getting into such a carriage would at once have the fact that gambling was going on there, forced on his notice. But we think that in the case of a machtca chartered by private party, the public had not such right of access as would suffice to bring the gambling carried on in it within s. 12 of the Bombay Gambling Act. It is true the machwa was in the harbour which may be regarded as a thoroughfare for certain purposes. But a machwa is not exposed to the public view of persons using that particular kind of thoroughfare in the same way as a carriage is in a public street-It is rather of the nature of an enclosure, and we do not think it reasonable to suppose that anybody using the harbour as a thoroughfare in the ordinary way, could have known the use to which the machwa was being put. In the case of Queen-Empress v. Sri Lal (), a Chabutra, a terrace or platform adjoining a public thoroughfare, was held not to be a public place within the meaning of ss. 159 and 160, Indian Penal Code, because the public had not a right of access thereto, though “it was visible from the thoroughfare, and the public could see what was taking place.” But the case of a machwa in the harbour is, we think, much stronger, for it would be, in our opinion, unreasonable to suppose that the public in the ordinary exercise of their right of user of the harbour could have known that gambling was going on in it. The section aims at gambling in a public place or thoroughfare and ordinarily applies to persons sitting on or near a road or public place with no intervening obstruction to the public view where there is voluntary publicity. In our opinion, without straining words, the machwa must be considered to have been a place within the meaning of s. 4 rather than of s. 12, being more of the nature of a house or room than of a place ejusdem generis with a street or thoroughfare. Had it been so used for the profit or gain of any person owning, occupying, using or keeping it, then the case would we think have come within ss. 3 and 4 of the Bombay Gambling Act. But what the party apparently aimed at was seclusion and not publicity, and we think that their manifest object of avoiding notice would have been attained as far as the public was concerned and that save for the exceptionally close scrutiny of the Police, the structure sufficed to exclude both the access and the observation of the public. We desire to add that the view we take in this particular instance by no means involves as a corollary that people gambling in a carriage in a street or ordinary thoroughfare, would be exempt from liability under s. 12. We do not think that the accused in this particular case were in a similar position and reverse the convictions and sentences passed on the accused.