Full Judgment
Bhimasankaram, J.
1. This is an application made by the accused in C. C. No. 1295 of 1954 on the file of the Stationary Sub-Magistrate's Court, Vijayawada under Section 561A, Criminal P. C. to quash the proceedings in the case. The accused stands charged under Section 419, Penal Code before the Stationary Sub-Magistrate. The case against him is that on 9-8-1964 he was found in a railway compartment at the Vijayawada railway station and on being asked by the ticket collector for his ticket, he produced a season ticket issued in the name of Mr. G. H. Bhatia and that he pretended to be Mr. Bhatia.
2. The petitioner himself has argued the case in. person and he has several technical objections to the legality of the prosecution and I shall consider them seriatim.
3. The first contention is stated as follows : The proceedings were instituted in the first instance by a complaint being presented by the prosecuting ticket Examiner Vijayawada to the Honorary Railway Ist Class Magistrate, Vijayawada. The Magistrate considered that the case being one of attempting to cheat the railway of knowingly using a season ticket issued to a different person, he had no power to try the case and directed that the charge-sheet be returned to the complainant for being presented before the Stationary Sub-Magistrate having jurisdiction.
The charge-sheet was thereupon presented to the Stationary Sub-Magistrate, Vijayawada, and without the examination of the complainant upon oath summons were issued to the accused for his attendance, in which it was stated that he was to answer to a charge of an offence under Sections 112(b) and 114, Railways Act. The petitioner contends that the charge since framed under Section 419, Penal Code is not sustainable because the summons originally issued to him referred only to offences under the aforesaid mentioned sections of the Indian Railways Act.
4. It is also urged that by virtue of the combined operation of Section 21, Penal Code and Section 137, Clause (4), Railways Act, a ticket collector is not a public servant within the meaning of Section 200, Clause (aa), Criminal P. C., and that therefore the Magistrate should have at once examined the complainant on oath and that the failure to so examine the complainant is fatal to the jurisdiction of the Magistrate.
5. I cannot accept either of these contentions. It is not argued that the facts stated in the complaint do not make out a case under Section 419, Penal Code. That being so, the wrong mention in the summons of the sections of the Indian Rail-Ways Act is an irregularity which does not affect the validity of the charge which has since been framed against the accused after the examination of witnesses for the prosecution.
I do not also agree that the prosecuting Ticket Examiner is not a public servant within the meaning of Section 21, Penal Code. It is true that Section 137, Railways Act enacts that notwithstanding anything in Section 21, Penal Code, a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except for the purpose of Chapter 9 of that Code. The Criminal Procedure Code itself does not define a public servant; but, Sub-section (2) of Section 4 thereof says that
all words and expressions used herein and defined in the Indian Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code.
The effect of this provision is to make Section 21, Penal Code part of the Criminal Procedure Code and the phrase 'public servant' whenever it occurs in the latter Code has to be construed according to that definition.
So construed, there is no doubt that since the railways have become the property of the Union, every railway servant is an officer in the service or pay of the Government within the meaning of Clause (9) of Section 21, Penal Code and is therefore a 'public servant'. Sub-section (4) of Section 137, Railways Act only debars the treatment of such a person as a public servant for the purposes of the Indian Penal Code. It says nothing about the operation of that definition for the purposes of the Criminal Procedure Code. Therefore, I think that the charge-sheet must be treated as having been properly filed by a public servant and that under Section 200, Criminal P. C., the Magistrate could take action without examining the complainant on oath.
The complaint was, therefore, in my opinion, properly entertained by the Stationary Sub-Magistrate, Vijayavada, In any case, the mere fact that the complainant was not examined on oath at once does not it is well-settled, vitiate the proceedings. It is only an irregularity curable by the provisions of Section 537, Criminal P. C. I therefore reject these two contentions.
6. The petitioner next contends that on the facts alleged, there is no offence under Section 419, Penal Code, that the case really falls under Section 70, Railways Act and that the only consequence of an improper use of a season ticket is the forfeiture of that ticket as provided in the conditions embodied on the season ticket. He also contends that the Indian Railways Act does not make the use of one season ticket by another an offence.
But the present charge against him is not under the Indian Railways Act but for cheating by personation and the Indian Railways Act as such has nothing to do with it, viz., the charge of pretending to be somebody else. Even if the petitioner is right in his contention that the Indian Railways Act does not specifically provide for the abuse of a season ticket in this manner, the petitioner cannot escape his answerability under the general criminal law, if his act brings him thereunder.
I do not see any infirmity in the procedure that has taken place up-to-date in the present case. The proceedings now pending before the Stationary Sub-Magistrate appear to me to be perfectly legal and are in any case not so vitiated as to call for the exercise of the jurisdiction of this Court under Section 5S1-A, Criminal P. C.
7. In the result, the Criminal Miscellaneous Petition is dismissed.