ORDER
Lindsay, J.
1. The applicant was tried Summarily by the Magistrate and was fined Rs. 10 under Section 122, Indian Railways Act 9, of 1890.
2. Two things are necessary to bring a man under that section: (1) that the place of entry must be 'railway' as defined in Section 3(4) of the Act; and (2) the entry should have been unlawful in the inception. If the entry was not unlawful in the beginning neither part of Section 122 of the Act would apply.
3. From the judgment of the learned Magistrate it is clear that the place where the accused was found is occupied as quarters by the railway employees. In Margam Aiyar v. Mercer [1914] M.W.N. 124 it was found by a Division Bench of the Madras High Court that
Staff quarters or any building of a residential character cannot be deemed to be part of a Railway.
within the meaning of Section 3(4) of the Act, and so a conviction under Section 122 of the Act was set aside against the accused in that case. The fact that the place happens to be between two lines makes no difference in this case as the lines, by themselves, are quite apart and there can be even private land between the lines.
4. As regards the second point also there is no evidence at all to show that entry of the applicant was unlawfuL in the beginning. The learned Magistrate has presumed too much. He has not referred in his judgment to any evidence to show that the accused had gone to the place with the object of gambling. The station master does not prove it. What he says is that when he went there some parsons who were there ran away and an empty card case was found. It a long jump to presume from an empty card case that there was a pack of cards also there, and if it was, it was used for gambling. Playing of cards is an innocent pasttime with all classes of people in this country. Mere playing of cards is no offence under the Gambling Act and if a friend of an employee of a railway company asks his friends to play with cards at his house he thereby commits no offence, nor the entry of such friends becomes unlawful under Section 122 of the Act. Such invitations are the order of the day even among society people, and it would act very hardly if such invitations are held to be illegal. Nor does the fact that some other people ran away raise any presumption against the applicant who remained on the spot. Other people's conduct is not at all mentioned by the station master in his report nor was the accused 'called upon to answer that charge. I think this conviction should be set aside on both the grounds: (1) that Section 122 of the Act did not apply to the locality as it did not come under the definition of 'railway;' and (2) that the learned Magistrate had no legal evidence before him to prove that the entry of the applicant was unlawful. Let the record be sent to the Honourable High Court with the recommendation that the conviction of the petitioner be set aside, along with any explanation the learned Magistrate may think proper to submit.