M.C. Desai, J.
1. The main question that is raised in this reference by the applicant Vishwanath Pande, who is an assistant station master, is whether the word 'person' used in the beginning of Section 120 of the Railways Act includes a railway servant. The Magistrate answered the question in the affirmative and convicted the applicant under Section 120, but the Additional Sessions Judge considering that it should have been answered in the negative has referred the case to this Court for quashing the applicant's conviction.
2. Section 120 reads as follows : 120. 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.'
It may be conceded that the word 'person' used in the beginning of the section is general enough to cover any human being, whether he is a railway servant or not. It must also be conceded that the acts which are made punishable are acts which may be done by a railway servant as well as by a person other than a railway servant. Consequently there is nothing in the nature of the offence to suggest that it can be committed only by a person other than a railway servant. There are cogent reasons, however, for holding that the legislature did not intend a railway servant to be punished under Section 120.
3. Firstly the Act itself makes a distinction between 'offences by railway servants' and 'other offences' by including Sections 99 to 105 under the former heading and Sections 106 to 130 under the latter heading. The inclusion of Section 120 among 'other offences' is not quite consistent with the offence made punishable thereunder being an offence liable to be committed by a railway servant.
4. Secondly Section 100 punishes a railway servant in a state of intoxication (while on duty); there would be some duplication if he were also made liable under Section 120 (a). The argument based on duplication is not met by the reply that Section 100 punishes a railway servant for being in a state of intoxication only if he is on duty; if Section 120 applies to a railway servant also it will apply to him whether he is on duty or not and as regards a railway servant on duty duplication will result. Section 101 imposes a penalty on any railway servant, who disobeys any general rule made by or under the Act or any general rule which arises out of the terms of his employment or any rash or negligent act or omission; if a railway servant were punishable under Section 120 for certain acts, he would be liable to be punished under both Sections 101 and 120. Similarly an act done by a railway servant would bring him within the scope of both Section 102 and Section 120. It is doubtful if the legislature after providing for offences committed by railway servants enacted Section 120 to cover offences by them also.
5. The additional punishment provided in Section 120, viz., that of forfeiture of any fare or of any pass or ticket, cannot be imposed upon a railway servant (if he is not a passenger). The forfeiture is mandatory and not discretionary. If a person is convicted under Section 120 he must be punished with fine in addition to the forfeiture; the obligation imposed by the use of the word 'shall' covers the forfeiture also. It is obvious, therefore, that the word 'person' was not intended to include a railway servant because there would arise no question of forfeiture of any fare paid by him or of any pass or ticket obtained or purchased by him. A railway servant may obtain or purchase a pass or ticket, but that would be only when he is a passenger.
6. A person convicted under Section 120 is also made liable to be removed from the railway by any railway servant. This liability is discretionary and is not required to follow every conviction. If a railway servant is convicted he may not be removed, whereas a person other than a railway servant may on conviction be removed. But the veal question is whether a railway servant is liable to be removed or not and whether such a liability could have been intended to be imposed by the legislature.
It is immaterial that in practice he may not be removed. I do not think that the legislature could have intended a station master or an assistant station master on duty to be liable to be removed, on account of his being in a state of intoxication or committing any nuisance or using obscene or abusive language or extinguishing a lamp, by any railway servant, such as a porter. Further the legislature could not have intended a signaller or a guard or a driver to be removed from the railway on account of his committing a nuisance or using obscene or abusive language or extinguishing a lamp. If such removals were permitted chaos would result at the railway station and the running of the railway trains would come to a standstill.
It may be better to remove a signaller or a station master or a driver who is in a state of intoxication from the railway than to let him remain on duty and greatly endanger public safety, but the same cannot be said of a station master, signaller or driver, who simply commits a nuisance or uses obscene or abusive language or extinguishes any lamp. Removal of such a railway servant from the railway is not to be preferred to the stoppage of the running of trains. It is evident that the person who is liable to be removed from the railway by any railway servant is a person other than a railway servant. Since the liability to be removed is imposed upon every person who is convicted under Section 120, it follows that a railway servant is not liable to be convicted under that section. The use of the words 'by any railway servant' is inconsistent with the liability of a railway servant to be removed; it is incorrect to speak of a railway servant being removed by a railway servant.
7. Lastly, an offence under Section 120 committed by a railway servant should be treated as a more serious offence than one committed by a person other than a railway servant. The maximum punishment for the offence is, however, a fine of Rs. 50/- this punishment is inadequate for an offence committed by a railway servant.
(8) I respectfully agree with Beaumont C. J. when he held in Gurnath Shankar v. Emperor : AIR1937Bom357 that Section 120 does not apply to a railway servant, and disagree with the contrary view taken in Cuffly v. Muhamadali Muhammad Ibrahim, 44 Ind Cas 329 : (AIR 1919 Mad 971 (2)), Appal Swamy v. Emperor, AIR 1934 Pat 52(1) and Gajadhar Singh v. Emperor, AIR 1946 Nag 200. In the Madras case Abdur Rahim and Napier JJ. emphasized that the word used in Section 120 is 'person' and not 'passenger'. The offence of Section 120 may be committed by a person other than a railway servant, although he is not a passenger.
It can be committed by a trespasser or by a person who enters the railway with a pass but without intending to travel by the train or in order to take delivery of a parcel or to purchase a ticket. In the Patna case Saunders J. simply relied upon the Madras case. In the Nagpur case Bose J. disagreed from Beaumont C. J. and observed that the word 'person' used in the beginning of Section 101 includes a railway servant and so the word used in Section 120 must include a railway servant, that Section 101 creates a more serious offence than that of Section 120 and that the word 'person' is used in Section 120 without any restriction or qualification. I have dealt with these arguments earlier.
9. I cannot subscribe to the view put forth in Hari Rao's Indian Railways Act to the effect that whether the word 'person' used in Section 120 includes a railway servant or not depends upon the facts of each case. It is a question of law whether the word includes a railway servant or not and not a question of fact depending upon the circumstances of each case. There is no warrant for saying that if a station master abuses a porter he must be held to be not within the meaning of the word 'person' and that if he abuses another person, he must be. It is anomalous to say that whether a railway servant is within the meaning of the word 'person' or not depends upon who the victim of the offence is.
10. I hold that the applicant, who is a railwayservant, cannot be convicted under Section 120. I accept the reference and set aside the applicant's conviction and sentence and acquit him. The fine, if realised, shall be refunded.