G.K. Misra, J.
1. The petitioner has been convicted Under Section 120 of the Indian Railways Act and sentenced to pay a fine of Rs. 25/-, in default to undergo simple imprisonment for a period of five days. Prosecution case is that on 5-1-1965 the petitioner was in a state of intoxication, abused and assaulted P. W. 2. (Welfare Inspector) at the Jharsuguda Railway Station.
The petitioner in his statement Under Section 342, Cr. P. C. states that P. W. 2 had taken a loan of Rs. 10/- from him. On the date of occurrence he met him on the railway platform and demanded repayment This led to a quarrel between them.
2. The learned Magistrate accepted the prosecution version and held that the petitioner was under the influence of liquor. While doing so he has overlooked many important factors in support of the prosecution case
3. Mr. Misra contends that on the finding that the petitioner was under the influence of liquor, the conviction cannot be sustained This necessitates examination of the scope of Section 120 of the Indian Railways Act.
4. The section, so far as is relevant, runs thus-
'If a person in any railway carriage or upon any part of railway-
(a) is in a state of intoxication
(b) x x x x x(c) x x x x x he shall be punished with a fine whichmay extend to fifty rupees x x '
The word 'person' includes an employee of the railway. It is only necessary to ascertain the meaning of the expression 'state of intoxication' The leading decision on the point is Keith v. Bell, (1944) S.L.T. 31. In that case Lord Cooper observed thus-
'The phrase also falls to be read in contradistinction to such terms as 'drunk' or 'drunken' or 'under the influence of drink', which are used elsewhere in this and related statutes in describing various stages of the condition of inebriation. My view is that the words ''state of intoxication' prima facie suggest a condition graver and more extreme than that which is suggested by such words as 'drunk' or 'under the influence of drink' and it is desirable that that distinction, should be kept clearly in view for the purposes of prosecution based upon an alleged breach of a condition in the certificate.'
The meaning of the expression was undoubtedly examined with reference toSchedule VI to licensing (Scotland) Act, 1903. The very expression was construed similarly under the Prohibition Act both in Keralaand in Madras (see 1967 Mad LJ (Cri) 50 (Ker), State of Kerala v. Raman Nair, and AIR 1957 Mad. 546, In re, Palani Goundan). The expression would carry the same meaning under Section 112 of the Indian Railways Act.
5. Immediately after the occurrence, the petitioner was examined by the doctor (p. w. 1.). He found him under the influence of liquor and was unable to take care of himself. He had staggering gait and incoherent talk. P. W. 2 was abused and assaulted on the platform, No. suggestion was made to P. W. 2 that he had taken a loan from the petitioner and the abuse was the outcome of petitioner's demand for repayment. P. W. 3, an independent witness, corroborates P. W, 2 as to how the petitioner held the collar of the coat of p.w. 2. The statement of the petitioner Under Section 342, Cr. P.C. that p.w. 2 took a loan of Rs. 10/- from him is an afterthought. It was not suggested to p.w. 2 nor any evidence was led In support of the story. It is accordingly discarded.
6. On the aforesaid evidence, the following features are established by the prosecution:
(i) The petitioner had taken liquor.
(ii) He was making incoherent speeches.
(iii) He had staggering gait.
(iv) He was unable to take care of himself.
The irresistible inference to be drawn from the aforesaid features is that as a result of his consumption of intoxicating liquor, the petitioner's physical and mental faculties were appreciably and materially impaired in the conduct of the ordinary affairs or acts of daily life. That clearly brings him within the mischief of the expression 'state of intoxication' as propounded by Lord Cooper in the aforesaid decision.
The learned Magistrate was wrong in his conclusion that the petitioner was merely under the influence of liquor. A person may be under the influence of liquor but yet not in a state of intoxication. The conviction is sustained for reasons altogether different from those commending to the learned Magistrate.
7. One more point to be noticed is that in his statement Under Section 342, Cr. P. C. the Magistrate put the following question only
Qes. -- There is allegation against you that on 5-1-63 you quarrelled on the platform of Jharsuguda railway station and created disturbance of peace. What have you got to say?
The question is highly unsatisfactory. The object of questioning Under Section 342, Cr. P. C. is to give an opportunity to the accused to explain the circumstances appearing against him in evidence. The main element of the offence charged is whether the petitioner was in a state of intoxication The question put Under Section 342. Cr. P. C. does not at all touch that point. Thus the examination Under Section 342,Cr. P. C. was perfunctory and unsatisfactory.
8. The further question is that whether the petitioner would be entitled to acquittal on this ground alone. A conviction is not vitiated unless the failure to properly examine the accused Under Section 342, Cr. P. C. results in prejudice. That there has been no prejudice is manifest from the fact that this ground was not taken in the revision application. The learned advocate for the petitioner did not mention therein the form of the question that should have been put to the petitioner and the answer thereto to be consistent with his innocence.
That apart, on examination of the facts of the case, it is clear that no prejudice had been caused. The case is a simple one. All the three witnesses supporting the prosecution version stated against the petitioner. They were fully cross-examined. Thus the petitioner knew the accusation against him. He was neither misled nor prejudiced. Mr. Misra was given opportunity to furnish any explanation which would be consistent with the innocence of the petitioner. He could not offer any excepting giving denial.
I am, therefore, of opinion that even though the question put Under Section 342, Cr. P. C, was wholly unsatisfactory, it had not occasioned any prejudice to the petitioner, The conviction is well founded and is sustained. In this regard a reference may be made to the observations of the Supreme Court in (1955) 2 S.C. R. 1057 : (AIR 1956 SC 241) K.C. Mathew v. State of Trav-Co. Their Lordships observed that when an accused person was not properly questioned Under Section 342 so as to enable him to explain the circumstances appearing in the evidence against him, he was entitled to ask the appellate court, which is the ultimate court of fact, to place him in the same position he would have been in if he had been properly questioned and to take the explanation he would have given, if he had been asked, into consideration when weighing the evidence in just the same way at the Court would have done if the explanation had been there all along. But he cannot ask to be placed in a better position than he would have been in if the Court had done its duty from the start. Therefore, when complaining of prejudice he must set out the questions he should have been asked and indicate the answers he would have given. Mr Misra was allowed to argue the revision as an appeal and he was unable to satisfy me that any prejudice was caused.
9. In the result, the revision fails and is dismissed.