Jagat Narayan, J. - (1.) -
(2.) THIS is an appeal by the State against the acquittal of Kanhaiya Lal and Hanuman of a charge under sec. 101 of the Railway Act. Kanhaiya Lal is an Assistant Station Master on the Western Railway and Hanuman is a pointsman Both of them were posted at Nua railway station on 11.4.55 and both of them were on duty at about 11-15 P. M. when a collision between Down Goods Train No. 1160 which was standing on line No. 2 and Up Express Passenger train No. 321 which was arriving at the railway station was averted by the prompt action of the driver of the Passenger train in applying the brakes and stopping it within 105 yards of the Goods train. There are 2 running lines at this station - the platform loop (line No. 1) and the Main line (line No 2). There are three points out of which we are concerned only with the following two in this case : Point No. 1 for diversion of Up trains from main line to platform loop. Point No. 3 for diversion of Down trains from main line to platform loop. Normally the points are set and padlocked for the platform loop. The keys of those padlocks are kept in the personal custody of the station master on duty. There are two outer signals on either side of the railway station operated by levers from the platform and these levers are also provided with locks the keys of which are kept in the personal custody of the station master on duty. Normally one pointsman remains on duty and one remains off duty but when there is a train to be crossed both of them are on duty. At the relevant time Bhanwarlal pointsman was on duty and Hanuman respondent was off duty from 8 P. M. Hanuman was called on duty for the crossing of the Up passenger train with the Down goods train. Both the trains reached the outer signals almost simultaneously at about 11-15 P.M. These signals were Up. First point No. 3 was reversed by Bhanwarlal under the orders of Kanhaiya Lal A.S.M. who was incharge of the railway station at that time, Radhey Shyam station master being off duty and the goods train was received on the main line after lowering outer clear signal. Then what was done according to the prosecution case was this. Kanhaiya Lal, A.S.M. handed over the key of point No. 1, to Hanuman pointsman and sent him to point No. 1 Hanuman reversed the setting of point No. 1 and gave the "all right" signal to the A.S.M. who lowered the Up signal with the result that the passenger train which was being received was diverted to the main line instead of being diverted to the platform loop When Chandra Prakash Rai (P.W. 3) the driver of the passenger train noticed that his train, had been diverted to the main line on which the goods train was standing he immediately applied the brakes with the result that the passenger train came to a stop within 105 yards of the goods train and the collision was averted. Kanhaiya Lal A.S.M committed a breach of the following two express provisions of the Station Working Rules (Ex. P. 2): - 578 (1) Rule 6 lays down that the station master will give out the keys of only such points as it is necessary to alter and will not give the keys of those points which have not to be altered for the reception of the trains. For the reception of the passenger rain point No.1 had not to be altered as it was normally set for the platform loop on which line this train was to be received. Kanhaiya Lal A.S.M. Kanhaiya Lal A.S.M. rule inasmuch as rule inasmuch as he had handed over the key of point No. 1 to Hanuman pointsman, before the passenger train had been received. (2) Rule 9 lays down that when one of the trains to be crossed is a passenger train the station master must personally inspect the facing points for the second and subsequent arriving trains and see that they are correctly set and locked before signals are lowered for such trains, He must keep the keys of these points in his personal possession until all the trains to be crossed have arrived intact, committed a breach of this committed a breach of this before lowering the signal for the passenger train he did not personally goto inspect point No. 1. Kanhaiya Lal alleged in his statement that he did not hand over the key of point No. 1 to Hanuman and that he personally inspected point No. 1 before lowering the signal for the passenger train. It is obvious that both these allegations are false. Hanuman could not have altered the normal setting of point No. 1 unless Kanhaiya Lal had handed him over the key of that point, further, the passenger train would not have been diverted to the main line if Kanhaiya Lal had personally inspected the point and satisfied himself that it was set for the platform loop and had retained the key of the points in his possession til! the train was received. The learned Magistrate was satisfied that the prosecution allegation on facts against Kanhaiya Lal was true. A feeble attempt was made by the learned counsel appearing for him to argue that these facts have not been proved affirmatively by the prosecution evidence. We are satisfied that there is sufficient positive evidence on record to prove these facts. Shri Rishi Prakash Sharma, Traffic Inspector (P.W. 7) who was present at Nua railway station at the time of the accident and who made an enquiry on the spot at that very time stated that he personally examined point No. 1 and found that it was set for the main line and padlock and the key of the padlock were with Hanuman pointsman who was present there. He asked Kanhaiya Lal A.S.M. why he had given the key of point No. 1 to Hanuman before receiving the passenger train and Kanhaiya Lal admitted before him that he had committed a mistake. Radhey Shyam station mister (P.W. 4) who also came to spot on learning about the accident stated that Kanhaiya Lal A S. M. admitted before him that he did not go to inspect the points personally and that Hanuman reversed point No. 1. There can thus be no doubt that Kanhaiya Lal, A.S.M. disobeyed two mandatory rules which he was bound to obey. The case against Hanuman was that he was grossly negligent inasmuch as he reversed point No. 1 and set it on the main line on which a goods train was already standing. Hanuman's defence was that he had been ordered by Kanhaiya Lal A.S.M. to reverse the point and he did so in obedience to his orders. The learned counsel appearing for him argued that the Railways Act or the Rules framed under it did not cast any duty on the pointsman to ascertain whether or not the order which was given to him was a proper one before carrying it out. It is well established that it is the duty of a subordinate officer to disobey an order of his superior officer which on the very face of it is clearly wrong and will lead to wanton loss of life if carried out. We therefore find that Hanuman was guilty of gross negligence in reversing point No. 1 in the circumstances pointed out above even if he did so under the express orders of Kanhaiya Lal A.S.M. It however appears to us improbable that Kanhaiya Lal would give any such order. What seems to have happened was that Kanhaiya Lal gave the key of point No. 1 to Hanuman in disobedience to mandatory rules in order that he may be able to reverse point No. 1, after the reception of the passenger train for despatching the goods train without having to come to the station master's office to fetch the key. The learned Magistrate however acquitted the respondents as he was of the opinion that the safety of any person was not actually endangered by their act or omission. His reasoning was that no collision had actually taken place and as the passenger train was stopped at a distance of about 105 yards from the goods train he thought that it could not be said that the accident was "so certain as to endanger human lives". We are unable to agree with the finding of the learned Magistrate that the safety of the passengers was not actually endangered. If the engine driver of the passenger train had taken for granted that the points were correct as he was entitled to do or if the brakes had failed to act or given way under the sudden strain, a collision would have occurred resulting in loss of human lives. The collision was only averted by the timely application of the brakes. In these circumstances we are of the opinion that the safety of the persons in the passenger train and of the engine driver and firemen of the goods train was actually and in point of fact endangered. There can be no question that in every case where a travelling train is actually diverted to a wrong line on which there is another train the safety of persons in the two train is endangered within the meaning of sec. 101 of the Railway Act. If the error is due to disobedience of any rule or order or due to any rash or negligent act or omission the offence under sec. 101 is committed. Two cases were cited on behalf of Kanhaiya Lal respondent. They are distinguishable. In Pt. Bhagwan Das vs.Emperor (1) there was no rule making it incumbent on the station master to inspect the point personally before lowering the signal. It was according-ly held that in the discharge of his duty the station master had to rely upon the pointsman whose duty it was to set the point according to the directions and safety of the persons in the train was endangered by the failure of the pointsman to set the point correctly. In Ba Lin vs. Emperor (2) the station master allowed a train to proceed to the next station without getting "Line Clear" message. There was however no train between the two stations at that time. Nor was the Signal at the next station lowered so that the train had to come to stop at the outer signal. There was thus no possibility of any accident taking place. We therefore find both Kanhaiya Lal A.S.M. and Hanuman pointsman guilty under sec. 101 of the Railways Act. We accordingly set aside the order of acquittal passed by the learned Magistrate and convict them under sec. 101 of the Railway Act. So far as Kanhaiya Lal, assistant station master is concerned a deterrent punishment is called for in his case. The offence is punishable with imprisonment for a term which may extend to two years or with fine which may extend to five hundred rupees or with both. Taking the circumstances into consideration we sentence Kanhaiya Lal to rigorous imprisonment for one year. We sentence Hanuman to rigorous imprisonment for six months.
(3.) IN assessing the proper punishments to be imposed on the respondents we have taken into considerations the likelihood of their losing their jobs as a result of departmental action following their conviction under sec. 101 Railway Act. Kanhaiya Lal and Hanuman are on bail. The District Magistrate concerned should be directed to get them arrested so that they may undergo the sentences imposed by this Court.;