1. This is an application in revision by Mr. Asharfi Lal, Pleader of Agra, in respect of his conviction by a Magistrate of an offence under Section 108, Railways Act 9 of 1890. The applicant was sentenced to pay a fine of Rs. 10. He applied in revision to the Sessions Judge of Farrukhabad, but his application was rejected on the ground that no question of law was involved, the Magistrate's decision that the applicant had pulled the communication record in a railway carriage without reasonable and sufficient cause being merely a finding of fact.
2. The facts of the case have to be gathered from the statement of the applicant. This statement was not challenged by any cross-examination or rebutted by any evidence. On the face of it the statement appears to be a straightforward and honest exposition of the facts that occurred. They were briefly as follows: The applicant arrived with a companion at Marehra railway station between 9 and 10 p.m. in the evening. The station is a small one on the line between Kasganj and Agra. The train was due to arrive at 2 a.m. It was an hour late. No coolies were available. It appears that on hearing the train was late they went off to bed. The applicant and his companion applied to the station master for assistance to take their baggage and be lent them a khalasi to serve as a coolie. The position of the second class compartment on the train was apparently not uniform. On this night it arrived at one end of the train and drew up beyond the platform. The train stopped for a very brief time much less than the scheduled time allowed for the stop. The khalasi needed to journey twice from the place where the baggage was deposited in order to bring all the baggage of the applicant. The train moved off before he had brought the bedding of the applicant and it attained too great a speed for him to reach the compartment with his second load. This bundle of bedding contained a sum of no less than Rs. 800. The applicant, as soon as he had looked round the carriage and found his bedding missing, palled the communication cord. Apparently the train had gone about 500 yards.
3. The Magistrate who convicted found that the bundle was left behind at the station owing to the improper action of the railway servants in not allowing sufficient time to the applicant for boarding the train with his baggage. He found also that if the applicant had not stopped the train he would have stood a great risk of not recovering his Rs. 800. He considered, however, that the-applicant had not reasonable and sufficient cause for pulling the communication cord for the following reason and for the following reason only. The applicant must have known that railway line had an evil reputation for the occurrence of thefts on the line, and that the stoppage of the train between stations would cause a risk to the other passengers.
4. The risk of danger, of loss and of discomfort to the other passengers on a train appears to me to be one element that has to be considered for the purpose of deciding whether there was reasonable and sufficient cause. But this element cannot be considered independently. It must be considered in relation to the risk arising from the circumstances to the person pulling the cord. In other words, if the risk to the passenger pilling the cord is incommensurate with the risk and discomfort, etc., to the other passengers, he cannot be said to have had just and reasonable cause, In the present case there was obviously small risk to the other passengers. The train was pulled up quite close to the station Even when the train halted at the station this particular carriage was beyond the platform. The platform was so denuded of coolie and officials that for, practical,:purpose it was as deserted as, the spot at which the train was stopped on the other hand the risk in cured by applicant was very considerable. The khalasi should was course have handed over the bedding-to the station master to look up, but the applicant was by no means sure that he would do so. The station master apparently had, gone to bed. If this bundle had been, left, lying about or had been handed by the khalasi, to another, railway servant, abstraction might have occurred and it would have been difficult to fasten, the guilt on anyone. Even if responsibility could have been forced it is unlikely that the applicant would have recovered his money. Therefore applying the proper principle, namely the principle of the comparative risk or danger to the person pulling the cord and the comparative risk or danger to other persons on the train the action of the applicant would appear not unreasonable. The principle applied by the Magistrate in other words gives a different result to that arrived at by the Magistrate.
5. Consideration of the relative risk to the passenger pulling the cord and to the other passengers is, however only one element for consideration in a case of this nature. Another element of.great importance is whether the necessity or occasion for pulling the cord has arisen from the fault of the railway administration. Where the necessity or occasion is in part due to the remissness of carelessness of the person pulling the cord, he could seldom be held to have justification for pulling it. In the present case it appears to me that on the evidence the necessity for pulling the cord was entirely occasioned by the failure of the station officials to give the, applicant an adequate opportunity for boarding; the railway is bound for the supply coolies. But if it is not it must allow a longer stay at a station for the passengers to get into the train with their baggage. In this case it appears that the train stopped much shorter than its scheduled time.
6. There is a third element for consideration which I would mention separately, although it is closely connected with the first element mentioned above, It is the importance of the line and the train. It is sufficient to say that it is a much more serious matter to stop a mail train which, if it does not keep' its scheduled time, will-dislocate important arrangements, than it is to stop a slow train. We may infer, from the fact that this train was an hour late that the observance of its scheduled time was not considered of great moment by the railway authorities.
7. The considerations, therefore, for holding that the pulling of the cord by the applicant was not without reasonable and sufficient cause appear to me in this particular case to be somewhat weighty. It would, however, be entirely Wrong to infer from this decision that, a passenger can stop a train after leaving' the station because he has left some of his baggage behind. Each case must be gauged on its particular merit. In this case the loss of the baggage appears to be due entirely to bad arrangements and improper action of the station people. The article left behind was one containing a very considerable sum of money and the evidence that it did contain this sum of money was beyond suspicion. The train was so late that, the short delay incurred was of small moment indeed the train should have stopped,for a longer time at the station the train was a slow one and its further delay Was not likely to seriously upset a connected scheme of timings. Except all these circumstances are proved in a subsequent case this decision can have no application.
8. The Sessions Judge was right in suggesting that a court of criminal revision will not generally interfere in respect of what would be a finding. Of fact if the case were tried by a jury. But Section 435; Criminal P.C., does permit interference on the ground pot merely of the, illegality but also on the ground of the impropriety of a finding. In this case the Magistrate applied as conclusive a consideration which should only have been applied along with other considerations Moreover the consideration that he applied was not one properly applicable to the particular facts discovered by the evidence. For this reason I am disposed, to interfere in revision. But this is no, precedent for interference in a similar case with a finding of fact that is not open to criticizm on the grounds stated.
9. In conclusion I allow this application in revision and set aside the conviction of the applicant. The fine of Rs. 10 if paid, will be returned.