1. We think the Magistrate was right in convicting the accused under Section 323 of the Indian Penal Code.
2. There is no provision in the Railways Act for ejecting passengers except in certain circumstances, such as are specified in Section 120. Section 122 of the Railways Act of 1890 is not applicable to this case. The term 'railway' as defined in Section 3, Clause (4), excludes railway carriage. The term 'rolling stock' as defined in Section 3, Clause (10), includes it. There is no provision corresponding to Section 3, Sub-clause (10), in the old Acts of 1854 and 1879. Section 68 prohibits (raveling with-out a pass or ticket, but so to travel without intent to defraud is not a criminal offence. Here there is a distinct finding that there was no fraudulent intent. Section 113 provides that a person so travelling shall be liable to pay on demand by any railway servant an excess charge. This section corresponds to Sections 31 and 32 of Act IV of 1879. It is to be noticed that there was no provision in the Act of 1879 for payment of an excess charge, which is somewhat in the nature of a penalty. Taking that provision in connection with the fact that travelling in a railway carriage without a ticket, but without fraudulent intent, has not been made punishable, we think that the Magistrate has taken an entirely correct view of the law. Pratab Daji v. Bombay Broda v. and Central India Railway Co. 1 B. 52 : 1 Ind. Dec. (N.S.) 34 was a civil case which arose out of a claim for damages for wrongful detention and removal of a passenger. It was decided under the old Act, which has since been amended and altered. The expression railway' in Section 122, as already stated, does not include a railway carriage. In addition to the definitions, a comparison of Section 120 and Section 122 leads to the same conclusion. Railway servants are public servants. They are to act within the four corners of their statutory powers. It was held in Butter v. Manchester Sheffield and Lincolnshire Railway Co. (1888) 21 Q.B.D. : 07 : 60 L.T. 89 : 57 L.T.Q.B. 564 : 36 W.B. 726 : 52 J.P. 611 by Lord Esher, M.R., that no one had any right to lay hands forcibly on a passenger in the absence of some legal authority to do so. Lindley, L.J., and Lopes, L.J., agreed in that view and held that the Company's servants were not justified, in the absence of any by law or regulation, in laying hands on a passenger.
3. The main and primary purpose of Sections 68 and 69 of the Indian Railways Act is to prevent persons from travelling in fraud of the Company without having paid the necessary fare, and that the obligation to show the ticket, when required, is subsidiary only to such primary purpose. Travelling without a ticket is not a criminal offence, as has been repeatedly held in this Court. It is the frequent practice of ticket-checkers to take money and issue tickets to passengers, who may have got into a train in a hurry, without tickets, as appears from the evidence. In this case the complainant was perfectly willing and offered to pay the fare together with any excess that might be chargeable. Under the circumstances, it would be absurd to hold that, the ticket-checkers concerned were legally justified in committing the acts charged against them. The least that can be said about the acts complained of is that they were extremely high-handed. The complaint was that the accused had abused the complainant and got him out by force and kicked him and given him a beating, that he was kept confined the whole night and was released the next day. The learned Magistrate has found the two accused guilty under Section 323 of the Indian Penal Code, and gave them his benefit of his doubt as regards the charge under Section 312. The learned Magistrate has also found that the injuries on the person of the complainant were caused by voluntary blows and that those blows were given by the accused with their fists. It is clear that the accused used more force than was necessary for the purpose of removal. The learned Sessions Judge says that, although it is not a case of trespass as defined in the Penal Code, it is at least a civil trespass, and that the owners are entitled to use their common law rights. This is due to his having overlooked the position of a Railway Company and its servants. He has overlooked the fact that they as such cannot, in a case like this, claim common law rights. Where is there again a 'common law right' to inflict blows on a man with fists if he refuses to move?
4. Ticket collectors and checkers are expected to conduct themselves with restraint and self-control. We are disposed to think that they have been leniently dealt with in this case, and refuse the reference. The judgment of the Magistrate, we may add, is characterized by great ability and care.