1. The accused has been convicted in this case under Section 18 of the Indian Railways Acton the ground that he was a passenger at the time when he remained on the footboard of a railway carriage, even though warned to leave it, while the train was in motion.
2. On a careful reading of Sections 68, 69, 113, 117,118, 120 and 122, I have come to the conclusion that the word ' passenger ' in Section 118 is used in a restricted sense of denoting a person who, without the permission of a railway servant, enters any carriage of a railway for the purpose of travelling therein as a passenger. On the facts found, I am unable to say that the accused in this case entered the carriage for any such purpose and that he was a passenger when he was on the foot-board. This being a penal section, I think, it should be construed strictly. It may be that persons other than passengers ought to be prohibited from resorting to this dangerous practice of being on the footboard while the train is in motion ; and I think it is open to a railway administration to secure that result by an appropriate rule under Section 47. It is not suggested in the present case that the railway administration concerned has framed any rule which would make it penal for the present accused to do what he is found to have done.
3. I would, therefore, set aside the conviction and sentence and direct the fine, if paid, to be refunded.
4. I concur. I would only add that not only did the accused not enter the carriage for the purpose of travelling, but that he had no intention of doing so. I think therefore that he was not a passenger within the ordinary meaning of that word, and I cannot see that he was a passenger within any special meaning indicated by the Railway Act.