Karnataka High Court
Gaurav Dahake vs The Union Of India on 3 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 08.08.2024
Pronounced on : 03.09.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF SEPTEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.2926 OF 2024
BETWEEN:
GAURAV DAHAKE
S/O MADHUKARLAXMAN DAHAKE
AGED ABOUT 34 YEARS
RESIDING AT: NO.11, E-25/6
MAYUR NAGAR, HUDCO
AURANGABAD - 431 003.
... PETITIONER
(BY SRI ROHAN KOTHARI, ADVOCATE A/W.,
SRI SATHVIK UPADHYA, ADVOCATE)
AND:
THE UNION OF INDIA
REPRESENTED BY
SRI A.K.TIWARY IPF/YPR
OFFICE OF THE POST COMMANDER
RAILWAY PROTECTION FORCE (RPF)
YESHWANTHPUR
BENGALURU DIVISION - 560 022
E-MAIL: [email protected]
REPRESENTED BY L.SPP
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HIGH COURT OF KARNATAKA
BENGALURU.
... RESPONDENT
(BY SRI AJAY PRABHU M., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO 1. QUASH THE OCCURRENCE REPORT
BEARING NO.895/2020 DATED 30.09.2023 (ANNEXURE-A) FILED
BY THE YESHWANTHPUR RAILWAY PROTECTION FORCE FOR THE
OFFENCE P/U/S 143(2) OF THE RAILWAYS ACT, 1989 AND ETC.,
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.08.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question an order
dated 31-10-2023 passed by the XXXV Additional Chief
Metropolitan Magistrate/Special Metropolitan Magistrate (Railways),
Bangalore in C.C.No.3401 of 2023 taking cognizance of the offence
punishable under Section 143 of the Railways Act, 1989 ('the Act'
for short).
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2. Heard Sri Rohan Kothari, learned counsel appearing for the
petitioner and Sri Ajay Prabhu M., learned counsel appearing for the
respondent.
3. Facts, in Brief, germane are as follows:-
The petitioner claims to be an IIT Graduate from IIT
Kharagpur with a deep passion for entrepreneurship. The petitioner
begins a start up called 'buyhatke.com' to help consumers save
money during online transaction by serving as a product price
comparison online browser extension. The petitioner subsequently
in the month of August 2017 develops a software tool called
'Tatkalforsure' which auto fills the details of travellers intending to
book Tatkal tickets on official IRCTC website. The Indian Railways
had just then developed and promoted the concept of IRCTC Tatkal
tickets which are limited tickets reserved solely for last minute
ticket bookings and change of plans of travellers hoping to utilize
the services of the Indian Railways. Tatkal ticket booking would
open at 10 a.m. for AC class and at 11 a.m. for non-AC class one
day in advance from the actual date of start of the train.
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4. The petitioner claims that in order to allay the concern of a
potential traveller, he developed a web extension/app that would
auto-fill details of a potential traveller on the IRCTC website to
expedite the process of booking a Tatkal ticket. The Tatkal website
of Railways used to take 5 to 7 minutes, but in the tool developed
by the petitioner the ticket would get generated in 45 seconds. This
became very popular. Initially the petitioner was doing it for free.
In the month of February 2020, the petitioner would do two acts -
one, limit the bookings that would be booked through his extension
to 10 and charge `30/- per booking. This caught the eye of the
Railways as he was allegedly charging `30/- per ticket. Though the
petitioner claimed that he was paying relevant taxes and GST on all
the transactions done, a notice was issued to him on 29-09-2020,
the petitioner was summoned and enquiry against him was made
for offences punishable under Section 143 of the Act and the laptop
through which the petitioner was doing his extension work comes to
be seized and on the alleged confession of the petitioner, the
respondent registered a crime. Long thereafter, a final report after
3 years of registration of crime comes to be filed before the
concerned Court and the concerned Court takes cognizance of the
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offence against the petitioner for offences punishable under Section
143 of the Act. Taking of cognizance has driven the petitioner to
this Court in the subject petition.
5. The learned counsel appearing for the petitioner would
contend that the ingredients of Section 143 of the Act are not, even
in the remotest sense, present in the case at hand. The petitioner
has neither procured nor distributed railway tickets as is necessary
under Section 143 of the Act. The learned counsel would submit
that permitting further proceedings would become an abuse of the
process of law and result in miscarriage of justice. He would seek to
place reliance on the judgment rendered by the High Court of
Kerala which dealt with similar circumstance.
6. Per contra, the learned counsel Sri M Ajay Prabhu would
vehemently refute the submissions to contend that the petitioner
has indulged in procuring and distributing tickets. The concerned
Court has now taken cognizance of the offence. Since the Court has
taken cognizance of the offence based upon the statement of the
petitioner, further proceedings should be permitted to be continued.
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He would further emphasize on the fact that when the Railway
Protection Force Police had questioned, the petitioner had confessed
that he had made money worth of `12,49,710/- profit by charging
fee of `30/- per e-ticket.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are not in dispute. The genesis of
the issue is from the act of the petitioner in generating the software
tool to help the public who were struggling to get their Tatkal
tickets booked through IRCTC website. The software developed by
the petitioner reduced the time of issuance of a confirmed Tatkal
ticket to 45 seconds as the software tool of the petitioner would fill
up all the details of the consumer within seconds. The process that
the petitioner adopted would go this way -
(i) "Enable the "Tatkalforsure" browser extension and log in
with credentials of the IRCTC username and password;
(ii) Fill all relevant information relating to the journey to be
taken, including train name, number, class and quota;
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(iii) Enter all relevant details of the passengers intending to
travel on the train;
(iv) Select preferred payment method which is securely stored
only on the website and not on any cloud platforms;
(v) Thereafter, once all the relevant details are filled out and
stored, the user has to merely click on "book now" two
minutes prior to the opening of the Tatkal window;
(vi) Once "book now" is clicked on, the user is
automatically redirected to the official website of
the IRCTC wherein all relevant details including login
credentials, train name, passenger name and payment
method are automatically filled by the software tool. The
user only has to fill in the captcha at all relevant
points;
(vii) The entire process is carried on within 40-45 seconds of
login to the IRCTC website which saves precious time to
the potential traveller to confirm their ticket which
otherwise would take at least 7 - 8 minutes."
The averment is that the potential traveller to get a confirmed
ticket from Railways would take 8 minutes and through the web-
extension of the petitioner it would take 40 - 45 seconds. All was
well for three years when the petitioner was doing it for free. It
appears that to prevent misuse of the software tool by unauthorized
persons as bulk tickets were booked, he would restrict them to ten
tickets in a month and built a security system that would block
those accounts which would indulge in bulk ticketing points and to
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provide any authenticity he began to charge `30/- per ticket from
February 2020 and claims to have paid all the taxes. Charging `30/-
catches the eye of the Railways. He was summoned and a
statement of his was recorded. The petitioner confessed that he is
charging `30/- and claiming that he has caused loss to the
Railways, crime for offences punishable under Section 143 of the
Act is initiated. Since the offence alleged is Section 143 of the Act, I
deem it appropriate to notice Section 143 of the Act. It 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 for reserved
accommodation for journey in a train; or
(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 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 the 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.
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(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."
(Emphasis supplied)
Section 143 of the Act prohibits unauthorized carrying on of
business of procuring and supplying railway tickets. If any person
who is not a Railway servant or agent carrying on the business of
procuring and supplying the tickets without permission it would
become an offence punishable under Section 143 of the Act.
9. The issue now would be whether, the petitioner has either
procured or supplied railway tickets. The answer would be
unequivocal and an emphatic 'no'. The petitioner has neither
procured nor supplied tickets. All that the petitioner has done was
creation of an extension to the IRCTC website. That extension
would speed up the process of securing Tatkal confirmation of those
potential traveller and the period of 7 minutes is said to have been
reduced to 40 seconds. It would undoubtedly benefit all the public.
Unless the ingredients of Section 143 are met, the crime itself could
not have been registered. The Railway Police did not file their final
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report despite passage of 3 years. Repeated show cause notices
were issued by the concerned Court. It is only then a final report is
placed before the Court on 30-10-2023 upon which the impugned
order of cognizance emerges. The petitioner neither purchases,
sells or attempts to purchase tickets of the railways. It is only
those persons who unauthorisedly carry on the business of
procuring and supplying tickets for travel on a railway would
become open to punishment for offence punishable under Section
143 of the Act. The petitioner has not indulged in unauthorized
carrying on of business of procuring and supplying of railway
tickets. Finding no ingredient of offence under Section 143 of the
Act, permitting further proceedings would run counter to law. This
view of mine, in this regard, is fortified by the judgment rendered
by the Kerala High Court reported in MATHEW K.CHERIAN v.
STATE OF KERALA1. The challenge therein was also to an offence
under Section 143 of the Act. The Kerala high Court answers the
issue as follows:
".... .... ....
3. Occurrence report is similar to the First Information
Report. Normally this Court would not have interfered with the
1
2016 SCC OnLine Ker. 31556
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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
(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
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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 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
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
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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 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."
(Emphasis supplied)
The facts obtaining before the High Court of Kerala were similar to
the one that are obtaining in the case at hand. I am in complete
agreement with what is held by the Kerala High Court.
10. Therefore, finding no warrant to permit continuance of the
proceedings against the petitioner, I deem it appropriate to exercise
my jurisdiction under Section 482 of the Cr.P.C., and obliterate the
crime against the petitioner.
11. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Order dated 31-10-2023 passed by the XXXV Additional
Chief Metropolitan Magistrate/Special Metropolitan
Magistrate (Railways) Bangalore in C.C.No.3401 of
2023 and all further actions thereto stand quashed.
(iii) It is made clear that the observations made in the
course of the order would not become applicable to any
other proceeding initiated against the petitioner.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp
CT:SS
