BHUPENDRA KUMAR DATTA Vs. KING EMPEROR

JUDGEMENT

(1.) This Rule is directed against the conviction of the petitioner under Section 109 of the Indian Railways Act, IX of 1890, At the hearing we have allowed the East Indian Railway Company to appear in support of the order of the Court below in view of the importance of the issues involved.

(2.) This case raises a question which has not yet been considered by this Court but has come under consideration of all the other chartered High Courts. The petitioner avowedly committed the offence with which he is charged in order to test the legality of the action of the East Indian Railway Company in reserving a third class compartment in some of their trains for the use of European passengers only. No other justification for the conduct of the petitioner has been pleaded or argued before us. The only question that we are called upon to consider is an unmixed question of law which may be stated in this form : "Whether the act of the Railway Company in reserving a compartment in trains carrying passengers for Europeans only is illegal, unauthorized and ultra vires of the statutory powers conferred on the Railway Company by law. The facts of the case are not very material but they may be shortly stated in the words of the trying Magistrate. The accused B.K. Dutt was seen seated in a compartment of a third class Railway carriage marked for Europeans of the Up Bombay Mail at Howrah on 9 March, 1923, with some other Indian passengers all of whom were attired in Indian dress. They were asked by a ticket examiner to vacate the compartment as it was reserved for Europeans. The other Indian passengers occupying the said compartment vacated it but the accused did not, saying, he had as much right to occupy the said compartment as any "European." Subsequently the accused vacated the compartment stating that he courted the prosecution to make a test case of it. He was prosecuted and convicted as above and fined Rs. 5.

(3.) If this case is intended to take up the unfortunate question of racial distinction, it is indeed deplorable, but to my thinking it need not involve any such question. The setting apart of a compartment for Europeans is not apparently intended to accord invidious treatment to a particular class of passengers, but the object is to secure the convenience of the travelling public with due regard to the diversity of their habits, customs and prejudices. An European, specially of the class which ordinarily travels in such reserved third class compartments, may be more disagreeable to his Indian fellow passengers, particularly of the orthodox type and peaceful disposition. I may here remark, though it does not affect the question before us, except in so far as to dispel the suspicion of racial preferment, that an Indian in European dress may travel in such compartments without question or hindrance. Though I do not hold that the Railway Company by this arrangement intended to mark any difference between its Indian and European passengers, I cannot but feel that it is desirable that public bodies which exist for public convenience, derive their revenue from the general public and enjoy monopoly in their trade under the law of the land, should, take good care to remove any vestige of suspicion of preferential treatment of any particular class or community.