John Beaumont, Kt., C.J.
1. In this case the accused was an Assistant Station Master at Khanapur on August 28, 1936, and on that day he is said to have abused one Mr. Joshi, a pleader of Belgaum, and he is being charged with an offence under Section 120 of the Indian Railways Act. He took a preliminary objection that Section 120 did not apply to acts done by a railway official when acting in his official capacity. The learned Magistrate overruled that preliminary objection, and his decision was upheld by the Sessions Judge of Belgaum in appeal. The accused now applies to this Court in revision.
2. Sections 99 to 105 (inclusive) of the Indian Railways Act deal expressly with offences by railway servants. The group of sections is headed 'Offences by Railway Servants.
3. Section 106 starts a new group of sections under the heading 'Other Offences,' and Section 120 falls within that group.
4. It is contended by the applicant that the sections falling under the head 'Other Offences' deal with offences by passengers or other persons using a railway company's property, but not with offences committed by railway servants acting as such. On the other hand, the view which prevailed in the lower Courts is that Section 120 is expressed in sufficiently wide language to cover acts done by a railway servant.
5. The section so far as material is in these terms :-
If a person in any railway carriage or upon any part of a railway-
(a) is in a state of intoxication, or
(b) commits any nuisance or act of indecency, or uses obscene or abusive language, or
(c) wilfully and without lawful excuse interferes with the comfort of any passenger or extinguishes any lamp.
he shall be punished with fine which may extend to fifty rupees, in addition to the forfeiture of any fare which he may have paid and of any pass or ticket which he may have obtained or purchased, and may be removed from the railway by any railway servant.
The whole of the last paragraph suggests that the section was not intended to cover an act done by a railway servant in the course of his official duties. It can hardly be supposed that the legislature intended that if a Station Master uses abusive language to some porter, who has committed some fault, the Station Master can be removed from the railway by another porter. It would be opposed to the maintenance of good discipline for a senior railway official to be removed from the railway by a junior official.
6. It is to be noticed also that some of the sections constituting offences by railway servants cover the same grounds as sections dealing with 'other offences'. For instance, Section 100 makes drunkenness by a railway servant an offence, which may be punished with imprisonment up to one year, and Section 120(a), as I have pointed out, deals with intoxication, which is only made punishable by a fine which may extend to fifty rupees; and Section 101 deals with offences by a railway servant endangering public safety, whilst Section 129 deals with an act by any person endangering public safety, the former section involving a heavier penalty. In my opinion taking the sections of the act as a whole, there can be no doubt that Section 120 is not intended to include any act done by a railway servant acting as such. The offences specified in Section 120, if committed by railway servants, can well be dealt with by departmental action. That view has been taken by the Court of the Judicial Commissioner in Sind in the case of Mulchand v. Emperor A.I.R (1929) Sind 249 (1). On the other hand, the opposite view has been taken by the High Court of Madras and the High Court of Patna; the first case being Cuffly v. Emperor Muhamadali Muhammad Ibrahim Sahib (1918) 19 Cri. L.J. 313, and the second case being gurunath K. Appal Swamy v. Emperor : AIR1934Pat52 . I prefer the Sind view. That being so, we must allow this application, and direct the learned Magistrate to allow the preliminary objection and hold that no offence is disclosed under Section 120 of the Indian Railways Act.
N.J. Wadia, J.
7. I agree.