1. Appellant Shyamlal was convicted by the Honorary Railway Bench MagistrateTundla Bench Agra, exercising first class powers, for an offence punishableunder s. 121 of the Indian Railways Act and was sentenced to pay a fine of Rs.60/-, and in case of default in the payment of fine, to two months' rigorousimprisonment. His appeal to the II Additional Sessions Judge, Agra wasdismissed and his conviction and sentence were confirmed. He then filedRevision No. 971 of 1961 in the High Court of Judicature at Allahabad, but thesame was also rejected by Mr. Justice Brij Lal Gupta. Against the Judgment ofthe High Court he obtained special leave from this Court and has filed thisappeal.
2. The appellant Shyamlal was a pointsman at Achhnera Railway Station. Hebore grudge for some time against Hukam Chand Chaturvedi, P.W. 2, who was aGuard. The latter had taken in 1955 objection to a bed being carried on apassenger train by the appellant. Hukam Chand had also detected the appellanttaking Railway line sleepers in a compartment, a portion of which wasprotruding of the compartment, and made a report against the appellant, as aresult of which he was transferred. It is alleged that on November 30, 1959,Hukam Chand was on duty as a Guard on 20 Down train standing at the platform atAchhnera Railway Station at about 4-50 p.m. Suddenly the appellant came outfrom behind a compartment, armed with a scythe, and waiving it in his hand in amenacing way told Hukam Chand that he would cut his neck, and hurled abuses onhim thereby causing an obstruction in the discharge of his duty.
3. P.W. 2, Hukam Chand Chaturvedi, narrated the entire prosecution case andhis statement was corroborated in full by P.W. 3 R. L. Pandey, P.W. 4 ChandaRam, P.W. 8 Maharaj Dutt and P.W. 9 Nisar, who were all independent witnesses,and there is nothing at all to show that they are inimical to the appellant. Ona careful consideration of the evidence, the Additional Sessions Judge, Agracame to the conclusion that the prosecution have been successful inestablishing its case and the appellant came out from behind a compartment,abused Hukam Chand and waived the scythe towards him in a menacing way shoutingthat he would cut his neck with it.
4. Section 121 of the Indian Railways Act states :
'If a person wilfully obstructs or impedes anyrailway servant in the discharge of his duty, he shall be punished withimprisonment for a term which may extend to six months, or with fine which mayextend to five hundred rupees, or with both.'
5. Mr. D. S. Golani, Counsel for the appellant, contended that as theprosecution had failed to prove as to what duty was being actually performed byHukam Chand, the appellant cannot be convicted under s. 121 of the IndianRailways Act. In support of his contention the counsel relied on Radha Kishanv. Emperor A.I.R. (1923) Lah. 71, Mohinder Singh v. The State : 1SCR821 , Jawand Mal v. The Crown I.L.R. (1923) Lah. 467. In the matterof Baroda Kant Pramanik 1 C.W.N. 74 and Emperor v. Popatlal BhaichandShah I.L.R. (1929) Bom. 326. He also relied upon Rules 113, 114, 115 and137 of the Rules framed under the Indian Railways Act. The facts of all thesecases were different from those of the present case and they can be easilydistinguished. They have therefore no bearing on the decision of the presentcase.
6. From the facts stated above it is evident that the act alleged to havebeen done by the appellant was done by him, actuated by malice by reason of thefact that Hukam Chand had not spared him in the past for his lapses. It wouldfollow, therefore, that this act was wilful within the meaning of s. 121 of theIndian Railways Act. Further, Hukam Chand was on duty as a guard of train 20Down, which was then standing at the platform, and as a Guard he had todischarge multifarious duties at the time while the train was standing at theplatform, e.g. he had to look after the loading of the parcels in the luggagevan and to see that nothing untoward happened at the platform. Thus, it isclear, that during the time that the incident took place, viz., for about 15minutes, he was obstructed from discharging his duty by this deliberate andwilful act on the part of the appellant, as it is not only when the train is inmotion that a Guard is on duty, but also while the train is standing at theplatform. We are, therefore, of the opinion that the appellant has wilfullycreated obstruction in the discharge of the public duty by Hukam Chand as aGuard.
7. Rules 93 to 103 of the Rules framed under certain sections of the IndianRailways Act, 1890, deal with the attendance, discipline and equipment of StaffWorking Trains. In Rule 95, it is stated that the Guard shall be in charge ofthe train in all matters affecting stopping or movement of the train fortraffic purposes. It is, therefore, clear that Hukam Chand was on duty as aGuard right up to the time when he was to be the Guard of the train, and theact of the appellant amounted to wilfully creating obstruction in the dischargeof the public duty by Hukam Chand. The appellant was, therefore, rightlyconvicted under s. 121 of the Indian Railways Act.
8. The appeal is accordingly dismissed.
Raghubar Dayal, J.
9. I am of opinion that the appellant is not guilty of the offence under s.121 of the Indian Railways Act, but is guilty of the offence under s. 506I.P.C.
10. The finding of fact about the appellant's conduct at the time cannot bechallenged before us in this appeal by special leave. The only question todetermine is whether he, by his conduct, committed an offence under s. 121 ofthe Act which reads :
'If a person wilfully obstructs or impedes anyrailway servant in the discharge of his duty he shall be punished with finewhich may extend to one hundred rupees.'
11. To establish the offence it is necessary to prove that the appellantacted wilfully and that his wilful action obstructed or impeded Hukam Chand inthe discharge of his duty. The expression 'in the discharge of his duty' is notequivalent to the expression 'when on duty.' The obstruction or impediment,caused to the railway servant in the discharge of his duty, should result in anobstruction or impediment in the execution of the duty he was performing at thetime. There is nothing on the record to indicate what Hukam Chand was doing atthe time and, consequently, there is nothing on the record to show that what hewas doing at the time amounted to his discharging some duty as a guard. Thefact that he was on the platform about 40 minutes before the departure of thetrain does not necessarily lead to the inference that he must have beendischarging some duty which he had to perform as a guard of that train.
12. In this connection the Magistrate stated :
'....... there is not the least doubt that hisconduct amounted to interference with the duties of the guard who was ready togo with the train and much of his time was wasted in writing complaints.'
13. The observation is based not only any findings, both with regard to theduties which were interfered with and with regard to the time taken in writingcomplaints. The report which Hukam Chand submitted to the station master is abrief one. It does not even give the time of the incident. It could not havetaken long. The learned Sessions Judge said in his judgment :
'So far as the question of obstruction is concernedit may be noted that Shri Hukam Chand was on duty as a Guard on train 20 Down,which was then standing at the platform. As a guard he had to dischargemultifarious duties at a time while the train was standing at the platforme.g., he had to look after the loading of the parcels in the luggage van and tosee that nothing untoward happened at the platform. Thus during the time thatthe incident took place viz., for about 15 minutes, he was obstructed fromdischarging his duty by this deliberate and wilful and wilful act on the partof the appellant.'
14. Again, there is no reference to any particular duty which Hukam Chandwas performing at the time. There was, according to Hukam Chand's deposition, aluggage guard with the train. Ram Lakhan Pandey was the luggage guard. It wouldbe his duty to look to the loading of the luggage and not of Hukam Chand, theguard of the train. It is too vague a statement to say that the guard had tosee that nothing untoward happened on the platform. Any way, the behavior ofShyam Lal at the station in no way affected Hukam Chand's not discharging sucha duty. He could go to the Senior Accounts Officer to make complaint to him andso he could have given effective orders or instructions in case anythinghappened at the platform.
15. Assuming, however, that Hukam Chand was discharging duty at the time,the question is whether what the accused actually did amounted to wilfullyobstructing him in the discharge of that duty. The appellant threatened HukamChand with a scythe and shouted abuses at him. This conduct was not intended tocause obstruction to Hukam Chand in the discharge of his duty. The sectioncontemplates the wilfulness of the alleged culprit to be with respect to theact of obstruction and not with respect to any other act. Ordinarily, the actsdone would be intentional and therefore wilful. The intention to do a certainact, in no way directed towards the obstruction of a railway servant, will notbe an act of wilful obstruction of the railway servant. The appellant's conductwas directed against Hukam Chand personally and not against his performing anyofficial act, in connection with the discharge of his duties. He was notthreatened in order to prevent him from carrying out his duties and thereforethe appellant cannot be said to have wilfully obstructed Hukam Chand in thedischarge of his duty. Hukam Chand's conduct on being threatened in irrelevantfor considering the nature of the appellant's wilful i.e., intentional act.What Hukam Chand did by way of making complaints to the Senior Accounts Officeror to the Station Master - and which kept him away for a short time fromdischarging his normal duties as a guard at the station - cannot be said to bewhat was intended by the appellant.
16. I may now refer to some cases whose ration decidendi has a bearing onthe present case.
17. In Empress v. Badam Singh (1883) 3 All. W.N. 197, the execution of asale deed by the judgment debtor was held not to amount to an obstruction ofthe sale in execution of the decree since the sale was not obstructed and didactually take place.
18. In the present case, too, the train did of in time and there is noreason to suppose that Hukam Chand could not perform any of his necessaryduties preliminary to the departure of the train.
19. In Kishori Lal v. Emperor : AIR1925All409 , the patwari refusedto allow the Kanungo to go through his books and check them. He, in fact, wentaway with his books. Such a conduct was not held to be an offence under s. 186I.P.C. which makes voluntary obstruction to a public servant in the dischargeof his public functions an offence. In that case, the Kanungo could not performhis duty on account of the conduct of the patwari and even then the patwari'sconduct was held not to amount to a voluntary obstruction of the kanungo in thedischarge of his duties. The rationale of the decision seems to be that thekanungo intended to perform his duties but was frustrated and that it wastherefore not a case of any obstruction in the discharge of his duties.
20. In Bastable v. Little (1907) 1 K.B. 59, the accused, who had warnedapproaching cars about constables having measured certain distances on the roadand being on the watch in order to ascertain the speed at which cars passedover measured distances with a view to discovering whether they were proceedingat an illegal rate of speed, was held to be not guilty of the offence ofobstructing the constables when in the execution of their duty, within themeaning of s. 2 of the Prevention of Crimes Amendment Act, 1885. LordAlverstone, C.J., said at p. 62 :
'I think that the section points to something donein regard to the duty which the constable is performing...'
21. Ridley J., said :
'I think that in order to constitute an offenceunder the section there must be some interference with the constable himself byphysical force or threats. He must be either physically obstructed in doing hisduty or at least threats must be used to prevent him from doing it.'
22. In Betts v. Stevens (1910) 1 K.B. 1, the accused who had done whatthe accused in Bestable's Case (1907) 1 K.B. 59, had done, was held to beguilty of the offence under s. 2 of the Prevention of Crimes Amendment Act,185, as the warning had been given to cars which were actually proceeding at anexcessive speed at the time the warning was given and who were expected to coverthe measured distance at some excessive speed. Lord Alverstone, C.J., said atp. 6 :
'In my opinion a man who, finding that a car isbreaking the law, warns the driver, so that the speed of the car is slackened,and the police are thereby prevented from ascertaining the speed and so areprevented from obtaining the only evidence upon which, according to ourexperience, Courts will act with confidence, is obstructing the police in theexecution of their duty. This is exactly the kind of case that I had in my mindwhen the case of Bastable v. Little 1907 1 K.B. 59 was before us, and whichled me, after Ridley J., had, as I thought, put too narrow a construction onthe word 'obstruct,' to say that I could not agree in the view that physicalobstruction or threats were the only kinds of acts that would come within thesection. However, nothing that I now say must be construed to mean that themere giving of a warning to a passing car that the driver must look out asthere is a police trap ahead will amount to an obstruction of the police in theexecution of their duty in the absence of evidence that the car was going at anillegal speed at the time of the warning given; but where it is found, as inthis case, that the cars were already breaking the law at the time of thewarning, and that the act of person giving the warning prevented the policefrom getting the only evidence which would be required for the purposes of thecase, there I think the warning does amount to obstruction.'
23. Darling, J., said at p. 8 :
'The appellant in effect advised the drivers ofthose cars which were proceeding at an unlawful speed not to go on committingan unlawful act. If that advice were given simply with a view to prevent thecontinuance of the unlawful act and procure observance of the law. I should saythat there would not be an obstruction of the police in the execution of theirduty of collecting evidence beyond the point at which the appellant intervened.The gist of the offence to my mind lies in the intention with which the thingis done.'
24. It is not necessary for me to say how far the view expressed in thiscase about the commission of the offence is correct. I have made reference tothese observations to indicate that a necessary element of a person's wilfullyobstructing a public servant in the discharge of his duties is that person'sactual intention in doing the act which is alleged to constitute the offenceand the intention must be to prevent the public servant from discharging hisduty. The result of the act should be that the public servant is actuallyobstructed in the discharge of his duty, i.e., the public servant is not ableto perform his duty. I am therefore of opinion that an offence under s. 121 ofthe Act is committed only when an accused commits an act with the intention ofpreventing the public servant from discharging hid duty and the act doesprevent him from doing so.
25. It has been further urged for the appellant that threats of violencecannot amount to obstructing Hukam Chand in the discharge of his duty. Theappellant merely uttered threats and therefore committed no offence under s.121 of the Act. I am of opinion that threats of violence can amount toobstructing a public servant in the discharge of his duty, if the attitude ofthe person holding out the threats in indicates that violence would be used ifthe public servant persisted in performing his duty, and approve of what wassaid by Costello, J., in Nafar Sardar v. Emperor I.L.R. (1932) Cal. 149, and was approved in Emperor v. Tohfa : AIR1933All759 , whosefacts were similar.
26. In Nafar Sardar v. Emperor I.L.R. (1932) Cal. 149, the naibnazir deputed to execute the decree against the accused by attachment of theirmoveable property, proceeded to enter their house in order to attach themoveables. A number of persons collected and some of them, including theaccused, declared that they would kill or break the head of anybody coming intotheir house to attach the moveables. Due to such attitude, no attachment couldbe effected. In holding the accused guilty of the offence under s. 186 I.P.C.Costello, J., said :
'No doubt, in some instances, mere threats may notof themselves be sufficient. The real question is whether the action orattitude on the part of the persons alleged to have obstructed a public servantin the performance of his functions was of such a nature as to obstruct, thatis to say, to stand in the way so as to prevent him in carrying out the dutieswhich he had to discharge. Where it is solely a matter of threats, they must beof as so to affect the public servant concerned as to cause him to abstain fromproceeding with the execution of his duties. It seems to me obvious thatthreats of violence, made in such a way as to prevent a public servant fromcarrying out his duty, would easily amount to an obstruction of the publicservant, particularly if such threats are coupled with an aggressive ormenacing attitude on the part of the persons uttering the threats and stillmore so if they are accompanied by the flourishing or even the exhibition ofsome kind of weapon capable of inflicting physical injury. Threats made by aperson holding an offensive weapon in his hand must be taken to be just as muchan obstruction as that caused by a person actually blocking a gateway orhandling a public servant in a manner calculated to prevent him from executinghis duty.'
27. In view of the facts of the present case, the appellant's conduct ingiving threats to Hukam Chand, the guard, at the station does not amount to anoffence under s. 121 of the Act but makes out an offence under s. 506 I.P.C. Iwould therefore alter the conviction of the appellant for an offence under s.121 of the Act to one under s. 506 I.P.C., and maintain the sentence of Rs. 60/-fine in default of payment of which he would undergo rigorous imprisonment fortwo months.
28. Appeal dismissed.