JUDGMENT Mitra, J. - The Petitioner was in the service of the East Indian Railway Company as station master of the Bonpas station and he resigned the service on the 9th January last. On the night of the 8th April he was traveling without a ticket from Rampur Hat by a down train and at Bhedia, Cox, a traveling ticket inspector of the Company, discovered that he had not a ticket. It has been found by the lower Courts that Cox asked the Petitioner to produce his ticket and the Petitioner thereupon produced the outward half of a return ticket for journey between Bonpas and Bankipur. This ticket had not the slightest bearing on the Petitioner's travel from Rampur Hat on the 8th April. The Petitioner was prosecuted under sec. 417, I. P. C, for cheating and also under sec. 112 of the Indian Railways Act and was convicted by one of the Deputy Magistrates at Burdwan on both the charges. On appeal, the Sessions Judge of Burdwan modified the conviction into one under sec. 417 read with sec. 511, I. P. C, i.e., of attempt to cheat and also into one under sec. 112 of the Railways Act. He, however, set aside the sentence under sec. 112 as cumulative sentences could not be passed for the same offence under different. Acts and affirmed the sentence of simple imprisonment for two months under sec. 417 read with sec. 511, I. P. C. On the 19th July last a rule was issued by this Court on the District Magistrate of Burdwan to show cause why the conviction and sentence under sec. 417 with 511, I. P. C, should not be set aside and why such order under sec. 112 of the Railways Act should not be passed as to this Court might seem proper. The learned Advocate-General has "shown cause on behalf of the District Magistrate. 2. On the judgments of the lower Courts" and the arguments before us, two questions arise for our consideration:-(1) whether the Petitioner committed two distinct offences, one under the Railways Act and the other under the Indian Penal Code; and (2) if not, whether ho should be sentenced under the Penal Code or the Railways Act or both. 3. 2. On the judgments of the lower Courts" and the arguments before us, two questions arise for our consideration:-(1) whether the Petitioner committed two distinct offences, one under the Railways Act and the other under the Indian Penal Code; and (2) if not, whether ho should be sentenced under the Penal Code or the Railways Act or both. 3. The learned Sessions Judge is of opinion that the entering into the train and traveling without a ticket and the attempt to palm off the used ticket from Bonpas to Bankipur upon Cox were not separate and distinct offences. This, in our opinion, is a correct Inference from the facts found. Entering into a Railway compartment and traveling without a ticket are only some of the ingredients of an offence under sec. 112 of the Railways Act. These acts in themselves are not penal under the section. The essence of an offence under the section is dishonest or fraudulent intention-the intention " to defraud " the Railway Administration of its just dues, i.e., the fare payable by the passenger. In Bentham v. Style L. R. 3 Q. B. D. 289 (1878)., Cockburn, C. J., and Manisty, J., held, in construing a bye-law similar in terms to sec. 112 of pur Railways Act, that man-year, the intention to defraud, must be proved for obtaining a conviction. The words in the Indian Law are distinct. A passenger may travel without taking a ticket owing to mistake or want of time to take one but he may not have the remotest intention to defraud the Railway Administration, and it will be wrong to hold him guilty under sec. 112 of the Act. In this connection we may refer also to Queen-Empress v. Ram pal I. L. R. 20 All. 95 (1897)... 4. The fraudulent intention of a passenger must appear from some other act or omission, than merely traveling without a ticket. The mere fact that the Petitioner before us traveling from Rampur Hat down without a ticket would not have been sufficient to constitute an offence under sec. 112; something more was necessary to be proved to secure a conviction. That ' something' appears in this case by the Petitioner's attempt to free himself from liability by producing an used and irrelevant ticket. 112; something more was necessary to be proved to secure a conviction. That ' something' appears in this case by the Petitioner's attempt to free himself from liability by producing an used and irrelevant ticket. The last act is evidence, and very cogent evidence of the intention of the Petitioner to cause loss to the Railway Administration. As observed by the learned Sessions Judge, " The production of the used ticket was simply one of the acts by which he sought to carry out his intention of defrauding the Company and could not have resulted in any more harm being done to the Company than he intended to cause them when he entered the train without a ticket." Cox was merely an agent of the East Indian Railway Administration. The intention to cheat him and the Railway Administration is one and the same offence, and, in fact, so far as Cox personally was concerned, there could be no cheating within the import of sec. 417. The Petitioner intentionally attempted to deceive Cox and through him the Railway Administration, his object being that Cox might omit to demand the fare and the fine, if any, livable under the bye-laws of the Railway Administration for traveling without a ticket. The element of the offence under sec. 417, I. P. C, is precisely the same as that of one under sec. 112 of the Railways Act. If the Indian Railways Act had not been passed or sec. 112 were not in it, the offence of which the Petitioner would have been guilty would be one under sec: 417, I. P. C. Thus the Petitioner, as found by the learned Sessions Judge, committed on the 8th of April one and a single offence as regards the East Indian Railway Administration both under sec. 417, I. P. C, and under sec. 112 of the Railways Act. He did not commit two distinct and separate offences. 5. It was suggested during the argument that sec. 112 of the Railways Act does not contemplate a case like the present -a case in which a false and an entirely irrelevant ticket was produced. Such a case does not come within cl. (b) of the section, but it does come under cl. (a) which we must read with sec. 68. The accused entered a Railway car for the purpose of traveling and with a fraudulent and dishonest intention. Such a case does not come within cl. (b) of the section, but it does come under cl. (a) which we must read with sec. 68. The accused entered a Railway car for the purpose of traveling and with a fraudulent and dishonest intention. Traveling without a ticket comes within the words of sec. 68 and so under sec. 112 (a). 6. Should he then be sentenced severally under sec.-417, I. P. C and sec. 112 of the Railways Act ? It is clear he cannot be sentenced under both the sections and the Deputy Magistrate was in error in sentencing him separately under both. Facts which form the basis of a conviction and sentence under one charge cannot also form the basis of a conviction and also a separate sentence under another charge. There cannot be cumulative sentences though a conviction might take place on an alternative charge or even both. Sec. 26 of the General Clauses Act (X of 1897) enacts: " Where an act or omission constitute an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of' the enactments but shall not be liable to be punished twice for the same offence." 7. There is another principle for our guidance and that is that if an offence is punishable by the general law such as the Indian Penal Code, and also by a later special law applicable to particular persons and particular circumstances, the special law should apply. It is presumed that the Legislature intends that the special form of punishment is appropriate to special cases. The punishment so provided by the special law may be severer or lighter than that provided by the general law, but that would not matter. The rule is quoted by Lord Esher, M. R., in Lee v. Dangar L. R. (1892) 2 Q. B. 337 at p. 348. "If one Statute make the doing of an act felonious and a subsequent act make it only penal, the latter is considered as a virtual repeal of the former." Rex v. Davis 1 Leach Cr. C. 271 (1783). 8. "If one Statute make the doing of an act felonious and a subsequent act make it only penal, the latter is considered as a virtual repeal of the former." Rex v. Davis 1 Leach Cr. C. 271 (1783). 8. We are not, however, disposed now to lay down broadly in this country that in every case a special penal law repeals by implication a previously existing general law relating to an offence of the same nature, and in this case it is not necessary for us to do so. If we were to do so, we might infringe the rule of interpretation in sec. 26 of the General Clauses Act. We are not also disposed to accept Mr. Roy's contention that the penal provisions in the Indian Railways Act are self-contained and the punishment for acts and omissions regarding a Railway Administration in India must be inflicted under this Act only. The penal provisions in the Act are not obviously exhaustive and there is nothing in the Act itself or any other enactment in force in India which excludes the operation of the general laws in force as to offences which are not punishable under the Act. The case of Chandi Pershaad v. Abdur Rahtnan I. L. R. 22 cal. 131 (1894) was decided with reference to the Bengal Municipal Act (III of 1884) and though there are some observations in the judgment of the Court at pp. 138-139 which may favour Mr. Roy's contention, we do not think the case is an authority for the broad proposition that a special penal provision as in the Railways Act would always exclude the operation of the Indian Penal Code. 9. The utmost that can be said is, that it is ordinarily desirable that when an act or omission is made penal by two Acts, one general and other special, the sentence should be passed under the Special Act. Such a view would not militate against either the rule of interpretation prescribed in sec. 26 of the General Clauses Act or the rule laid down in Rex v. Davis 1 Leach Cr. C. 271 (1783). We are, however, of opinion that the sentence of two months' simple imprisonment is too severe in the circumstances of the case. Even if conviction were had under sec. 26 of the General Clauses Act or the rule laid down in Rex v. Davis 1 Leach Cr. C. 271 (1783). We are, however, of opinion that the sentence of two months' simple imprisonment is too severe in the circumstances of the case. Even if conviction were had under sec. 417, I. P. C, we would reduce the sentence to one of fine only, and a fine of Rs. 100 is, in our opinion, sufficient. It is not, therefore, necessary for us to discuss further the question of the repeal by implication of sec. 417, I. P. C. We leave it with an expression of the present indications of our mind. Whether the accused be convicted under sec. 417, I. P. C, or sec. 112 of the Indian Railways Act, the result, in the present case, is the same. We affirm the conviction but reduce the sentence and direct that the accused do pay as fine Rs. 100, and in default he do undergo simple imprisonment for two months.