Harbans Singh, J.
1. Dalip Singh and Hazara Singh, who were working as Sainiks of the Railway Protection Force at Jullundur, were proceeded against under Section 120 of the Indian Railways Act for being found in a state of intoxication and quarrelling and abusing each other and creating nuisance at Hmira Railway platform, on 20th October, 1961, at about 8-30 p.m. Half a bottle of liquor was recovered from the possession of Hazara Singh petitioner. On medical examination, the doctor found that he was smelling of alcohol. The petitioners before the learned trial Magistrate ultimately stated that they had committed the offences alleged. This was accepted as a plea of guilty and both of them were convicted under Section 120 of the Railways Act and sentenced to pay a fine of Rs. 5/- each or to undergo seven days' rigorous imprisonment in default of the payment of fine. A revision filed by Hazara Singh was forwarded by the learned Sessions Judge, Kapurthala, recommending that their conviction and sentence be sot aside on the ground that Section 120 was not applicable to the railway servants acting as such. The matter went before a learned Singh Judge, who, finding that there was a conflict of authority on the point, referred the case to a larger Bench.
2. Section 120 of the Railways Act, no doubt, i9 couched in very general terms and is as follows:
'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 fara 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.'
In A.F. Cuffly v. Muhammadali Mahomed Ibrahim, AIR 1919 Mad 971(2) and Appal Swamy v. Emperor, AIR 1934 Pat 52(1), it was held that the word 'person' occurring in Section 120 was wide enough to include a railway official. The other view, which was taken by the Judicial Commissioner of Sind in Mulchand v. Emperor, AIR 1929 Sind 249, by the Bombay High Court in Gurunath Shankar v. Emperor, AIR 1937 Bom 357 and by the Allahabad High Court in Vishwanath Pandey v. State, AIR 1960 All 721, was that Sees. 99 to 105 specifically relate to 'offences by railway servants' while Sections 106 to 130 relate to other offences, apparently dealing with offences of persons other than the railway servants. It was further noted that under Section 100, if a railway servant was found in a state of intoxication, while on duty, he would tender himself liable to punishment which may extend to fifty rupees, and where the improper performance of the duty would be likely to endanger the safety of any person travelling or being upon a railway, he becomes liable to imprisonment which may extend to one year or with fine or with both. From this it was clear that drunkenness in case of a railway servant was treated to be a more serious offence than it was If found in case of any other person in any railway carriage or upon any part of a railway. It was, consequently, held that Section 120 did not apply to acts done by the railway servants acting as such. In Gurunath Shankar's case, AIR 1937 Bom 357, Beaumount C. J. (who later became a member of the Judicial Committee of the Privy Council), delivering the Judgment of the Division Bench, after quoting Section 120, observed as follows:
'The whole of the last paragraph suggests inat the section was not intended to cover an act done by a railway servant in the course of his official duties. It can hardly be supposed that the Legislature intended that if a Station Master uses abusive language to some porter, who has committed some fault, the Station Master can be removed from the railway by another porter.'
After noticing that Section 100 covers the same ground as Section 120(a) and that Section 101 deals with offences by a railway servant endangering public safety, whole Section 129 deals with an act by any person endangering public safety, the learned Chief Justice observed --
'In my opinion taking the sections of the Act as a whole, there cm be no doubt that Section 120 is not intended to include any act done by a railway servant acting as such. The offences specified in Section 120, if committed by railway servants, can well be dean with by departmental action.'
The view taken by the Court of Judicial Commissioner in Mulchand's case, AIR 1929 Sind 249(1) was approved, and the opposite view taken by the Madras High Court in A. F. Cuffly's case, AIR 1919 Mad 971(2) and by the Patna High Court in Appal Swamy's case, AIR 1934 Pat 52(1) was dissented from. This Division Bench judgment was referred to by the Madras High Court in the case reported as In re, Venkataswami, AIR 1950 Mad 406. It is a short Judgment wherein P. Aiyar J. observed that Arising out of SLP (C) No. railway official hurling down a bundle of bangles of a fellow passenger and breaking them, will render him liable tinder Section 120 of the Railways Act because such an ad is not an act done or doable by a railway servant as such and that Gurunath Shankar's case, AIR 1937 Bom 357 would not apply. Oesai J. (now Chief Justice) of the Allahabad High Court in Vishwanath Pandey's case, AIR 1960 All 721 preferred the view taken by the Bombay High Court and did not follow the view of the Madras and Patna High Courts in the cases noticed above and 1hat of the Nagpur High Court in Gajadhar Singh v. Emperor, AIR 1946 Nag 200. In Gajadhar Singh's ease, AIR 1946 Nag 200, Bose J. (as he then was) did not agree with the Bombay view and observed that the word 'person' in Section 120 includes a railway servant whether on or off duty, There can be no manner of doubt that if a railway servant is off duty and during that period, in nis capacity as a private individual, he commits an act which falls under Section 120 of the Railways Act, he would certainty be liable and this appears to be the case in Ven Kataswami's case AIR 1950 Mad 406. However, I am inclined to prefer the view taken by Beaumont C.J. in Gurunath Shankar's case, AIR 1937 Bom 357 following the Sind Judicial Commissioner's view in Mulchand's case, AIR 1929 Sind 249(1) followed by Allahabad High Court in Vishwanath Pandey's case, AIR 1960 All 721 and would hold that Section 120 of the Railways Act is not applicable to the acts of a railway servant while he is on duty and is acting as such.
3. This was the only point in the reference. It is, therefore, not necessary to send the case back to the learned Single Judge. 1 would, consequently, accept the revision, quash the proceedings and set aside the convictions and sentences of the petitioner and Dalip Singh. Tine, if paid, shall be refunded.
D. Falshaw, C.J.
4. I agree.