JUDGMENT Sulaiman, J.
1. (3-5-1926)-I think the Division Bench has taken care to refer only one point of law to the Full Bench, viz., if goods are put on a train at one particular station in a sealed wagon, and subsequently at a later station, they are found missing from it, the evidence of the theft being provided by the only fact that the seals are broken, whether the theft amounts to "robbery from a running train" within the meaning of Risk Note B. The question whether in this particular case there was or was not wilful neglect has not been referred to this Full Bench, and I am not called upon to express any opinion on that point. Had it bean necessary to say anything I would not have been prepared to accept in its entirety all that has fallen on the point from the lips of my learned brother who is presiding over this Bench.
2. The point which we have to decide is whether the word "robbery from a running train" means simple theft unaccompanied by any force or show of any force to any person, and committed behind the back of railway servants so as not to causa any fear in any one's mind. It is not necessary for me to go the length of saying that the word "robbery" in this risk note should be given the same exact definition as is given to it in the Indian Penal Code. Nor is it necessary for me to say that in every private contract in India whenever the word "robbery" is used, it must always mean theft attended with violence. The question before us is one of an interpretation of this particular Risk Note B.
3. We cannot lose sight of the fact that this risk note is not drafted by a layman who may express himself in loose colloquial language, but has been prepared carefully by the railway administration with the approval of the Governor-General in Council; and we are therefore entitled to presume that it was drafted after expert legal advice, and that no word has been put in inadvertently. In this Risk Note we find the use of two words, "theft" and "robbery", which ordinarily have different meanings. Is there any justification for assuming that,although in She same document these two different words have been used, they are intended to have one and the same meaning?
4. If must also be borne in mind that the expression "robbery from a running train" is preceded by the word "fire" and followed by the words"or any other unforeseen event or accident." "Robbery" when used in conjunction with these words connotes something unforeseen and accidental. As thefts from running trains have unfortunately become very common there may be some difficulty in saying that they are unforeseen.
5. It has been suggested that it is impossible to conceive of robbery taking place under circumstances of wilful neglect on the part of the railway administration. It is not necessary for me to speculate; but it may possibly be that the railway administration is expected to keep sufficient guards at railway stations where trains stop, but it would be unreasonable to expect it to sufficiently guard its train against robberies while they are in motion.
6. It is no doubt true that the word "rob" in England, when used colloquially, does often mean" steal." Perhaps the explanation is that there is no other short way of expressing the idea "I have been robbed." One cannot say "I have been 'thieved'." But I am not quite so sure that the word "robbery" is colloquially used equally often as synonymous with "theft". In legal documents, at any rate, the word robbery is not used ordinarily as an equivalent of theft. In Stroud's Judicial Dictionary it is stated that robbery is theft with the additional circumstance that the thing is on the body or in the immediate presence of the person from whom it is taken and that the taking is by an actual violence intentionally used to overcome or prevent his resistance, or by threats of injury to his person, property or reputation. It follows that robbery in its plain and ordinary meaning is something more than theft. It implies an idea of force or fear. At least this is so in India.
7. The Indian case-law may be summarized briefly as follows:
8. In the case of the E.I. Ry. Co. v. Nathu Mal Behari Lal AIR 1917 All 338 Richards,C.J., was inclined to doubt the view of the Court below that the expression "robbery from a running train" did not mean an ordinary theft in a running train, but had reference to robbery as defined in the Penal Code. But the learned Chief Justice made it clear that it was unnecessary to decide the point in that case. In the case of the G.I.P. Ry. Co. v. Bhola Nath Debi Das AIR 1923 All 79 Ryves, J., did express the opinion that "robbery" is used 'really as synonymous with theft and not in the sense as defined by the Penal Code. The case of Gopal Rai Phul Chand v. G.I.P. Ry. Co. AIR 1924 All 621 is distinguishable. The paper book in that case shows that the guard of the train had seen the thieves actually stealing goods from the running train, but did not stop it. The learned District Judge thought that as there was no force on the train it might have been extremely foolish on the part of the guard to stop the train. He therefore held that it could not be said with certainty that there was wilful neglect. On these facts the High Court held that the case fell within the exception. On the other hand, Kanhaiya Lal, J.. in the case of the Rohilkhand and Kumaun Ry. Co. v. Brij Raj AIR 1923 Oudh 212 and Ash worth, J. in the case of B.N.W. Ry. v. Bansi Dhar AIR 1926 Oudh 218 sitting on the Oudh Bench, have held that robbery from a running train is not the same thing as theft. It seems therefore that there is no clear preponderance of authority either way so to enable us to invoke the principle of stare decisis.
9. Even in England, at least in two cases which I have been able to find, the word "robbery" has not been held to mean a mere simple theft. In the case of Latham v. Stanbury (1822) 3 Starkit Rep 143 a certain parcel had bean delivered to the defendants to be carried from London to Dover. One of the defendants deposited it in a desk in the office and left the office for a short time, the key remaining in the door, and on his return found that the parcel was gone. In a general notice the defendants had signified that they would not be responsible for any parcel unless entered as such and paid for; but a number of receipts give by them from time to time were of a form which contained an undertaking "to deliver to-morrow, fire and robbery excepted."
10. Abbot, L.C.J., loft it to the jury to say whether it was special contract to be responsible, loss by fire or robbery excepted remarking that if they found that such was the nature of the contract they should return a verdict for the plaintiffs being of opinion that the loss could not be considered as having been occasioned by robbery within the exception in the contract,
12. In another case, De Rothschild v. Royal Mail Steam Packet Co. (1852) 21 LJEX 273 the bill of lading contained the expression:
the act of God, the Queen's enemies pirates' robbers fire accidents from machinery, boilers and steam, the dangers of the seas, roads and rivers or whatever nature or kind soever excepted.
13. Pollock, C.B. in delivering the judgment of the Court, remarked that one must look at the circumstances under which the contract was made and the peculiar subject to which it applied; and taking these into consideration he held that the word "robbers" meant not thieves, but robbers by force.''
14. There is an additional support for the view which I have taken. In Story's Treatise on the Law of Contract (5th edition, Vol, II, Chapter 31, paragraph 931. at pp. 99 and 190), reliance has been placed on two other reported cases, which unfortunately I have not been able to get. The learned author has summarized his view of the law as follows:
A common carrier is liable for all losses occasioned by accidental fire, or theft, robbery and embezzlement by his own servants, or by other persons although he may have used every precaution to prevent such occurrences.
15. He then goes on discuss the question of the burden of proof in cases of common carriers, which, however, is not applicable to railway companies in India. He then remarks:
There is no difference as to his liability at the common law between cases of theft and of robbery by violence. And if a special contract be made exempting the carrier in case of loss by a 'robbery' this will not exonerate him if the loss be by theft without force.
16. The lost remark shows that in contracts with common carriers, robbery may not be identical with theft without force.
I am therefore of opinion that there is no justification for holding that the word "robbery" in this Risk Note means simple theft without implying any idea of foce or fear.
17. This is my answer to the reference.
18. Subsequent to the delivery of this judgment, I looked up the file at the suggestion of my learned brother Ashworth, J., and discovered that on the back of the Risk Note Form B, its translation in Marathi has been printed, which contains the words "jabri chori" for robbery. The words "jabri "chori" undoubtedly mean theft with compulsion.
Boys, J.
19. (29-41926)-I agree with my brother Mr. Justice Sulaiman in his view of the scope of the question referred to us. It is nothing more than this. Does the term "robbery from a running train "in the Risk Note Form B include an ordinary theft? It is, in my opinion clear that the insertion of the exceptions "fire or robbery from a running train or any other unforeseen event" (though badly drafted) was intended to have and has the effect of excluding all argument as to whether the fire, etc., were or were not due to "wilful neglect" on the part of the railway company. It was merely a clumsy way of saying that where the loss was due to "fire, robbery from a running train or any other unforeseen events" the consignor could not raise any plea of wilful neglect, even though but for the prohibition ha might have been able to show, that e.g., the fire would not have occurred if proper precautions had been taken. It is to be assumed that if the loss was due to either of the specified causes it was not due to wilful neglect.
20. The question then that we have to decide, namely, whether the exclusion of "robbery from a running train", is to be taken as excluding also mere ''theft from a running train", appears to me to be merely a question of what legitimate inference we can draw as to the intention of the parties. If we consider first the intention of the railway company and if the answer be favourable to the railway company, "we may then have to consider what the consignor understood by it and whether he was bound or not by the interpretation that has been arrived at in favour of the railway company. If the interpretation is unfavourable to the railway company, obviously the consignor' will accept it. To consider then what did the railway company mean when they drew up thin document; for there can be no doubt that the particular consignor in this case had nothing to do with the drafting. I find it impossible to believe that a railway company would draw up such an elaborately, though I may add, badly worded document and a document too of such importance to it as this, without the help of legal advice. That position is not and obviously cannot be taken up by the railway company. The second conclusion appears to me to follow inevitably, namely that no lawyer could have drafted this document and come to the question whether he should use the term "robbery" or "theft" and not have used the term which he eventually decided to use with other than a deliberate intention of its carrying the meaning which it must carry to every lawyer in this country; and that is the meaning in the Indian Penal Code. The consideration just stated is in my opinion sufficient to decide the question. But that view is supported by other evidence in the use of the term theft" in an earlier place in this very document. It speaks of "theft by a servant." I think the term "theft" was,there advisedly and deliberately used; for it is very difficult indeed to contemplate the case or robbery by a servant. It is certainly one which is not likely to be present to the mind of anybody drafting such a document. Having therefore deliberately used this word when speaking of an occurrence due to the action of a railway servant, I find it difficult to suppose that when they came to deal with the question whether they should say "theft from a running train or "robbery from a running train" the word "robbery" was not deliberately selected.
21. In reply to the question referred I would answer that the term "robbery" used in the Risk Note Form B is used in the sense in which it is used in the Indian Penal Cods and does not include mere theft." That is the only question I understand to be referred to us.
Ashworth, J.
22. (29-4-1926)-The question is what the term 'robbery' on a running train means in the risk note. One answer is that it merely 'means 'theft, The answer given by Mr. Justice Sulaiman is that it means more than theft; indeed theft with some degree of violence I would go still further. I agree with Mr. Justice Boys that the term 'robbery' in the risk note means robbery as denied in the Indian Penal Code, There are certain arguments which have been stated against such a view. One argument is that this risk note represents a contract between individuals of the public and such and cannot invoke an argument based on the fact that the terms of the risk note have been drafted by the Government of India. This argument; might have some force but for the specific language of Section 72 of the Railways Act. There it is provided that the risk note must be in a form approved by the Governor-General in Council. Surely there is nc impropriety in referring to a thing" as having been done when that thing is required to by done by a section in a statute. The language of this risk note then emanates from a professional source. There might be some force in suggesting that a private individual was not bound to know what the Government of India means by the term robbery' if in the present case the technical meaning of the term robbery was against the interest of the consignor. On the contrary it is the railway company who is endeavouring to widen the meaning of the term robbery in order to limit its liability. In such a case I consider that we may fix on the railway company the knowledge that the term robbery was one used by the Government of India and obviously on the legal advice of its trained legal experts, that is to say that it is a technical term. Another argument taken which at first sight is very plausible, is that the risk note makes the railway company liable for wilful neglect but then adds that wilful neglect shall not include robbery. It said that if robbery means ever mastering violence then it could never be consistent with wilful neglect. But wilful neglect is equally "any unforeseen event" which is also excluded from "wilful neglect." This argument indeed ignores the possibility of taking precautions against violence of any degree. It might welt be said that at least at a large goods station the railway company should have sufficient force to insure protection against a small band of dacoit. This would not be reasonable on a running train and there is no inconsistency in providing that wilful neglect shall not include robbery on a running train. The term "robbery" occurs after the use of the words "fire" and before the use of the words "any other unforeseen event or accident:" In this context it is permissible to construe it to mean something that is either entirely unforeseen or is of so unusual a character as to deserve the term accident. This description will fit a robbery as defined in the Indian Penal Code, that is to say a theft on a running train effected by means of violence or manifest show of violence. It certainly will not fit mare theft by a thief who climbs upon the footboard of a train and pulls away a piece of ttring by which the door of the wagon is tied. Lastly there is an argument that it would be quite impossible for the railway company to provide locks for all their railway wagons both on the ground of expanse and on other obvious grounds. I agree that it may well be that the provision of locks on all railway wagons is impossible on the ground of expense and on the ground that it would dislocate the whale system of exchanging goods from one wagon to another at certain junctions, but I consider that this is irrelevant, and for the following reasons:
The duty cast on the Railway Company is that of a bailee under Sections 152 and 171, Contract Act. New Section 151, Contract Act runs as follows:
In all cases of Bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own good of the same bulk, quantity and as the goods bailed.
23. The important words are "of the same bulk." The liability placed on the Railway Company is the same liability as if the only consignment in respect of which they had to make provisions for safety were the particular consignment of the consignor. No private individual whose worldly goods were in a single wagon would fail to put on a lock on that wagon. The Railway Company has to exercise the same precautions. This is the law, and if it be hold to be absurd or inequitable, the remedy is either to altar the law or to raise the rates for carrying goods.
24. I have held that robbery means what robbery is defined to mean in the Indian Penal Code. I agree however with Sulaiman, J., that even if this is not correct, it must mean something more than mere theft by stealth from a train running or otherwise.
25. I would add that decisions in England to the effect that the term ''robbery" as used in Risk-Notes does not mean "robbery" in its technical legal sense are of little assistance. In at least one of these decisions in England (i.e. DeRothschild v. Royal Mail Steam Packet Co. (1852) 21 LJEX 273 the reasons for refusing to give "robbery" its technical meaning was that in English law the technical meaning of robbery was ''a felonious taking from the person," that is to say pocket picking with violence to the victim. So construed, its application to railway larcenies would be of very limited application. In the Indian Penal Coda "robbery" has a meaning of much more general an application, namely it means taking from the possession of a person (i.e. of a servant of the railway) with violence) or show of violence to any one).
Walsh, J.
26. (29-4-1926)-This case has been referred to a Bench of five Judges to decide the following question:
Whether a railway company who accepts goods for carriage in accordance with Risk Note Form B can successfully plead that there was a robbery from a running train merely by giving proof of the fact that the goods were on the train at one particular station in a sealed van and subsequently at a later station were missing from the van, the evidence of a theft being proved by the fact that the seals were broken. Given those conditions are the railway companies covered by exception of robbery from a running train?
27. A difference of opinion prevailing upon the Bench, in accordance with the usual custom, the Judges holding the view of the minority will deliver judgment first.
28. In my view this was robbery from a running train both in the ordinary sense of that term, and in the sense used in the Risk No!;e, which is merely a commercial contract to be interpreted like any other contract. Amongst the matters which render a railway company liable for loss of goods is "wilful neglect of the railway administration," and the concluding proviso, which has given rise to this controversy, provides that the term "wilful neglect" be not held to include fire, robbery, from a running train, or any other unforeseen event or accident."
29. The view pressed upon us by the plaintiff who has failed in the lower appellate Court, is that the word "robbery," when used in the expression "robbery from a running train "must be incorpreted with reference to the definition of robbery" contained in the Penal Code. I dissent from that view. It is impossible to give that interpretation to the language without inserting in the proviso the words as defined in the Penal Code.
30. The argument, if accepted, involves making a new contract. In my judgment we have no right to do that, or to put any technical construction upon the language which the parties hare not chosen to put themselves. One suggestion, which I confess caused me considerable surprise, made during the argument, was that we ought to do that because it is wall known that this language, if not drafted by an expert, has received the sanction of the Government of India. To my mind that is a wholly irrelevant consideration when the question of the interpretation of a term of a contract arises for decision. But the suggestion cuts both ways, because I should have thought if the intention was that a word is to be read only in the sense defined by the Penal Code, the expert responsible for the draft would have taken care to do so.
31. The intrinsic evidence is to my mind very strong to show that the word "robbery" is not used in this highly technical sense. The definition in S, 390, I.P. C, while including theft, involves "an act which causes death or hurt or wrongful restraint or fear or either of these things," that is to say the notion of violence to the person in connexion with the act of theft. If that is the meaning of the word "robbery" in this document. I am unable to understand why anybody took the trouble to insert the provision that robbery from a running train should not be included in wilful neglect, because if robbery from a running train involved violence to the person in charge, it would be absurd to suppose that anybody could hold that person to have been guilty of wilful neglect in relation to the theft. It seems to me that the context in which the expression is used is inconsistent with the view pressed upon us on behalf of the plaintiff. My view is that the word "robbery" covers all acts of theft committed by trespassers upon premises which they have entered by force and certainly covers what must have happened in this case.
32. I desire to make one observation about which I take a strong view. The wilful neglect in this case is defined in this way. Apparently robberies of this kind are frequent from goods trains, and this particular robbery took place apparently between two stations where there are high embankments, where the 'speed of the train slows down and where it is easy for robbers to board a train. The view taken by the first Court of the facts is that in spite of the fact that there had been previous robberies of this kind, the particular wagon had no locks on the door; the door had been fastened only by seals, and the conclusion therefore is irresistible that there was wilful, neglect on the part of the G.I.P. Ry. Co. No evidence from any railway, servants or expert was called and I think it desirable to utter a protest against a method which some Courts seem too ready to adopt of being wise after the event and of condemning persons for negligence upon their own opinion. It is a startling proposition that because thefts are common in running trains, it is essential that locks should be provided, and that it is wilful neglect not to provide locks. There may be many reasons, why it is impracticable to provide locks. The first observation is that if a robber can board a train at night, and use sufficient violence to break the seals of the door, remove goods and to escape without discovery, it only takes him a little longer and a little more physical effort to remove a lock. It may be that the railway company had considered this proposal and come to the conclusion that the supply of locks would be so expensive, and that the necessity of replacing the broken locks would be so great, that the general public would have to suffer by a large increase in the rates. Wilful neglect is misconduct and in my opinion there was no ground for holding that there had been a wilful neglect.
33. In my opinion the appeal ought to be dismissed.
Answer
34. The answer of the majority of the Bench is "No."
Mukerji, J.
35. (29-4-1926). The question referred to the Full Bench has been stated by my learned brother Walsh, J., and it is not necessary to restate it. I am of the same opinion as my learned brother "Walsh, viz., the word 'robbery is the Risk Note Form B has been used in almost the same sense as the word theft'. My reasons are threefold. The word 'to rob' or 'robbery' has two meanings, one popular and the other technical. The popular meaning can be obtained by looking into any good English dictionary and I have looked up Webster's International Dictionary. The primary meaning is given there as follows:
To take something away by force;
To strip or deprive by stealing; To plunder; to steal from.
An illustration is quoted as follows:
To be executed for robbing a church (Shakespeare)
36. Then follows, in the dictionary, the legal meaning of the word, and then comes a meaning which is obsolete and no longer in use, and then comes a fourth meaning which is given again as follows:
37. To deprive of or to withhold from, unjustly or injuriously; as, to rob one,'of his rest, or of his good name.
38. A tree robs the plants near it of light. We also speak of robbing the poor. This is the popular meaning no doubt. The technical meaning has been given in Webster's Dictionary and also in the Indian Penal Code so far as India is concerned. The technical meaning is given in Section 390, I.P. 0., and, roughly speaking, it implies violence on some living human being. Under Section 390:
In a robbery there is either theft or extortion. Theft is 'robbery' if in order to the committing o£ the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.
Extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, &c,
39. There is nothing in the Risk note B to indicate that it was the intention of the draftsman to adopt in its entirety the definition as given in the Indian Panel Coda. If that had been the idea it could have been easily expressed.
40. As already stated, there are two interpretations of the word robbery': one is popular and the other is technical. It is impossible to believe that the highly technical meaning, as given in the Indian Penal Code, was adopted, for there is no indication of that.
41. The word robbery, has been used in connexion with three other words, viz. 'from a running train.' It will be observed that there is no idea of the presence of any human being in the sentence. Goods are stolen mostly from goods trains and the only human beings that are usually there are at either end of the train. Having regard to this circumstance I am of opinion that the word 'robbery' in connexion with a running train could have only been used in the popular sense and not in the highly technical sense.
42. The third reason for which I hold the opinion already indicated is this: that, as already stated by my learned brother Walsh, the clause in which the word occurs states an exception to what may be regarded as the wilful neglect of railway servants. If the word 'robbery' has been used in its technical sense, it has been used to imply that the officials had been overpowered and rendered helpless when the robbery took place. If that be the idea there would be no necessity for making an exception in the case of robbery. In no case a robbery comes within wilful neglect on the part of the railway servants or railway administration.
43. I agree, therefore, in holding that the word "robbery' has been used in a nontechnical sense and in a sense almost equivalent to the sense of 'theft.'
44. Before I leave the judgment, I would dispose of the argument that the fact that the two words 'theft' and 'robbery' have been used signifies that they must have been used in different senses. It has been said that the two words have each a specific significance and therefore the draftsman could not have used them in the same sense. This argument is no doubt good so far as it goes. But the fact remains that the Risk Note is an ambiguous document, otherwise no Full Bench of five Judges would be sitting to consider its meaning, I have some idea, for what it may be worth, though I myself do not attach much importance to it. The word 'theft' was used in connexion with an act of servants of the company. This naturally implied great precaution of the part of the servants in concealing the act. The act of stealing on the part of railway servants did not imply any amount of daring; but a man who wants to steal goods from a running train does something of a more or less daring character, involving considerable risk to his own person. It may be that having regard to this idea that the draftsman unconsciously used the word 'robbery' while he meant only to use the word 'theft.'