Emperor vs Akbaralli Haji Mahmadalli

N.J. Wadia, J.—This is a reference made to us by the Sessions Judge of Broach and Panch-Mahals for setting aside the conviction of one Akbarali Haji Mahmadalli who was convicted by the First Class Magistrate, Godhra, of an offence u/s 114 of the Indian Railways Act and sentenced to a fine of Rs. 20.

One Kalimuddin Haji Mahmadalli, a brother of Akbaralli, was found travelling from Piplod to Godhra on June 26, 1932, with a monthly ticket No. 96. It has been found that the ticket had been issued to Akbaralli. The Ticket Collector at Godhra asked Kalimuddin to pay the fare from Piplod to Godhra and a penalty of Re. 1 on the ground that the monthly ticket which he produced was in his brother''s name and could not be used by him. He failed to do so. On these facts both Kalimuddin and Akbaralli were prosecuted, Kalimuddin u/s 112 of the Indian Railways Act for travelling without a proper ticket, and Akbaralli u/s 114 for having parted with his monthly ticket to Kalimuddin to enable him to travel with it.

A revisional application was filed before the learned Sessions Judge against this conviction by both Kalimuddin and Akbarali. The learned Judge found that the offence u/s 112 of the Indian Railways Act had been satisfactorily proved against Kalimuddin and dismissed the application so far as it related to Kalimuddin. He was, however, of opinion that no offence u/s 114 had been established against Akbaralli. In his view a monthly ticket was not covered by the words "any half of a return ticket" used in Section 114. He was also of opinion that it had not been established that Akbaralli was privy to the use which Kalimuddin had made of the monthly ticket.

The question whether a monthly ticket can be held to be covered by the words "any half of a return ticket" used in Section 114 is not, in our opinion, free from doubt. We think, however, that Akbaralli''s conduct clearly amounts to abetment of the offence u/s 112 of the Indian Railways Act, which was committed by his brother Kalimuddin. It is in evidence that the monthly ticket was in the name of Akbaralli. Akbaralli''s own defence before the Magistrate was clearly based on the assumption that the ticket had been issued to him and that he was the person entitled to use it. It has been found in the lower Court that it was Kalimuddin who was travelling with the ticket and it must, therefore, be presumed that it was Akbaralli who gave the ticket to Kalimuddin to use. It was not contended by Akbaralli in the lower Court that Kalimuddin had taken his ticket without his consent or knowledge. On this view of the case Akbaralli must be held to have abetted the offence which was committed by Kalimuddin.

We see no reason for interfering with the conviction beyond directing that the conviction should be u/s 112 of the Indian Railways Act read with Section 114 of the Indian Penal Code.