1. The Magistrate in this case found that the accused, who was a Railway Guard, made two Mahomedan gosha ladies who were travelling in a first class compartment in which there were two European ladies get out of that compartment and get into a coupe compartment at Arkonam. He also found that the ladies did not consent to changing their compartment. It would appear that the two European passengers or at least one of them objected to the gosha ladies travelling in the same compartment and that was the reason why the guard interfered and made the gosha ladies go into an. other compartment against their will. This he had no right to do, as the gosha ladies had agreed to pay the excess fare which was chargeable for the difference between the second class ticket which they possessed and the first class fare. The Station Master and the guard himself had given them this accommodation in consideration of the excess fare which they had promised to pay and which was actually paid at Arkonam. The action of the guard was not justified by the law and it necessarily interfered with the comfort of these gosha ladies who were entitled, upon the facts found, to travel in the compartment in which they were.
2. The learned Sessions Judge has gone elaborately into the evidence and has come to the conclusion that the prosecution had exaggerated the facts. But he was not entitled to reconsider the case on the evidence and to come to a different finding from that arrived at by the Magistrate I here was no appeal to him and he was acting in exercise of the powers of revision He also holds that the action of the accused did not amount to an offence under Section 120, Indian Railways Act, on the ground that the section does not apply to a Railway guard or other Railway employees But the section itself is in general terms.' It says: If a person in any Railway carriage or upon any part of a Railway...wilfully and without lawful excuse interferes with the comfort of any passenger or extinguishes any lamp, he shall be punished, etc. 'It also covers the case of any such person being in a state of intoxication or committing any nuisance or act of indecency or using obscene or abusive language There is no apparent reason why if a Railway employee or Railway guard commits any of these acts, he should be exempted from the punishment provided by the section.
3. The word used in Section 120 is 'person' and there is nothing in the section to indicate that a Railway guard or other Railway officials are intended to be excluded from the purview of the section. It is perfectly true that there are special classes of offences dealt with in the Act which may be committed by Railway servants. But that does not at all lead to the inference that the other offences dealt with in the Act may not be committed by Railway servants, where the offence in defined in general terms. It may also be pointed out that there are - a number of sections which deal with offences by passengers travelling in a Railway train. But in all these sections, the word 'passenger' is specifically used. Contrary to that, the word used in Section 120 is 'person', and not 'passenger'. We think that Section 120 applies to an act mentioned in that section, if committed by a Railway servant. The conviction of the accused was, therefore, justified and there is no reason to interfere with the sentence.
4. This is the answer which will be returned to the Sessions Judge's reference.