P.L.Bhargava, J. - (1.) This is a reference, under Section 438, Criminal P. C. made by the learned Sessions Judge of Banaras in the following circumstances: On 12th July 1949, Narain Chali, a Marahata resident of Banglore city, was found travelling without ticket in a third class compartment of 5 Up Mail Ex. Pratapgarh to Banaras Cantt. He thereby rendered himself liable to pay the excess charge and fare mentioned in Sub-section (1)of Section 113, Railways Act; but refused to pay the dues when demanded by the Travelling Ticket Examiner. Consequently, on the following day, that is, on the 13th July, 1949, he was produced before the railway Magistrate at Banaras, along with a written complaint, under Section 113, of the Act. In that complaint the only allegation made against him was that "he travelled without ticket in IIIrd class by 5 U. P. Mail Ex. Pratapgarh Oudh to Banaras Cantt. and refuses to pay".
(2.) The Magistrate put the following question to Narain: " Q. Did you travel without ticket in III class by 5 Up Mail on 12 July 49 from Pratapgarh to Banaras Cantt, and refused to pay the railway dues on demand for so travelling?" He replied: " A. Yes. I am a poor man, I left Bombay about six months ago. I went to Delhi where I was ill for two months. I did no work at Delhi when I got well. I was now going to Calcutta when I was arrested. I cannot pay the dues." Thereupon, the learned Magistrate made the following order: "Accused pleads guilty to having travelled without ticket on the plea that he is a poor man. Not having any money with him with which ha could purchase a ticket his intention was clearly to defraud the Bail-ways. I accordingly convict him under Section 112, Railways Act and sentence him to fine of Rs. 60. or in default six. weeks' Rule I. Out of the fine, if realised, Rs. 15-12-0 will be credited to the Railways".
(3.) Narain was unable to pay the fine and was sent to jail, from where, after 27 days, he sent an application to the Sessions Judge of Banaras, who entertained it as a revision. The learned Judge was of opinion that Narain's conviction under Section 112, Railways Act, was illegal and the period of imprisonment in default of payment of fine was disproportionate to the fine imposed upon him. Accordingly, he released Narain on his executing a personal bond and issued notice to the Government Pleader to show cause why the conviction be not set aside.;