IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 26TH DAY OF OCTOBER 2009/4TH KARTHIKA, 1931 Crl.MC.No. 2584 of 2007 ( ) --------------------------- ST.597/2006 of J.M.F.C.(RAILWAY),KOLLAM PETITIONER/ACCUSED: --------------------- R.MEERA, T.C. 29/89 (1) M.M.K.NAIR ROAD, PETTAH, THIRUVANANTHAPURAM. BY ADVS.SRI.LATHEESH SEBASTIAN SRI.V.K.SANJAY KUMAR RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY ASST. SOLICITOR GENERAL OF PROSECUTIONS HIGH COURT OF KERALA, ERNAKULAM. 2. JOSE.T.KUTTIKATTU, CHIEF PROSECUTING TICKET INSPECTOR, RAILWAY COURT KOLLAM. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------------- Crl.M.C.No.2584 of 2007 -------------------------------------- Dated this the 26th day of October, 2009 O R D E R This petition is filed to quash Annexure-A1 charge and also Annexure-A5 order. 2. A charge was laid against the petitioner before the Honorary Special Judicial Magistrate Court (Railways) Kollam (vide Annexure-A1) alleging that on 19.12.2005 at 8 a.m, petitioner was travelling in sleeper class between Thiruvananthapuram to Kadakavoor with a season ticket, which is not valid in sleeper coach. She refused to pay the railway dues and abused the working TTE in front of the public and thereby made nuisance to travelling public and therefore she is punishable under Sections 137 and 145 clause (b) of the Railways Act, 1989. 3. Learned counsel for the petitioner argued that offence under Section 137 will not lie in this case since as per Section 137 there must be an allegation that the petitioner has committed offending act, with intention to Crl.M.C.No.2584 of 2007 2 defraud the railway administration. Such an allegation is not made in the charge or in the complaint which is produced in this case. A mere allegation that she travelled in a railway compartment without a proper ticket is not sufficient to hold her liable for offence under Section 137. According to learned counsel for the petitioner, when she entered the platform, train was signalled and she entered into the next compartment which happened to be a sleeper coach and she was moved from the sleeper coach to the coach where the compartment where she could travel with a season ticket. 4. But, petitioner was caught by the TTE and she was abused by him. He also snatched away the ticket and fail to return it. The petitioner had season ticket with her which was valid and from the conduct of the petitioner, it would be clear that she had no intention to defraud the railway administration. Therefore, in the absence of any allegation, either in the complaint or in the charge sheet she had anything to defraud the railway administration, she cannot be proceeded under Section 137, it is argued. 5. Learned Standing Counsel for the Railway argued that though the petitioner was having season ticket, that was Crl.M.C.No.2584 of 2007 3 not valid in sleeper coach and she has acted in violation of Section 55. As per Section 55 no person shall enter or remain in any carriage on a railway for the purpose of travelling without a proper pass or ticket. The pass which she was having in her possession was not a proper pass or ticket and therefore, violation of Section 55 is punishable under Section 137 of the Railways Act, it is submitted. It is also submitted that it can be inferred from the conduct that she was travelling in a higher class and therefore, the intention is to defraud the railway. 6. On hearing both sides, on going through the documents produced and on a reading of Sections 137 and 55 of the Railways Act, I find difficult to accept the contentions raised by the respondent. Section 137 reads as follows: “Fraudulently travelling or attempting to travel without proper pass or ticket-(1) if any person, with intent to defraud a railway administration- a) enters or remains in any carriage on a railway or travels in a train in contravention of Section 55, or b) uses or attempts to use a single pass or a single ticket which has already been used on a previous journey, or in the case of a Crl.M.C.No.2584 of 2007 4 return ticket, a half thereof which has already been so used, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than a fine of five hundred rupees. (2) The person referred to in sub-section (1) shall also be liable to pay the excess charge mentioned in sub-section (3) in addition to the ordinary single fare for the distance which he has travelled, or where there is any doubt as to the station from which he started, the ordinary single fare from the station from which the train originally started, or if the tickets of passengers travelling in the train have been examined since the original starting of the train, the ordinary single fare from the place where the tickets were so examined or, in case of their having been examined more than once, were last examined. 3) The excess charge referred to in sub- section (2) shall be a sum equal to the ordinary single fare referred to in that sub-section or [two hundred and fifty rupees], whichever is more.” 7. A reading of Section 137 (1a) it shows that if any person interested or remains in any carriage on a railway or Crl.M.C.No.2584 of 2007 5 travels in a train in contravention of Section 55 i.e, without in his possession a proper pass or ticket or permission of a railway servant authorized in that behalf for his travel will be liable for punishment for which may extent to six months imprisonment and with or without fine which may extent to `1,000/- or with both. 8. But it is essential under Section 137(1) that the prosecution establishes that the travel in contravention of Section 55 was “with intent to defraud a railway administration”. Even if a person is travelling in a railway in contravention of Section 55, he cannot be punished under Section 137 unless a prosecution establishes that such travel was with intent to defraud a railway administration. The intention referred to in Section 137 is one of the ingredients to be established to prove offence under Section 137. A mere violation of Section 55 will not, in the absence of proof that such violation was with intent to defraud a railway administration, will not constitute offence under Section 137. 9. In this case there is absolutely no allegation in the complaint that the petitioner had intention to defraud a Crl.M.C.No.2584 of 2007 6 railway administration by travelling in the sleeper class with a season ticket. In the charge also, it is not mentioned that the petitioner had any intention to defraud a railway administration. In the absence of any allegation, a charge under Section 137 cannot be established. Even if the allegation made by the prosecution is accepted that the petitioner was travelling in the sleeper class with season ticket which was not valid in such compartment, that may not be sufficient to establish offence under Section 137, in the absence of a specific allegation that such travel was with intent to defraud a railway administration. 10. No ingredient of an offence shall be inferred without there being an allegation to that effect. Unless there is a specific allegation regarding all the ingredients of an offence, the court cannot say that an offence under a particular provision is established. An ingredient of an offence is not something which can be inferred without there being any allegation. In the absence of an allegation that the petitioner was travelling with intent to defraud a railway administration, it can be reasonably inferred that the person who has submitted the charge against the petitioner has not Crl.M.C.No.2584 of 2007 7 looked into the intention of the petitioner even if she was acting in violation of Section 55. 11. There must be an investigation into the fact whether the petitioner had intention to defraud a railway administration, if the authority concerned has a case that she committed an offence under Section 137. It is only if an investigation is made into the intention of the accused, it can be revealed whether the accused had any intent to defraud a railway administration or not. A person can get into a particular compartment under various circumstances. She can travel or remain in a particular compartment by mistake or due to some other reason. 12. It appears that there was no investigation into the relevant aspect by the authority concerned. In the absence of any investigation, the person who laid the charge cannot mention whether the petitioner had violated Section 55 with intent to defraud a railway administration. In such circumstances, since one of the main ingredients of offence under Section 137 cannot be presumed from the records placed before me particularly in the absence of a specific allegation, I find that the petitioner cannot be proceeded Crl.M.C.No.2584 of 2007 8 against for an offence under Section 137 of the Railways Act. 13. The other offence alleged is under Section 145(b) of the Railways Act. As per Section 145(b), if any person in any railway carriage or upon any part of a railway commits any nuisance or any indecency or use of abusive or obscene language will be punishable with imprisonment which may extent to six months and with fine which may extent to `500/- for a minimum punishment is also prescribed under the said Section. Learned counsel for the petitioner submitted that there is a bare allegation that the petitioner abused the defacto complainant. 14. The Standing Counsel for the railway submitted that there is an allegation that she abused the TTE that would be sufficient to attract the offence. This fact alleged in the complaint itself. 15. On hearing both sides, and on going through materials placed before me, I find that there is a specific allegation that petitioner abused. But, learned counsel for the petitioner pointed out that no witnesses are cited in the charge except TTE. The words uttered by the petitioner are also not mentioned in the complaint. Learned Standing Crl.M.C.No.2584 of 2007 9 Counsel for the respondent submitted that two witnesses are questioned in the enquiry and they have supported the acts of the TTE. It cannot be said that offence under Section 145 (b) is not disclosed. 16. On going through the complaint, and the charge there is a bare allegation that the petitioner abused the TTE. But on going through the statements of one Sri.Shaji Yohannan and Sri.Ashok Kumar, who gave a statements in support of the defacto complainant, I find that there is absolutely no whisper in their statement to the effect that the petitioner abused the defacto complainant. They only stated that when the TTE asked petitioner to move to S5 to S10 coaches, she was not willing to do the same. But, she was claiming that she was a short distance passenger and she would not move to other coaches. There is absolutely no whisper in their statements that she had in any manner abused the de facto complainant. In such circumstances, I am satisfied that it will be an abuse of process of court if the prosecution is allowed to continue for the various offences alleged against petitioner. Crl.M.C.No.2584 of 2007 10 In the result the following orders passed: 1) Annexure-A1 and also Annexure-A5 are quashed. II) All further proceedings initiated against petitioner on the basis of Annexures-A1 and A5 are quashed. Petition is allowed. K.HEMA, JUDGE cms