P L D 1952 Lahore 104 (PLP)

Muhammad Sharif, Assistant to the Advocate‑General for Respondent. S. A. RAHMAN, J.‑Gulam Rasul, a cleaner in the Loco Shed, North Western Railway, Kundian, was convicted under section 120 (b) of the Railways Act and sentenced to pay a fine of Rs. 50 or in default, to suffer simple imprisonment for one month, by Mr. Muhammad Afzal Khan, Additional District Magistrate, Mianwali. He approached the learned Sessions Judge, Mianwali, on the revision side but his petition was rejected. A revision petition has been presented on his behalf in this Court. According to the prosecution case, the petitioner threw an earthen pot containing filth, on the railway platform at Kundian, where railway officials had gathered to see off Sheikh Sanaullah, Foreman of the Loco Shed, who had been transfer red to another station. There is evidence on the file to suggest that .the petitioner wanted to throw a, pot containing filth while a tea party held in honour of the departing officer was taking place but was dissuaded from that step by Ghulam Haidar, Chargeman, Loco Shed, Kundian (P. W. 1). He, however, put through his plan of, expressing his displeasure against Sheikh Sanaullah, Foreman, by throwing the earthen pot containing filth on the station platform with the result that the clothing of several of those, who were standing near, were besmeared with filth; Sheikh Sanaullah did not escape from that pollution. Ghulam Haidar went and lodged a report with the police and after investigation, the petitioner was prosecuted. I have been taken through the evidence on the record by learned counsel for the petitioner. It appears that some of the witnesses tried to suggest that it was not known who had thrown this pot on the platform. The evidence given by Ghulam Haidar (P. W. 1) was clearly to the effect that it was the petitioner, who did so. He is not proved to be in any way inimical to the petitioner and their is no reason why his statement should not be relied upon. His statement receives support from the testimony of Mehar Dad (P. W. 4),_a fitter in the Loco Shed, who deposed that when he came out after depositing the baggage of Sheikh Sanaullah from the rilway compartment, he found a lot of commotion on the platform, and it was being said that Ghulam Rasul had thrown a pot full of filth. He, however, tried to whittle down his statement by saying in cross‑examination that there were several persons of the name of Ghulam Rasul employed in the Loco Shed. There is also the statement of Babu Din Muhammad, Head Clerk, Loco Shed, Kundian (P. W. 7). He averred that he was standing apart from the group of persons who were bidding farewell to Sheikh Sanaullah, and was talking to another man, when he overheard Ghulam Haidar, Chargeman, saying to Ghulam Rasul accused that he had done a bad thing and that he could not be allowed to go away from there. He saw the clothing of some persons besmeared with filth. The accused evidence to my mind sufficiently establishes that it was Ghulam Rasul petitioner who had thrown the pot of filth on the platform. Learned counsel for the petitioner, however, argued that section 120 of the Railways Act, 1890 was not applicable to the case of a railway servant, even if he committed any of the acts mentioned in that section. That the act attributed to the petitioner amounted to a nuisance, cannot, with any plausibility, be contested. It is, however, contended that this section is meant to apply to passengers only and not to railway officials. In support of this contention reliance has been placed on two authorities reported as Mulchand v. Emperor (A I R 1929 Sind 249 (1) and Gurunath Shankar Godkhinda v. Emperor A I R 1937 Bom. 357). In the Sind case, an Assistant Station Master working at Hyderabad Railway Station, was alleged to have abused a railway Guard and to have used obscene language, besides assaulting him. The trial Magistrate convicted him under section 120 of the Railways Act and sentenced him to pay a fine of Rs.

20. It was held on the language employed in the latter portion of the section, that it had no application to a railway servant. It was pointed out that this part of the section had reference to the forfeiture of fares or passes or tickets and to the removal , of the Offender from the railway premises, by any railway servant. The learned judges thought that if section 120 were to be applied to railway servants, an Assistant Station Master might be removed from the railway premises, by any porter, if used abusive language. The point appears to have been conceded in that case by the learned Public Prosecutor that section 120 had no application to railway servants. In the Bombay case, an Assistant Station Master at Kanpur was alleged to have abused one, Mr. Joshi, a pleader of Belguam and was being prosecuted under section 120 of the Railways Act: It was pleaded, on behalf of, the accused, before the learned trial Magistrate that section 120 did not apply to acts done by a railway official in his official capacity. The learned Magistrate overruled the preliminary objection and his decision was upheld by the Sessions Judge of Belguam in appeal. The accused then moved the High Court of Bombay in revision. A Division Bench of that Court held that the section was not intended to include any act done by a railway servant acting as such. It was observed that the offences specified in section 120, if committed by railway servants, could very well be dealt with by departmental action. It was stressed by the learned judges that the last paragraph of section 120 suggested that the section was not intended to cover an act done by a railway servant in the course of his official duties. It was pointed out that if this interpretation were not adopted the incongruous result would follow that if a station master used abusive langu age to a porter, who had committed some fault, the station master would e liable to removal from the railway premises by another porter. This, it was remarked, would be opposed to the maintenance ref good discipline. The argument was forti fied by reference to certain other sections of the Railway Act for instance, section 100 which made drunkenness by a railway ser vant an offence punishable with an imprisonment up to one year. Section 120 (a) also deals with intoxication. The contrary view was in two authorities, one of the Patna High Court and the other of the Madras High Court. In K. Appal Swamy v. Emperor (A. I. R. 1934 Pat. 52 (1)), Saunders J, in a brief judgment, held that section 120 of the Railways Act applies to railway servants and the word `person occurring therein is wide enough to include a railway employee. He was dealing with a case of a stationmaster who had been convicted under section 120 of the Railways Act and had been sentenced to pay a fine of Rs. 5 only, for having addressed another member of the clerical staff of the station, in abusive and obscene language. The learned Judge followed the Madras case which is reported as A. F. Cuffly v. Muhammad Ali Muhammad Ibrahim Sahib (A. I. R. 1919 Mad. 971 (2)). It was ruled by a Division Bench of the Madras High Court in that case that the word "person" occurring in section 120 of the Rail ways Act includes railway officials. The learned judges pointed out that there were a number of other sections in the Act which deal specifically with offences by passengers travelling in a train. They argued that the word "passenger" did not occur in section 120, and they were not, therefore, prepared to narrow down the connotation of the word "person" occurring therein and confine it to "passengers" only. Section 120 of the Railways Act is set out below :‑ "If a person in any railway carriage or upon any part of a railway‑ (a) is in a state of intoxication, or (b) commits any nuisance, or act of indecency, or uses obscene or abusive language, or (c) wilfully and without lawful excuse interferes with the comfort of any passenger or extinguishes any lamp, he shall be punished with fine which may extend to fifty rupees, in addition to the forfeiture of any fare which he may have paid and of any pass or ticket which he may have obtained or purchased, and may be removed from the railway by any railway servant." Prima facie the word "person" should include even railway officials. The well‑recognised principle of interpretation off penal statutes is that no person who is within the words of the enactment should be allowed to escape punishment and no person who is not thus included should be brought in, if the language employed excludes him. The construction which seeks to confine the section to "passengers" is obviously too narrow to be accepted. In my opinion, members of the public if they commit an offence described in the section, within rail ways premises, would be punishable under it, even if they are not passengers. The last portion of section 120 does suggest, as was pointed out in the Sind and Bombay cases that anoma lous results would follow if railway officials were held to be within the mischief of the Act. But it is to be noted that in both the cases, apparently the railway official involved, com mitted the act, attributed to him, while performing his duties as a servant of the railway. If I might say so with respect, the distinction emphasized by the learned judges of the Bombay High Court that the section should not be made applicable to railway officials "acting as such", is sound. There seems to be no reason why a railway servant, who commits any of the acts mentioned in this section, without any reference, to his official capacity, should be exempted from punishment under this section. A railway official has also two capacities, one" as an official, and the second as a private citizen: To hold that a person, who happened to be a railway official, merely because‑ of that fact could not be convicted under this section, would also lead to incongruous results. Supposing, for instance, railway official employed at Lahore, goes in his private capacity to another railway station, say, Gujranwala, and there commits one of the offences mentioned under section

120. Can it be said that lie was immune from punishment merely because he happened to be a railway official? The answer, I think, should be clearly in the negative. Consequently there can be no objec tion to the conviction of a railway official under this section, when the act attributed to him is committed, not while he is purporting to act as a railway official, but in his private capa city. In these circumstances, even the meanest "railway official can, with absolute propriety and without detriment to discipline, remove him from the railway premises. The test should, therefore, be whether the railway official concerned was acting in his official or in his private capacity in any particular case. The reference to "fare", "ticket" or "pass in the later part of section 120 of the Act would only cover a specific category of the persons within the ambit of the section viz. passengers but that would be no ground for holding that others are beyond its pale merely because a part of the section would be inapt in their case. That part should be held to be applicable so far as may be. In the present case, I find that Ghulam Rasul was not at all acting in his official capacity as a railway servant when he threw the filthy pot on the railway platform. A few railway servants had gathered in a‑ private party to see off a depart ing railway officer. They were not engaged in any official business and clearly, therefore, Ghulam Rasul brought himself within the mischief of section 120 of the Act when, not being on duty at the platform, he committed a nuisance by breaking a filthy pot in the vicinity of those people. I, therefore, uphold the conviction and the sentence and dismiss the revision A.H. Petition dismissed.