BHUPENDRA KUMAR DUTT Vs. 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 Bast 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.

(3.) 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."