ORDER :- The main question that is raised in this reference by the applicant Vishwanath Pande, who is an assistant station master, is whether the word "person" used in the beginning of S. 120 of the Railways Act includes a railway servant. The Magistrate answered the question in the affirmative and convicted the applicant under S. 120, but the Additional Sessions Judge considering that it should have been answered in the negative has referred the case to this Court for quashing the applicants conviction.

2. Section 120 reads as follows :

"120. 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."

It may be conceded that the word "person" used in the beginning of the section is general enough to cover any human being, whether he is a railway servant or not. It must also be conceded that the acts which are made punishable are acts which may be done by a railway servant as well as by a person other than a railway servant. Consequently there is nothing in the nature of the offence to suggest that it can be committed only by a person other than a railway servant. There arc cogent reasons, however, for holding that the legislature did not intend a railway servant to be punished under S. 120.

3. Firstly the Act itself makes a distinction between "offences by railway servants" and "other offences" by including Ss. 99 to 105 under the former heading and Ss. 106 to 130 under the latter heading. The inclusion of S. 120 among "other offences" is not quite consistent with the offence made punishable thereunder being an offence liable to be committed by a railway servant.

4. Secondly S. 100 punishes a railway servant in a state of intoxication (while on duty); there would be some duplication if he were also made liable under S. 120 (a). The argument based on duplication is not met by the reply that S. 100 punishes a railway servant for being in a state of intoxication only if he is on duty; if S. 120 applies to a railway servant also it will apply to him whether he is on duty or not and as regards a railway servant on duty duplication will result. Section 101 imposes a penalty on any railway servant, who disobeys any general rule made by or under the Act or any general rule which arises out of the terms of his employment or any rash or negligent act or omission; if a railway servant were punishable under S. 120 for certain acts, he would be liable to be punished under both Ss. 101 and 120. Similarly an act done by a railway servant would bring him within the scope of both S. 102 and S. 120. It is doubtful if the legislature after providing for offences committed by railway servants enacted S. 120 to cover offences by them also.

5. The additional punishment provided in S. 120, viz., that of forfeiture of any fare or of any pass or ticket, cannot be imposed upon a railway servant (if he is not a passenger). The forfeiture is mandatory and not discretionary. If a person is convicted under S. 120 he must be punished with fine in addition to the forfeiture; the obligation imposed by the use of the word "shall" covers the forfeiture also. It is obvious, therefore, that the word "person" was not intended to include a railway servant because there would arise no question of forfeiture of any fare paid by him or of any pass or ticket obtained or purchased by him. A railway servant may obtain or purchase a pass or ticket, but that would be only when he is a passenger.

6. A person convicted under S. 120 is also made liable to be removed from the railway by any rai

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