JUDGMENT 1. The Deputy Commissioner of Sylhet has, by his order, dated the 22nd May last, directed further enquiry in the case under sec. 101 of the Indian Railways Act against the Petitioner. The Extra Assistant Commissioner of Karimgunge tried the case and, on the 28th March 1906, discharged the Petitioner but on the application of the Railway Administration, a re-trial has been directed without any notice to the accused. The power conferred by sec. 437 of the Procedure Code to direct a further enquiry should be used sparingly and with great caution, and though it is not illegal to make an order under the section without notice to the accused, lb is always desirable that notice should be given. The ordinary rule is that no order should be passed against an accused without notice to him and this rule has been uniformly followed in this Court and the Allahabad High Court. It is not necessary for us to refer to authorities as they are well known. On this ground alone we ought to set aside the order of the Deputy Commissioner. A question may be very clear to a Magistrate but still he ought to give an accused already discharged an opportunity to be heard. 2. We therefore set aside the order of the Deputy Commissioner of Sylhet dated the 22nd May 1906. 3. The next question is-should we direct a further enquiry into the case against the accused? The answer depends on the legality or otherwise of the order of discharge passed by the Extra Assistant Commissioner of Karimgunge. 4. The order of the 28th March is In these words-" The Traffic Inspector, A. B. Railway, states that there was no fear of danger to the safety of any one as the train was passing very slowly. Sec. 101 of the Act does not apply to the accused. He is discharged under sec. 253 of the Code." 5. Now sec. 101 of the Railways Act runs thus:-101-" If a Railway servant, while on duty, endangers the safety of a person * * * * (c) by any rash or negligent act or omission, he shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to five hundred rupees or with both." 6. The facts before us are these: One evening, the Petitioner, a Station Master, allowed a mixed train to enter the station as if the line was clear, whereas there were 6 or 7 waggons on the line. There was a collision and one waggon was derailed, but the train was going slowly and no person was injured. 7. The question is-should the Petitioner, whose duty it was to see that the signal was up, be prosecuted, i.e., is there any evidence to show that "the safety of any person was endangered" by his omission? 8. The fact that there was a collision and one waggon derailed is more than sufficient to Bhow that the persons in the mixed train were in danger-not necessarily of being killed, but of being Injured by a collision with the waggons. They were led into this position of danger by the signal having been allowed to remain up. There is no doubt that at the time of passing the signal the mixed train was in a position of danger, and the fact that just before or at the moment of impact the train was moving SO slowly that there was then no danger, does not prove that there never was any danger. In other words, the fact that no injury or even that no accident happens does not show that the safety of persons had not been in danger. 9. In the case of The Queen v. Manphool 5 N. W. P. H. C. R. 240 (Ry. Cas. 710) (1873) the following passage occurs In the judgment: "Although he (accused) la shown to have neglected his duty, there is no evidence whatever of the safety of any persons in the goods train having been endangered by his neglect of duty; on the contrary, it is plainly apparent that by reason of the precautions taken by other persons any possible danger which might have resulted from his neglect was avoided." In that case the accused, a signal man, was absent from his post and no answer to a telegraphic message, enquiring if the line was clear, could be obtained from him; the authorities therefore telegraphed to the station beyond and received an answer that the line was clear before dispatching a train. There was therefore no danger at any time. The line was clear and the authorities dispatching the train knew it. There was therefore no danger at any time. The line was clear and the authorities dispatching the train knew it. We do not consider that case to be an authority for the proposition that if a collision or injury is averted, there cannot be a conviction under sec. 101 of the Indian Railways Act. We therefore direct a further enquiry in the case against the Petitioner, Joy Gopal Banerjee, under etc. 101 of the Indian Railways Act.