Kerala High Court
Mathew.K.Cherian vs State Of Kerala on 22 September, 2016
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 22ND DAY OF SEPTEMBER 2016/31ST BHADRA, 1938
Crl.MC.No. 1991 of 2016 ()
--------------------------------------
PETITIONER(S)/2ND ACCUSED:
----------------------------------------------
MATHEW.K.CHERIAN,
MANAGING DIRECTOR, KOSAMATTAM FINANCE LTD.,
MKC BUILDING, ML ROAD JUNCTION, KOTTAYAM.
BY ADVS.SRI.BECHU KURIAN THOMAS (SR.)
SRI.PAUL JACOB (P)
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
SRI.GEORGE A.CHERIAN
RESPONDENT(S)/STATE & COMPLAINANT:
-------------------------------------------------------------
1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. INSPECTOR,
RAILWAY PROTECTION FORCE, KOTTAYAM.
R2 BY ADV. SRI.JOHN MATHEW,SC, RAILWAYS
R2 BY SRI.C.S.DIAS,SC, RAILWAYS
R1 BY PUBLIC PROSECUTOR M.K.PUSHPALATHA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-09-2016,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AD
Crl.MC.No. 1991 of 2016 ()
---------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
ANNEXURE A1: CERTIFIED COPY OF THE OCCURRENCE REPORT IN CRIME
NO.524/2016 OF THE KOTTAYAM RPF POST.
RESPONDENT(S)' EXHIBITS
---------------------------------------------
NIL
//TRUE COPY//
P.A. TO JUDGE
AD
A.MUHAMED MUSTAQUE, J.
---------------------------------------
Crl.M.C No.1991 of 2016
----------------------------------------
Dated this the 22nd day of September, 2016
ORDER
This Crl.M.C is filed challenging registration of a crime against the petitioner under Section 143 (1)(a) of the Railways Act, 1989 (hereinafter referred to as Act).
2. The petitioner is the Managing Director of a Non Banking Finance Company registered with RBI. They provide various services to the customers. A crime has been registered against the petitioner and employees of his Company, alleging that they have created various fake user ID with the portal of IRCTC to procure and supply railway tickets to various persons. Alleging an offence as above, a crime has been registered against the petitioner as Crime No.524/2016 of Kottayam RPF Post. An occurrence report in this regard has been submitted before the Chief Judicial Magistrate Court, Kottayam, Annexure A1 is the report. The petitioner challenges Annexure A1 occurrence report alleging that no offence under Section 143 of the Act has been Crl.M.C No.1991 of 2016 2 made out against him or his employees.
3. Occurrence report is similar to the First Information Report. Normally this Court would not have interfered with the occurrence report. However a statement has been filed by the 2nd respondent detailing the nature of offence committed by the petitioner. At a glance, it can be treated as a complaint against the petitioner to defend their action. The statement discloses that the petitioner created various fake user IDs in the name of different persons with the IRCTC portal to procure and supply railway tickets to travellers.
4. The case of the Railway is that since the petitioner is not Railway's agent and authorised to supply the railway tickets, an offence under Section 143 of the Act is made out. It is appropriate to refer Section 143 of the Act which reads as follows:
143. Penalty for unauthorised carrying on of business of procuring and supplying of railway tickets.- (1) If any person, not being a railway servant or an agent authorised in this behalf, -
(a) carries on the business of procuring and supplying tickets for travel on a railway or from reserved accommodation for journey in a train;
or Crl.M.C No.1991 of 2016 3
(b) purchases or sells or attempts to purchase or sell tickets with a view to carrying on any such business either by himself or by any other person, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees, or with both, and shall also forfeit the tickets which he do so procures, supplies, purchases, sells or attempts to purchase or sell:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in judgment of the court, such punishment shall not be less than imprisonment for a term of one month or a fine of five thousand rupees.
(2) Whoever abets any offence punishable under this section shall, whether or not such offence is committed, be punishable with the same punishment as is provided for the offence.
5. The Act was enacted much before the advent of e-ticket system. The object of Section 143 is to prevent procurement of ticket for travelling on railway or in a reserved compartment or journey in a train by any person with the ticket not being issued by railway servant or by an authorised agent. It appears that Railway wants to ensure the authenticity of the tickets issued to the travellers on a travel in a railway. It appears that many travellers were travelling on railway in a ticket not being issued to them and issued in the name of third parties. The Railway Act Crl.M.C No.1991 of 2016 4 wants to ensure that the ticket is issued by railway servant or agent authorised on this behalf as the case may be to a genuine travellers.
6. The question before this Court arises in this context is whether purchasing of online tickets through the website of IRCTC by a traveller through a facility provided by the petitioner or staff would amounts to procuring and supplying tickets for travelling on a railway. In this regard two aspects have to be noted:- One is that ticket is purchased in the name of traveller. Secondly the ticket is issued by IRCTC. As seen from the counter, the allegation as against the petitioner is that the petitioner misused IRCTC portal by creating fake User ID to procure and supply tickets to travellers. The use of internet medium registered in the name of a person, to issue tickets to a third party is not one contemplated under Section 143 for the purpose of considering it as an offence. As has been noted Section 143 was enacted much before the advent of e-ticket system. The railway's stand is that creating a fake user ID for issuing railway ticket is an illegal act attracting an offence under Crl.M.C No.1991 of 2016 5 Section 143 of the Act. I am afraid that this has any merit to constitute an offence. First of all, the registration of the user ID with IRCTC is regulated by the terms and condition of the IRCTC. If there is any violation by use of such facility with the IRCTC, it is open for IRCTC to take appropriate action to de-register such registered users. Misusing a user ID for purchasing a ticket by genuine person is not an offence as contemplated under Section 143 of the Act. There is no sale of ticket by the petitioner as even admitted in the counter, the sale is being conducted by IRCTC. The use of computer or use of printer for printing ticket purchased by a traveller cannot be deemed as sale effected by the owner of the computer or printer. Procuring tickets has to be understood as providing or giving tickets to the travellers. Admittedly tickets are procured by the genuine travellers. When legislature considered an actionable wrong in a particular manner in a brick and mortar business, it cannot be applied to an online business unless all elements constituting the offence are present in the online business. The offence is not attracted even if one has to assume that action of the accused would amount to Crl.M.C No.1991 of 2016 6 supplying tickets. The Penal Provision clearly mandates that tickets have to be procured by the offender. Admittedly tickets are purchased by the genuine travellers. The dictionary meaning of procure is "to obtain by some efforts or means or acquire (see Webster's Comprehensive dictionary, encyclopedic edition). To constitute a criminal offence under Section 143 of the Act, the action of the accused must be a kind of act as prescribed in the Penal Provision.
In the light of discussion as above, entire proceeding based on Annexure-A1 is set aside and quashed.
Sd/-
A.MUHAMED MUSTAQUE JUDGE AD