1. This is an appeal by Government against the acquittal of the accused by a Bench of Honorary Presidency Magistrates on a charge preferred against him under Section 109(1) and 120(c) of the Indian Railways Act (IX of 1890). The question raised is one of some importance to railway companies, and to passengers who use the railways, because it involves the right of a railway company to reserve seats for passengers, and to see that the reservation is enforced against persons who disregard it.
2. What happened in this case was that the accused reserved a berth in a second class compartment on the Frontier Mail, leaving the Bombay Central Station on June 17, 1940, and he was issued a reservation) ticket. We have not got in evidence the actual ticket issued to him, but we have got a sample ticket issued for a different date, and an official of the railway company admitted in the witness-box that that sample was similar in character to the ticket actually issued to the accused. Some evidence was given by the reservation clerk that the accused was told that he could' only have an upper berth; on the other hand, the accused said that he was told that he could have a lower berth. To my mind, that evidence is irrelevant. The contract between the accused and the railway company for the reservation of a berth was reduced to writing in the form of the reservation ticket, and under that ticket the accused was entitled to one second class berth in the particular train, its position not being specified. The railway company carried out their part of the contract by allotting to the accused an upper berth in a second class carriage, as they were entitled to do. The accused, however, was not willing to occupy an upper berth, and clearly he was not bound to occupy the berth reserved for him, if any other berth was available. He proceeded to occupy a lower berth in the same compartment. Now, the railway company had entered into contracts for the reservation of the other three berths in this compartment, and they had carried out their part of the contracts with two other passengers by allotting to them the lower berths, and those passengers claimed their lower berths, whilst the accused and a friend, who was with him and who had also been allotted an upper berth, insisted on taking the lower berths and refused to vacate those berths when requested to do so by the railway officials. The result was that one of the other passengers reluctantly occupied an upper berth, and the other passenger, who refused to do so, was accommodated in some other compartment in the first class.
3. The question which arises is whether the accused committed an offence under Section 109, or Section 120, of the Indian Railways Act by refusing to vacate the berth reserved for another passenger. Section 109 provides that if a passenger, having entered a compartment which is reserved by a railway administration for the use of another passenger, or which already contains the maximum number of passengers exhibited therein or thereon under Section 63, refuses to leave it when required to do so by any railway servant, he shall be punished as mentioned. That section, in terms, deals with entering a compartment, and does not refer to occupying a seat reserved for another. It seems curious that there is no provision in the Act, and nothing, we are told, in the rules, expressly enabling a railway company to reserve either compartments or seats. No doubt, the fact that Section 109 imposes a penalty for entering a compartment, which is reserved, implies that the railway company has power to reserve a compartment, and I am quite prepared to accept the view expressed by Mr. Justice Marten, as he then was in Emperor v. Narayan Krishna I.L.R. (1922) 47 Bom. 465 that a railway company would have the right under its general power of managing its own concern to reserve seats for particular passengers. But the power to punish for breach of any of the regulations or arrangements made by a railway company forms no part of the general powers of such company, and must be conferred by statute or rules made thereunder either by express words or by necessary implication. It seems to be quite impossible to infer, from the fact that punishment may be inflicted upon a passenger, who enters a compartment which has been reserved, that the railway company has the right of imposing the same or any other penalty on a passenger, who occupies a seat which has been reserved. The railway company has power under Section 47 to make rules for the management of the railway, and under the second Sub-section they can impose a penalty for breach of the rules. They have not chosen to adopt that course, and until they do, it seems to me that they cannot impose any penalty upon a passenger who occupies a seat in an unreserved compartment, which seat the company have purported to reserve for some other passenger. In my view, therefore, the learned Magistrates were right in acquitting the accused of an offence under Section 109.
4. Section 120(c) makes it an offence if a person in any railway carriage willfully and without lawful excuse interferes with the comfort of any passenger. There is no evidence that the passengers, who hoped to occupy these lower berths, were any the less comfortable in the accommodation with which they were provided; but in any case, if the accused was not bound to respect the reservation which the railway company had made, he cannot be said, in exercising his right of ignoring that reservation, to have willfully and without lawful excuse interfered with the comfort of another passenger. The question under Section 120(c) really resolves itself into the same question as that which arises under Section 109, namely, whether the railway company can enforce reservation of a seat. If they cannot, the passenger, who takes advantage of his legal rights by ignoring such reservation, cannot be said thereby to have willfully interfered with the comfort of another passenger.
5. I think the accused was rightly acquitted, and the appeal must be dismissed.
1. I agree.