Gauri Shanker Sahay vs Emperor

Mohamad Noor, J.—The petitioner Gauri Shanker Sahay has been convicted by a Second Class Magistrate of Chapra u/s 108, Railways Act, and sentenced to pay a fine of Rs. 10 for pulling the chain of the alarm signal of a third class compartment while the train was running between Chupra Kutcheri and Goldinganj Railway Stations of the Bengal and North Western Railway. His appeal having been dismissed by the Deputy Magistrate of Chapra with appellate powers, he has come up in revision.

The petitioner admitted having pulled the chain, but justified his act by alleging that there was great rush of the passengers in the compartment and he could not get a seat. He was near the door of the compartment when in consequence of the melee his thali and gold kantha fell from the train and therefore he pulled the chain. When the chain was pulled the train was stopped and was taken back to the place where the articles had fallen down. They were then picked up by the petitioner. The prosecution case was that the story of the petitioner so far as it relates to the dropping down of the thali was correct, but that the gold kantha had not fallen down and this part of his case was false. Both the Courts below have accepted the prosecution case and have disbelieved the fact that the gold kantha had fallen down. The trying Magistrate was of opinion that as the thali (plate) had dropped through his own neglect the petitioner was not justified in stopping the train, while the Court of appeal has held that the falling down of a thali worth Rs. 1-8-0 only was not a sufficient cause for pulling the chain. The view of law taken by the learned trying Magistrate is, in my opinion, wrong. Section 108, Railways Act, uses the words "reasonable and sufficient cause. "Reasonable and sufficient cause" is a question of fact to be determined according to the circumstances of each particular case. No hard and fast rule can be laid down. It cannot be held that if an accident takes place through the fault or neglect of a passenger himself he is not entitled to pull the alarm signal. The learned Magistrate has referred to a decision of the Bombay High Court in Emperor v. Kaikobad Sorabji 1926 Bom 288.

The fact of that case was different. There a passenger had left behind his coat containing valuables on the platform and he stopped the train to take it back. This is quite a different thing from an accident happening in the train itself while it is running. The unreasonableness of the view taken by the learned trying Magistrate will be apparent if I give a few examples. Take for instance the case of a child falling from a train through the neglect of his mother. Can it be said that she will not be justified in taking steps to stop the train? Take a second case. A passenger boards a train just when it is moving and is standing on the foot board. There is no door at that stop to permit him to enter into the compartment. A passenger travelling in the compartment on the footboard of which this man is standing realising the danger of his falling down, pulls the chain. Can the man who pulled the chain be held liable? It is needless for me to multiply instances in which, in my opinion, though an accident has taken place through the fault of a passenger himself, he will be justified in pulling the chain. I, however, agree with the learned Magistrate in the Court of appeal that in this particular case the pulling of the chain was unreasonable if it was only to save a thali worth Rs. 1-8-0 and had the findings of the Courts below that the kantha had not fallen been based upon some evidence, I would not have thought it fit to interfere. In my opinion, the findings are based upon no evidence.

The fact gathered from the evidence of the witnesses is that when the train was stopped the guard of the train (P.W. 1) went to the compartment where the petitioner was and asked him the reason of his stopping the train. He is said to have stated that a "silver thali had failed down." Whether the petitioner said that his thali was of silver has not been discussed by either of the Courts below and is, in my opinion, not believable. It has apparently been added to make the petitioner''s case absurd. To proceed with the story: the train was taken back to the place where, as I have said, the articles had fallen down. The guard (P.W. 1) in his examination-in-chief seems to have deposed that the fallen articles were picked up by the petitioner in his presence and that it was only a phool thali. In cross-examination he has given a go by to this story and it appears that not the guard (P.W. 1), but the assistant guard, who has not been examined in this case was with the petitioner when the latter picked up the article which had fallen down. Therefore, there is no evidence to show that the story of the petitioner that his gold kantha had fallen down is false, as nobody on behalf of the prosecution who had seen the petitioner picking up the fallen articles has been examined. On the other hand, the Assistant Station Master of Goldinganj has deposed that the petitioner when made over to him then and there stated that his gold kantha had also fallen down and that he in fact produced it from his pocket. It may be that the thali being a bigger thing was in the hand of the petitioner and he had put the kantha in his pocket when the guard (P.W. 1) reached the spot. The learned Magistrate has in my opinion, needlessly commented upon the evidence of the Assistant Station Master and the prosecution have unreasonably been allowed to declare this witness hostile and permitted to cross-examine him. There is nothing to show that he was in any way partial towards the accused.

The only reason which the learned trying Magistrate has given for not believing this witness is that he treated the petitioner as a passenger, and not as an accused. I am unable to understand what other treatment the learned Magistrate expected the Assistant Master to mete out to the petitioner. The Assistant Station Master says that he allowed him to sit in the verandah while he himself was working in the room. The petitioner was accused of a trifling offence punishable with a fine of Rs. 50 only. I do not think the Assistant Station Master would have been justified in treating him as a criminal and putting him into trouble. The only thing which the Assistant Station Master had to see was that the petitioner did not abscond. Having satisfied himself in that respect he was perfectly justified in treating him with courtesy and consideration. I regret to say that the evidence of the guard (P.W. 1) is not satisfactory and I am surprised to find that the learned Magistrate has relied upon him. His evidence is inconsistent, as I have pointed out. In his chief he claimed that the fallen articles were picked up in his presence, but in cross-examination he said that it was done in the presence of the Assistant Guard and that he reached the spot some time later and saw a thali only. This witness married a second time in village Nawagaon from where the petitioner comes. He knew the petitioner from before. It appears that in connexion with the second marriage of the witness the people of Nawagaon created some trouble and in fact an order u/s 144, Criminal P.C., was issued against this witness, his father and brother prohibiting him from marrying or taking part in the marriage of the girl. In disobedience of the order he did marry, with the result that he was prosecuted u/s 188, Penal Code, and the prosecution was withdrawn on his paying a certain donation to the Jubilee Fund. No doubt, this witness has denied that the petitioner was one of those persons who had taken part in stopping his marriage; but reading the evidence as a whole I am not prepared to place much reliance upon his evidence.

In short, in my opinion, the finding of of the Courts below that only the thali had fallen down from the train, and not the kantha is based upon no evidence whatsoever. The Courts below have disbelieved the story of the petitioner on the ground that it was unlikely that the kantha could have fallen down. I do not consider the story to be so improbable. The guard has made another unbelievable statement. He has said that there was no rush, but he admits that it was a marriage season and lagan time. Anybody who has experience of trains knows the condition of third class compartments during that season. Apart from this there is the evidence of a defence witness who has sworn that there was a great rush in the compartment, that the petitioner got into it just at about the time when the train was leaving and some articles of his fell down and that he at once gave out that his thali and kantha had fallen down.

I think there is reason to believe that the petitioner''s kantha had also fallen down and that it was worth Rs. 125. Under the circumstances I am not prepared to hold that the pulling of the chain was unreasonable and without sufficient cause. I would, therefore, set aside the conviction and sentence and direct that the fine if paid be refunded to the petitioner.