G. Mehrotra, C.J.
1. This petitioner has been convicted by the Magistrate under Section 109/112 of the Indian Railways Act and sentenced to pay a fine of Rs. 25/- in default three days simple imprisonment. He was charged under Section 121 of the Indian Railways Act and Section 323 of the Indian Penal Code but the magistrate acquitted him of these two charges. On appeal the Assistant Sessions Judge has affirmed the conviction and sentence under Sections 109 and 112 of the Indian Railways Act.
2. The case for the prosecution is that the complainant Sri Dwijendranath Deka is the head ticket collector at Amingaon Railway Station, On the 2nd July 1981 he was on duty. He found that some passengers were occupying the third class compartment which was reserved for some other passengers and asked the occupants to vacate the compartment. The occupants vacated the compartment. Then the head ticket collector found that the accused with 3 or 4 others were attempting to get into that reserved compartment. His companions on the request of the head ticket collector left the compartment but the accused forced his entry into the compartment. On demand the accused was unable to produce any ticket or pass. The complainant then protested and asked him not to occupy the compartment without ticket or pass. The accused on this assaulted the head ticket collector and the matter was reported to the Assistant Station Master and to the police. The accused was subsequently arrested from another compartment and he produced a pass which had expired on the 30th June, 1961. On the completion of investigation the accused was put up on trial. At first he was charged under Sections 109 and 121 of the Indian Railways Act and Section 323, Indian Penal Code. After the evidence was recorded on the 31st July, 1962 the Magistrate by his order added the charge under Section 112 of the Indian Railways Act. On that the statement of the accused was further recorded and he made a statement that he had a railway 1st class pass which was in his suit case in the compartment and could not be produced at the time of the alleged occurrence. Thereafter he filed a pass which was valid for a period from 2nd July 1961 to 10th July, 1961, The Magistrate, however, acquitted the petitioner of the charges under Section 121, Indian Railways Act and Section 323, Indian Penal Code on the finding that the assault alleged by the prosecution is not established beyond doubt. But he convicted him under Section 109/112, Indian Railways Act.
3. Section 109 of the Indian Railways Act reads at follows:
109(1) If a passenger, having entered a compartment which is reserved by a railway administration for the use of another passenger, or which already contains the maximum number of passengers exhibited therein or thereon under Section 63, or having authorisedly occupied a berth or seat reserved by a railway administration far the use of another passenger, refuses to leave it when required to do so by any railway servant, he may be removed from the compartment or the berth or seat, the case may be, by any railway servant authorised by the railway administration in this behalf or by any other person whom such railway servant may call to his aid and he shall also be punishable with fine which may extend to twenty rupees.
(2) * * * * *
I have quoted above only the relevant portion of the section. The prosecution case is that the compartment was a reserved third class compartment and the accused on being asked1 to leave the compartment refused to leave it. Thus ha was guilty under Section 109 of the Indian Railways Act. The Magistrate found that the prosecution has failed to prove that the compartment was a reserved compartment. But he held that as the petitioner had obstructed the complainant in the discharge of his duties, he was guilty under Section 109. Before a person can be convicted under Section 109 it is essential that the compartment which he refuses to leave is one which must be a reserved one. The appellate court, however, has come to a finding that the compartment is proved to be a reserved compartment. The prosecution have not produced any document to show that the compartment was reserved. But the contention of the State counsel in effect is that it can be proved by oral evidence also and if the appellate court which is a court of fact has con to the finding on oral evidence that the compartment was reserved, this Court in revision will not upset that finding. Apart from the fact that the Railway has not produced the documentary evidence, the statement of the complainant is to the effect that the accused along with a number of people was attempting to enter into the compartment. He then made a forcible entry when he was asked to leave it. He immediately jumped out of the compartment and assaulted the complainant. He ran way and was on duty found and arrested in another compartment. The real complaint made by the complainant was that when he was on duty the accused assaulted him. He was never said to have travelled in that compartment or continued to be in that compartment forcibly or otherwise. Me jumped out of the compartment as he was asked to leave it. Under these circumstances it is difficult to hold that he refused to leave the compartment which was reserved for other passengers.
4. The other ingredient necessary for Section 109, Indian Railways Act is not also established in the case. As I have pointed out, the complainant's main grievance was that he was assaulted and the accused1 behaved very rudely towards him. It is not established, to my mind, that he refused to leave the compartment when required to do so by a railway servant. In fact the alteration as disclosed in the evidence of the complainant, ensued when the accused was attempting according to the complainant to enter into the compartment and he was asked by the complainant not to do be. Whatever other offence the accused may have been charged with, so far as Section 109, Indian Hallways Act is concerned, on the admitted statement of the complainant, the case is not made out. Neither the prosecution has succeeded definitely to establish that the compartment was reserved for other persons nor has the prosecution succeeded in proving that the accused refused to leave the compartment when required to do so.
5. It was then contended by the Senior Government Advocate that Section 106 illustration (b) of the Indian Evidence Act is attracted in this case and the burden is on the accused to prove the fact that he had no intention to defraud the Hallway. As I have already said, the accused has been convicted under Section 112, Railways Act which says that if a person with Intent to defraud a railway administration enters or remains in any carriage on a railway in contravention of Section 68, he will be liable under Section 112 Section 68 requires that everyone should travel with a ticket or a pass. Mere traveling without pass or ticket will not attract Section 112, unless it can be inferred from the circumstances that any person traveled in contravention of Section 68 with intent to defraud the Railway administration. The intention of the accused is a matter which is to be inferred from the circumstances of each case. The contention of the Senior Government Advocate is that under Section 106 illustration (b), Evidence Act, the burden is on the accused to show that ha. had no Intention to defraud the Hallway administration.
Undoubtedly it will be especially within the knowledge of the accused to explain as to how he was not traveling in contravention of Section 68, India Railways Act without a ticket or a pass and to that extern the burden is on the accused, but the prosecution is not relieved of its responsibility to establish that the accused traveled with intent to defraud the railway administration. The question of intention is one which depends upon the circumstances of each case. In the present case the courts below found that he was found attempting to enter into the compartment without 8 ticket or a pass. The prosecution case further is that on demand he did not say that he had a valid pass. On the contrary, he showed a pass which expired on the 30th June 1981. As against that the accused relied upon a pass which was valid from the 2nd July to 10th July, 1961. Both the courts, however, found that from the circumstances it appears that the accused did not possess the said pass on the data when he traveled. The appellate court has gone to the extent of holding that the pass was not a genuine pass. The appellate court seems to be of the opinion that as at the time when the accused was detected traveling, without a pass, he did not give any explanation or did not indicate that he possessed a pass which was placed some where else or which he had lost, it must be presumed in the circumstances that he was attempting to trove with intent to defraud the railway administration. I do not think that any exhaustive list can be given of the circumstances under which a person can be he to be contravening Section 68 with intent to defraud the railway administration. Each case will depend upon its own circumstances.
6. I have read the evidence of the complainant carefully and it appears from the trend of his evidence that the demand to produce the pass or ticket if at all, was made to him subsequently and not at the time where he forcibly entered into the compartment, to effect the complaint so far as the incident in the compartment is concerned, is that in spite of the direction by the head ticket collector not to occupy the compartment which was reserved for other passengers, the accused rushed to enter into the compartment. The demand if at all, according to the complainant's own statement, was made at a time subsequently, when the accused is said to have been arrested in another compartment, it cannot, therefore, be said that at the time when the altercation is alleged to have taken place, any demand was made to him to show his pass. The criticism of the court below. Is that the pass does not bear any date below the signature of the officer concerned. The expired pass also does not bear any date on which the signature of the officer is given, nor the date of issue is to be found he the pass itself. On the face of it, the pass cannot be said to be a forged document. If the prosecution intends to prove that the pass was a forged one, the burden was on the prosecution to prove it. If there was any burden under Section 106 of the Evidence Act on the accused at all, it was discharged by producing the pass.
7. The next criticism is that this pass is produce at the time of argument towards the close of the trial. As I have said, the accused was charged under Section 109 and 121 of the Indian Railways Act and Section 323, Indian Penal Code. It was on the 31st July 1962 that the Magistrate amended the charge and added Section 112 Indian Penal Code and at that stage the accused was questioned. He gave his statement that he had a valid pass given to him as an. emergent case by the A.T.S. Lumding by calling his dealing clerk on Sunday morning. The evidence closed and the pass was produced by the accused. As the charge under Section 112, Indian Railways Act itself was added later, he had no occasion earlier to produce the pass. The main charges were under Section 121, Indian Railways Act and Section 323, Indian Penal Code. As I the State has not filed any appeal against the acquittal under Section 121, Indian Railways Act and Section 323, Indian-Penal Code, it is not for this Court in revision to go into the question of the assault or obstructing the railway servant in his duty.
8. I have gone through the evidence of the complainant and on the admitted facts the charge in my opinion against the accused is not established. The revision is allowed and the accused petitioner is acquitted of the charge.