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SERAHAMY v. RANKIRA.P. C., Avieawella, 11,460.
Unlawful gaming—Public place—Ordinance No. 17 of 1889—Previous cohvictions—A dmissions by accused—Mode of recording them.
Taking part in a game of cards on a threshing floor or kamatha commonto several paddy fields, and accessible to the public, who in fact haveaccess to it, though not of right, is unlawful and punishable underOrdinance No. 17 of 1889.
Admissions of accused parties as to previous convictions should bespecifically recorded in the very words used by them. The questionsput and the answers given should be taken down, if they are to haveany probative value.
HREE persons were accused and convicted under the GamingOrdinance, No. 17 of 1889, of unlawful gaining with cards
on 12th April, 1904. The gaming was carried on on a kamathaor threshing floor, which is an open bit of ground in the midstof paddy fields. It is visible from and within hearing distanceof a public cart road, and alongside of it is also a footpath usedby villagers.
The Police Magistrate found as follows : —
‘‘ Two of the witnesses for the prosecution had access to thethreshing floor. The witness called ‘ Muhandiram, ’ who appearsto be a respectable man, and has no reason whatever to give falseevidence, says that the sounds of gambling at this place are heardeven from the high road (Ratnapura road). I hold this threshingfloor is a place to which the public had access, though not ofright. ”
The accused appealed, and the case was argued before Sampayo,A.J., on 27th June, 1904.
Browne, for appellant.—The kamatha is not a place to whichthe public have access, whether as of right or not. In Pererd v.Perera, 2 C. L. B. 6, Burnside, G.J., held that the word “ access ”in section 3 of the Ordinance No. 17 of 1889 meant legal access,i.e., access as of right or by the express or tacit license of theowner of the land, and not such access as would constitute atrespass against the owner. This view was over-ruled by Layard,0*.'J., in Eletone v. Marthelis Appu, 6 N. L. R. 256, and simplyconcurred in by Middleton, J., and Grenier, A.J. But the judg-‘ ixfbnt of Layard, C.J., has omitted to take notice of the words" as of right. ” How can the’ public not have a right of accesswhen they have a right of access ? The decision of BurnsideC.J., is the more correct one.
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Rimanithan, S.-G., for respondent.—The decision of Layard,C.J., in Elstone v. Marthelis Appu is intelligible. The publicmay have access to a place in fact, though not of right.Such
aocess cannot be spoken of as a right of access.
Cur. adv. vult.
80th June, 1904. Sampayo, A.J.—
The accused have been convicted of unlawful gaming under theOrdinance No. 17 of 1889. The accused and several otherstook part in a game of cards on 12th April last on a threshing flooror kamatha. .The kamatha was an open bit of ground in themidst of paddy fields, the owners of which used it in common.It is visible from and within hearing distance of a public cartroad, and alongside of it is also a footpath used by villagers. Itwas argued that this was not a “ place to which the public haveaccess, whether as of right or not, ” and the case reported in2 C. L. R. 6 was cited in support of this argument. But thatdecision was dissented from by' the Full Court in' Elstone v.Marthelis Appu, 6 N. L. R. 256, which I follow, inasmuch as thefacts of this case show that the kamatha in question is accessibleto the public, who in fact have access to it, though not of right.I therefore see no reason to interfere with the conviction.
The appellants have been fined double the amount awardedagainst the other accused, who was convicted, on the ground thatthey were previously convicted of similar offences. The previousconvictions were not proved, and there was no record, except inthe judgment, of any admissions on the part of the accused. Ifadmissions are to be depended on, the questions 'put and theanswers given should be specifically recorded. I cannot regardthe alleged previous convictions as having been established. Itherefore reduce the fine inflicted on the accused appellants to afine of Es. 25 each, and in default of payment such defaultingaccused will undergo rigorous imprisonment for a period of onemonth.
SERAHAMY v. RANKIRA