LALIT Vs. STATE

JUDGEMENT

(1.) The applicant Lalit, who was a porter and a, railway servant within the meaning of that term under Section 3 (7) of the Indian Railways Act, 1890, at the railway station of Gorakhpur, was convicted by a learned first class Magistrate of that place under Section 120 (a) of that Act for having been upon a part of the railway, i.e. on the railway platform, in a state of intoxication and sentenced to a fine of Rs. 25/-, or 10 days simple imprisonment in default of payment of fine. The sentence not being applicable, he went up in revision to the learned Sessions Judge of Gorakhpur, but the revision was rejected. He has now come up in revision to this Court.

(2.) His defence was that he had taken brandy on its being prescribed by a doctor for colic pain, and that he was not on duty at that time but had been called from leave of absence on account of that ailment. The learned Magistrate did not deal with the latter portion of his defence at all, and he did not accept the evidence of a doctor produced in defence in support of the former. The learned Sessions Judge considered only the defence which had not been dealt with by the trial court, namely, that the applicant was not on duty but had been called by his officers from his quarter and in doing so he committed an error of record: he remarked that the argument had no force since the Magistrate had found that the applicant was on duty at the time in question. As noticed already, no such finding had in fact been arrived at by the Magistrate. In view of this confusion with regard to facts it appears to be necessary to be certain in respect of them, to begin with.

(3.) The doctor produced in defence stated that on the forenoon in question the applicant went to him and complained of colic pain, and that he prescribed two tea-spoonfuls of brandy as a palliative. The statement of the applicant as that the prescribed dose was in fact taken by him. Now, it is admitted by the prosecution witness Sashi Bhushan Transhipment Cleric, who was the immediate superior officer of the applicant, that the applicant had gone away after taking leave for half an hour or so from him on the ground that he was suffering from colic pain. This statement lends support to the evidence of the doctor produced in defence and to the statement of the applicant. His defence that he had taken two tea-spoonfuls of brandy under medical advice should therefore have been accepted. As regards the other portion of his defence, namely, that he was called from his quarter by his officer, that appears also to be well-founded since it finds support from the admissions of the aforesaid prosecution witness and of another prosecution witness. Claims Inspector Peter P.W. 4. It has therefore to be seen whether in view of the correctness of the defence set up by the applicant he could still be held liable for the offence for which he had been convicted. There was a preliminary objection taken by the learned counsel for the applicant, and it was to the effect that the applicant, being a railway servant, could not legally have been convicted under Section 120 of the Railways Act. In support of his argument he relied upon two decisions : Mulchand v. Emperor, AIR 1929 Sind 249 (1) (A); and Gurunath Shankar v. Emperor, AIR 1937 Bom 357 (B). As against this it has been held in A. P. Cuffly v. Muhamadali Mahomed Ibrahim, AIR 1919 Mad 971 (2) (C); Appal Swamy v. Emperor, AIR 1934 Pat 52 (1) (D); and Dinanath v. Emperor, AIR 1946 Nag 150 (E) that the provisions of Section 120 are wide enough to make any individual, including a railway servant, liable thereunder. True, there is another section of the Act, Section 100, which penalises drunkenness of a railway servant, so that the applicant could well have been prosecuted under that provision. It is however noteworthy that Section 100 does not cover all the acts which have been penalised under Section 120, viz., the acts of committing nuisance, or acts of indecency or use of obscene or abusive language or wilfully or unlawfully interfering with the comfort of any passenger. There is no other section in the Act penalising these acts where such acts are committed by a railway servant. Obviously therefore for these acts conviction of a railway servant would have to be had under Section 120. The mere fact that the concluding portion of Section 120 speaks of forfeiture of fare and removal of the culprit from the railway by any railway servant should not necessarily lead to the inference that the section could not be applicable to a railway servant. Firstly, even a railway servant may have paid fare for travelling (since he may not always be entitled to a pass), and he would not be exempt from removal from the railway by any railway servant should ho commit any of the acts contemplated by the section. On the other hand, the aforesaid portion of the section also speaks of the forfeiture of pass, which would seem to show that a railway servant was also in contemplation of the framers of section. Otherwise, there is nothing in the section which excludes its application to a railway servant since it purports to apply in the case of "a person,' which should mean any person whether he be a railway servant or not. For these reasons I respectfully agree with the view expressed in the aforesaid Madras, Patna and Nagpur decisions and hold that a railway servant can be prosecuted under Section 120 of the Railways Act.