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PETITIONER: SHYAMLAL

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 13/02/1963

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1963 AIR 1511            1964 SCR  (2)  61

ACT: Criminal   Trial--Obstructing   railway   servant--‘In   the discharge of duty’, Meaning of--Indian Railways Act, 1890 (9 of  1890), s. 121-Indian Penal Code, 1860 (Act 45 of  1860), s. 506.

HEADNOTE: The  appellant,  a  pointsman, bore  grudge  for  some  time against  one C, a railway guard.  While C was on -duty as  a guard  on  a train standing at the platform,  the  appellant came  armed with a scythe, and waiving it in a menacing  way told C that he would cut his neck and hurled abuses on  him. The  appellant was tried and convicted under s. 121,  Indian Railways  Act for wilfully obstructing a railway servant  in the  discharge of his duties.  He contended that no  offence unders.   121 was made out. Held  (per  Imam,  Subba Rao and Mudholkar,  JJ.)  that  the appellant  was rightly convicted under s. 121 of the  Indian Railways  Act.   The Act of the appellant  was  actuated  by malice  on account of the grudge and was wilful  within  the meaning  of s. 121.  Further, C was on duty as a  guard  and even when the train was standing he had to discharge  multi- farious  duties,and during the time the incident took  place he was obstructed from discharging these duties. Per  Dayal, j.-The appellant was not guilty of  the  offence under s. 121, Indian Railways Act, but of the offence  under s. 506, Indian Penal Code.  For a conviction under s. 121 it had  to  be  established  that  C  was  obstructed  "in  the discharge  of  his  duty".   The offence  under  s.  121  is committed  only  when  an accused commits an  act  with  the intention  of preventing a railway servant from  discharging his  duty and the act does prevent him from doing so.   Even threats  of  violence  would amount to  obstruction  if  the accused indicates that violence would be used if the railway servant persists in performing his duties. Empress  v. Badam Singh, (1883) 3 All.  W. N.  197;  Kishori Lal v. Emperor, A. I. R. 1925 All. 409; Bastable v. Little, 62 [1907]  1 K. B. 59 and Betts v. Stevens, [1910] 1 K.  B.  1, referred to.

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Nafar  Sardar v. Emperor, (1932) I. L. R. 60, Cal.  149  and Emperor v. Tohfa, A. I. R. 1953 All. 759, approved.

JUDGMENT: CRIMINAL  APPELATE JURISDICTION : Criminal Appeal No.  9  of 1962. Appeal  by special leave from the judgment and  order  dated June  30,  1961,  of the Allahabad High  Court  in  Criminal Revision No. 971 of 1961. D.   S. Golani and K. L. Mehta, for the appellant. C. P. Lal for the respondent. 1963.   February  13.  The judgment of Imam, Subba  Rao  and Mudholkar jj. was delivered by Imam J. Dayal J. delivered  a separate judgment. IMAM,  J.-Appellant Shyamlal was convicted by  the  Honorary Railway  Bench Magistrate,.  Tundla Bench  Agra,  exercising first  class powers, for an offence punishable under s.  121 of  the Indian Railways Act and was sentenced to pay a  fine of  Rs. 6O/- and in case of default in the payment of  fine, to two months’ rigorous imprisonment.  His appeal to the  11 Additional  Sessions  judge,  Agra  was  dismissed  and  his conviction  and  sentence  were confirmed.   He  then  filed Revision No. 971 of 1961 in the High Court of judicature  at Allahabad, but the same was also rejected by Mr.Justice Brij Lal  Gupta.   Against  the judgment of  the  High  Court  he obtained  special leave from this Court and has  filed  this appeal. The  appellant Shyamlal was a pointsman at Achhnera  Railway Station.   He bore grudge for some time against Hukam  Chand Chaturvedi, P. W. 2, who was a Guard.  The latter bad  taken in 1955  63 objection to a bed being carried on a passenger train by the appellant.   Hukam  Chand had also  detected  the  appellant taking Railway line sleepers in a compartment, a portion  of which  was protruding of the compartment, and made a  report against  the  appellant,  as  a  result  of  which  he   was transferred.  It is alleged that on November 30, 1959, Hukam Chand  was on duty as a Guard on 20 Down train  standing  at the  platform at Achhnera Railway Station at about  4-50  p. in.    Suddenly  the  appellant  came  out  from  behind   a compartment, armed with a scythe, and waiving it in his hand in  a  menacing way told Hukam Chand that he would  cut  his neck,   and  hurled  abuses  on  him  thereby   causing   an obstruction in the discharge of his duty. P.   W.  2,  Hukam  Chand Chaturvedi,  narrated  the  entire prosecution case and his statement was corroborated in  full by P. W. 3 R. L. Pandey, P. W. 4 Chanda Ram, P. W. 8 Maharaj Dutt and P. W. 9 Nisar, who were all independent  witnesses, and  there is nothing at all to show that they are  inimical to  the  appellant.   On  a  careful  consideration  of  the evidence,  the Additional Sessions judge, Agra came  to  the conclusion  that  the prosecution have  been  successful  in establishing its case and the appellant came out from behind a  compartment,  abused Hukam Chand and  waived  the  scythe towards him in a menacing way shouting that he would cut his neck with it. Section 121 of the Indian Railways Act states "If  a  person  wilfully obstructs or  impedes  any  railway servant  in the discharge of his duty, he shall be  punished with imprisonment for a term which may extend to six months, or  with  fine which may extend to five hundred  rupees,  or with both."

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Mr. D. S. Golani, Counsel for the appellant, contended  that as  the prosecution had failed to prove as to what duty  was being actually performed 64 by  Hukam Chand, the appellant cannot be convicted under  s. 121  of  the  Indian  Railways  Act.   In  support  of   his contention  the  counsel relied on Radha Kishan  v.  Emperor (1),  Mohinder  Singh  v. The State (2) Jawand  Mal  v.  The Crown,  (3), In the matter of Baroda Kant Pramanik  (4)  and Emperor v. Popatlal Bhaichand Shah (5).  He also relied upon Rules  113, 114, 115 and 137 of the Rules framed  under  the Indian  Railways  Act.  The facts of all  these  cases  were different  from  those of the present case and they  can  be easily distinguished.  They have therefore no bearing on the decision of the present case. From  the  facts  stated above it is evident  that  the  act alleged to have been done by the appellant was done by  him, actuated  by malice by reason of the fact that  Hukam  Chand had  not  spared him in the past for his lapses.   It  would follow,  therefore,  that  this act was  wilful  within  the meaning  of  s. 121 of the Indian  Railways  Act.   Further, Hukam  Chand was on duty as a guard of train 20 Down,  which was then standing at the platform, and as a Guard he had  to discharge  multifarious duties at the time while  the  train was standing at the platform, e.g. lie had to look after the loading  of the parcels in the luggage van and to  see  that nothing  untoward  happened at the platform.   Thus,  it  is clear,  that during the time that the incident  took  place, viz.,  for  about 15 minutes, he was  obstructed  from  dis- charging  his duty by this deliberate and wilful act on  the part  of the appellant, as it is not only when the train  is in motion that a Guard is on duty, but also while the  train is  standing  at the platform.  We are,  therefore,  of  the opinion that the appellant has wilfully created  obstruction in  the  discharge of the public duty by Hukam  Chand  as  a Guard. Rules  93 to 103 of the Rules framed under certain  sections of the Indian Railways Act, 1890, (1)  A.I.R. (1923) Lah. 71. (3)  (1925) I.L.R. 5 Lah. 467, (2)  A.I.R. (1953) S.C. 415. (4)  (1896) 1 C.W.N. 74. (5) (1929) J.L.R. 54 Bom, 326,  65 deal with the attendance, discipline and equipment of  Staff Working  Trains.   In Rule 95, it is stated that  the  Guard shall  be  in charge of the train in all  matters  affecting stopping or movement of the train for traffic purposes.   It is, therefore, clear that Hukam Chand was on duty as a Guard right  up  to the time when he was to be the  Guard  of  the train,  and  the act of the appellant amounted  to  wilfully creating obstruction in the discharge of the public duty  by Hukam   Chand.   The  appellant  was,   therefore,   rightly convicted under s. 121 of the Indian Railways Act. The appeal is accordingly dismissed. RAGRUBAR DAYAL J.--I am of opinion that the appellant is not guilty  of the offence under s. 121 of the  Indian  Railways Act, but is guilty of the offence under s. 506 1. P. C. The  finding  of fact about the appellant’s conduct  at  the time  cannot  be  challenged before us  in  this  appeal  by special  leave.  The only question to determine  is  whether he, by his conduct, committed an offence under s. 121 of the Act which reads : "If  a  person  wilfully obstructs or  impedes  any  railway servant  in the discharge of his duty he shall  be  punished

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with fine which may extend to one hundred rupees." To  establish the offence it is necessary to prove that  the appellant   acted  wilfully  and  that  his  wilful   action obstructed  or impeded Hukam Chand in the discharge  of  his duty.  The expression ’in the discharge of his duty’ is  not equivalent to the expression ‘when on duty.’ The obstruction or  impediment,  caused  to  the  railway  servant  in   the discharge  of his duty, should result in an  obstruction  or impediment in the execution of the duty he was performing at 66 the  time.  There is nothing on the record to indicate  what Hukam Chand was doing at the time and, consequently,there is nothing on the record to show that what he was doing at  the time amounted to his discharging some duty as a guard.   The fact  that lie was on the platform about 40  minutes  before the departure of the train does not necessarily lead to  the inference that he must have been discharging some duty which he had to perform as a guard of that train. In this connection the Magistrate stated : ".......  there  is  not the least doubt  that  his  conduct amounted  to interference with the duties of the  guard  who was  ready  to go with the train and much of  his  time  was wasted in writing complaints." The  observation  is based not on any  findings,  both  with regard  to  the duties which were interfered with  and  with regard to the time taken in writing complaints.  The  report which Hukam Chand submitted to the station master is a brief one.   It does not even give the time of the  incident.   It could not have taken long.  The learned Sessions judge  said in his judgment : "’So far as the question of obstruction is concerned it  may be  noted  that Shri Hukam Chand was on duty as a  Guard  on train 20 Down, which was then standing at the platform.   As a  guard he had to discharge multifarious duties at  a  time while the train was standing at the platform e.g., he had to look after the loading of the parcels in the luggage van and to see that nothing untoward happened at the platform.  Thus during the time that the incident took place viz., for about 15  minutes, he was obstructed from discharging his duty  by this  67 deliberate and wilful act on the part of the appellant." Again,  there is no reference to any particular  duty  which Hukam  Chand  was  performing  at  the  time.   There   was, according to Hukam Chand’s deposition, a luggage guard  with the  train.   Ram Lakhan Pandey was the luggage  guard.   It would be his duty to look to the loading of the luggage  and not of Hukam Chand, the guard of the train.  It is too vague a  statement to say that the guard had to see  that  nothing untoward  happened on the platform.  Any way, the  behaviour of Shyam Lal at the station in no way affected Hukam Chand’s not  discharging  such a duty.  He could go  to  the  Senior Accounts  Officer to make complaint to him and so  he  could have given effective orders or instructions in case anything happened at the platform. Assuming, however, that Hukam Chand was discharging duty  at the time, the question is whether what the accused  actually did amounted to wilfully obstructing him in the discharge of that  duty.   The appellant threatened Hukam  Chand  with  a scythe  and  shouted abuses at him.  This  conduct  was  not intended  to  cause  obstruction  to  Hukam  Chand  in   the discharge  of  his  duty.   The  section  contemplates   the wilfulness of the alleged culprit to be with respect to  the act of    obstruction  and  not with respect to  any   other act.      Ordinarily, the acts done would be intentional and

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therefore wilful.  The intention to do a certain act, in  no way  directed towards the obstruction of a railway  servant, will  not  be an act of wilful obstruction  of  the  railway servant.  The appellant’s conduct was directed against Hukam Chand personally and not against his performing any official act, in connection with the discharge of his duties.  He was not threatened in order to prevent him from carrying out his duties  and therefore the appellant cannot be said  to  have wilfully obstructed Hukam 68 Chand  in the discharge of his duty.  Hukam Chand’s  conduct on being threatened is irrelevant for considering the nature of  the  appellant’s wilful i. e.,  intentional  act.   What Hukam  Chand did by way of’ making complaints to the  Senior Accounts  officer or to the Station Master -and  which  kept him away for a short time from discharging his normal duties as  a  guard at the station-cannot be said to  be  what  was intended by the appellant. I  may now refer to some cases whose ratio decidendi  has  a bearing on the present case. In Empress v. Badant Singh (1), the execution of a sale deed by  the  judgment  debtor  was held  not  to  amount  to  an obstruction of the sale in execution of the decree since the sale was not obstructed and did actually take place. In the present case too, the train did go in time and  there is  no reason to suppose that Hukam Chand could not  perform any of his necessary duties preliminary to the departure  of the train. In Kishori Lal v. Emperor (2), the patwari refused to  allow the kanungo to go through his books and check them.  He., in fact, went away with his books.  Such a conduct was not held to be an offence under s. 186 I. P. C. which makes voluntary obstruction  to  a public servant in the  discharge  of  his public  functions  an offence.  In that  case,  the  Kanungo could not perform his duty on account of the conduct of  the patwari and even then the patwari’s conduct was held not  to amount  to  a voluntary obstruction of the  kanungo  in  the discharge  of  his duties.  The rationale  of  the  decision seems to be that the kanungo intended to perform his  duties but  was frustrated and that it was therefore not a case  of any obstruction in the discharge of his duties. (1) (1883) 3 All.  W.N. 197.  (2) A.I.R. 1925 All. 409. 69 In  Bastable  v,  Little (1), the accused,  who  had  warned approaching  cars about constables having  measured  certain distances  on  the road and being on the watch in  order  to ascertain  the  speed  at which cars  passed  over  measured distances  with  a  view to discovering  whether  they  were proceeding  at an illegal rate of speed, was held to be  not guilty of the offence of obstructing the constables when  in the  execution of their duty, within the meaning of s. 2  of the   Prevention  of  Crimes  Amendment  Act,  1885.    Lord Alverstone, C. J., said at p. 62 : "I think that the section points to something done in regard to the duty which the constable is performing..." Ridley J., said : "I  think that in order to constitute an offence  under  the section  there must be some interference with the  constable himself  by  physical force or threats.  He must  be  either physically  obstructed  in  doing his  duty  or  -,it  least throats must be used to prevent him from doing it." In  Betts v. Stevens (2), the accused who had done what  the accused  in  Bestable’s Case (1), had done, was held  to  be guilty  of  the  offence under s. 2  of  the  Prevention  of Crimies Amendment Act, .1885, as the warning had been  given

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to cars which were actually proceeding at an excessive speed at  the time the warning was given and who were expected  to cover  the measured distance at some excessive speed.   Lord Alverstone, C..J, said at p. 6 : "In my opinion a man who, finding that a car is breaking the law,  warns  the  driver, so that the speed of  the  car  is slackened,  and  the  police  arc  thereby  prevented   from ascertaining the speed      so are prevented from obtaining the (1) [1907] 1 K.B. 59. (2) [1910] 1 K.B. 1. 70 only  evidence  upon  which, according  to  our  experience, Courts  will act with confidence, is obstructing the  police in the execution of their duty. This is exactly the kind  of case that I had in  my  mind  when the case of  Bastable  v. Little  (1907 1 K. B. 59) was before us, and which  led  me, after  Ridley  J.,  had,  as I thought,  put  too  narrow  a construction  on the word obstruct, to say that I could  not agree in the view that physical obstruction or threats  were the  only kinds of acts that would come within the  section. However,  nothing that I now say must be construed  to  mean that the mere giving of a warning to a passing car that  the driver  must look out as there is a police trap  ahead  will amount  to an obstruction of the police in the execution  of their duty in the absence of evidence that the car was going at  an illegal speed at the time of the warning  given;  but where  it  is  found, as in this case, that  the  cars  were already  breaking  the law at the time of the  warning,  and that the act of the person. giving the warning prevented the police  from  getting  the  only  evidence  which  would  be required  for  the purposes of the case, there I  think  the warning does amount to obstruction." Darling, J., said at p. 8 "The  appellant in effect advised the drivers of those  cars which  were  proceeding at an unlawful speed not  to  go  on committing an unlawful act. If that advice were given simply with a view    to  prevent the continuance of  the  unlawful act  and  procure observance of the law, I should  say  that there  would  not  be an obstruction of the  police  in  the execution  of their duty of collecting evidence  beyond  the point at which the appellant intervened.  The gist of 71 the offence to my mind lies in the intention with which  the thing is done." It is not necessary for me to say how far the view expressed in this case about the commission of the offence is correct. I have made reference to these observations to indicate that a  necessary  element of a person’s wilfully  obstructing  a public  servant  in  the discharge of  his  duties  is  that person’s actual intention in doing the act which is  alleged to  constitute  the  offence and the intention  must  be  to prevent  the public servant from discharging his duty.   The result  of  the  act should be that the  public  servant  is actually obstructed in the discharge of his duty, i. e., the public  servant  is  not able to perform  his  duty.   I  am therefore of opinion that an offence under s. 121 of the Act is  committed only when an accused commits an act  with  the intention of preventing the public servant from  discharging his duty and the act does prevent him from doing so. It has been further urged for the appellant that threats  of violence  cannot  amount to Obstructing Hukam Chand  in  the discharge of his duty.  The appellant merely uttered threats and therefore committed no offence under s. 121 of the  Act. I  am  of  opinion that threats of violence  can  amount  to obstructing  a public servant in the discharge of his  duty,

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if  the  attitude  of the person  holding  out  the  threats indicates that violence would be used if the public  servant persisted  in performing his duty, and approve of  what  was said  by Costello, J., in Nafar Sardar v. Emperor  (1),  and was  approved  in  Emperor v. Tohfa (2)   whose  facts  were similar. In  Nafar Sardar v. Emperor (1), the naib nazir  deputed  to execute  the  decree against the accused  by  attachment  of their  moveable property, proceeded to enter their house  in order  to  attach  the  moveables.   A  number  of   persons collected and some of them, (1)  (1932) I.L.R. 60.  Cal. 149, 160, (2) A.1,R, 1933  All. 759, 72 including  the  accused’, declared that they would  kill  or break the head of anybody coming into their house to  attach the moveables.  Due to such attitude, no attachment could be effected.   In  holding the accused guilty  of  the  offence tinder s. 186 1. P. C. Costello, J., said "    ’No  doubt, in some instances, mere threats may not  of themselves be sufficient.  The real question is whether  the action  or  attitude on the part of the persons  alleged  to have  obstructed a public servant in the performance of  his functions  was of such a nature as to obstruct, that  is  to say,  to stand in the way so as to prevent him  in  carrying out the duties which he had to     discharge.  Where  it  is solely a matter of  threats,  they must be of such a  nature as so to affect the public servant concerned as to cause him to abstain from proceeding with the execution of his duties. It  seems  to me obvious that threats of violence,  made  in such a way as to prevent a public servant from carrying  out his  duty,  would  easily amount to an  obstruction  of  the public  servant,  particularly if such threats  are  coupled with  an aggressive or menacing attitude on the part of  the persons  uttering the threats and still more so if they  are accompanied  by  the flourishing or even the  exhibition  of some  kind of weapon capable of inflicting physical  injury. Threats made by a person holding an Offensive weapon in  his hand must be taken to be just as much an obstruction as that caused by a pet-son actually blocking a gateway or handling, a public servant in a manner calculated to prevent him  from executing his duty," In  view of the facts of the present case,  the  appellant’s conduct in giving threats to Hukam Chand, the guard, at  the station does not amount to an  73 offence  under  s. 121 of the Act but makes out  an  offence under s. 506  I.P.C. I would therefore alter the  conviction of  the appellant for an offence under s. 121 of the Act  to one under s. 506 1. P. C., and maintain the sentence of  Rs. 60/-  fine in default of payment of which he  would  undergo rigorous imprisonment for two months. Appeal dismissed.