Foster, J.The petitioner has been convicted u/s 122(2) of the Indian Railways Act (IX of 1890) in the following circumstances. On the 28th March last the petitioner entered upon the platform of the Bhagalpur Railway Station when the 9 Up Passenger was about to arrive. The Ticket Collector went up to the petitioner and asked to see his ticket, but the petitioner had no ticket to show. The Ticket Collector is at disagreement with the petitioner in his account of what happened after this; the former saying that the petitioner admitted that he had no ticket and had also no intention of travelling on the Railway, whereas the petitioner states that he told the Ticket Collector that he was going to Nathnagar and that his ticket was being purchased for him. The Ticket Collector also deposes that he told the petitioner to get a platform ticket, but the petitioner refused. Thereupon the Ticket Collector told the petitioner to leave the platform and when the petitioner refused, the Ticket Collector informed the District Inspector who had come up. The petitioner refused to obey the Inspectors order to leave the platform. On these facts the prosecution has been instituted. The petitioners case is that he had entered on the platform with the intention of travelling to Nathnagar and that a fellow traveller was at that moment securing his ticket, and the ticket was in fact brought to him by his companion at the time when the Inspector was speaking to him.

2. The section under which the petitioner has been convicted reads as follows:

122(1) If a person unlawfully enters upon a Railway, he shall be punished with fine which may extend to Rs. 20.

2. If a person so entering refuses to leave the Railway on being requested to do so by any Railway servant, or by any other person on behalf of the Railway Administration, he shall be punished with fine which may extend to Rs. 50, and may be removed from the Railway by such servant or other person.

3. It is manifest that the most important words in this section are the words "unlawfully enters," for unless and until a person has made an unlawful entry upon the Railway premises he cannot be brought within this penal provision. It appears to me that a provision in a Statute which is of a special nature and not a penal Statute in itself should be interpreted with great caution and that the most reasonable construction to be put on any such general term as "unlawful" would be with reference to the general provisions of the Statute. In other words, I am inclined to take the word "unlawful" to mean "contrary to the law laid down in the Statute." Now, there is one form of unlawful entry for which a special punishment is provided in Section 112 read with Section 68 of the Act, namely, entry upon a Railway carriage without the permission of a Railway servant and without a proper pass or ticket, for the purpose of travelling thereon as a passenger. Another form of entry made unlawful under the Act might be such as is made in contravention of the rules and bye-laws promulgated u/s 47(1) of the Act. If the Railway made a general rule under the Act that nobody should enter upon Railway platforms except passengers with tickets, no doubt any other persons entering upon the platform might be guilty of unlawful entry. The learned Vakil who has appeared for the petitioner has put before me a rule of the East Indian Railway which reads as follows: "84, Platform Tickets. As a rule passengers only are admitted to the station platform but Station Masters have discretion to admit a limited number of persons who are not passengers. At the following stations platform tickets arc issued on payment of one anna each and these may be had on application to the booking clerk--Howrah, Allahahad, Jubbulpore, Cawnpore and Delhi".

4. A third form of unlawful entry which occurs to me is where the Railway Station Master or some subordinate of his closes the platform gate or excludes passage through the gates of passengers who have not tickets. A person entering in resistance of such exclusion would no doubt make an unlawful entry upon Railway premises. But there are numerous cases where entry upon the platform can be perfectly lawful. If the Station Master leaves the platform gate open, those who enter upon the platform can hardly be considered to be other than licensees. It is absurd to think of them as trespassers. No doubt a person who enters in this manner may be quite lawfully ordered to leave the Railway premises, but the point is that he has not entered unlawfully and he can never be brought within the mischief of Section 122 of the Railways Act. As was pointed out by the learned Vakil, it may happen that an intending passenger proceeds on to the platform, leaving a man to obtain his ticket. The Trial Court has made an error in law in two respects; in the first place there is no finding that the entry upon the platform was unlawful within the meaning of the Act. In the second place the learned Magistrate goes so far as to say--"even granting that the accused was an intending passenger he should not have entered on the platform without taking a ticket and when found without a ticket he had no right to remain on the platform when he was asked by the Railway servant to leave it". I am not disputing the second part of this sentence. But his statement amounts to this, that an intending passenger entering upon a Railway platform makes an unlawful entry unless he has a ticket in his possession. My opinion is the exact contrary. He enters lawfully, but if the Railway staff orders him to leave, and he has no ticket, his refusal to go would possibly make him a trespasser and he could be expelled by force. But as I have said before, he could not be made guilty u/s 122 of the Railways Act; both sub-sections require as a necessary preliminary that the person upon whom the penalty is imposed has entered unlawfully.

5. For these reasons I consider that the conviction is not in accordance with law. The Rule is made absolute. The conviction and sentence are set aside and the fine, if paid, shall be refunded.