John Beaumont, Kt., C.J.
1. This is an application in revision by the accused asking us to set aside his conviction by the Second Glass Magistrate of Vengurla under Section 6 of the Motor Vechicles Act, VIII of 1914.
2. The facts are that the accused is the owner of a motor car and his driver has a license to drive within the Savantwadi State. On April 30, the driver drove the car beyond the limits of that State in British India and he was charged, therefore, under Section 6 of the Motor Vehicles Act with driving the car beyond the limits of the license. The driver was convicted and no question arises as to his conviction. The present accused as the owner was also convicted under the provision of Section 6 that no owner of a motor vehicle shall allow any person who is not so licensed to drive the car,
3. There is no evidence that the accused knew that his driver was going to take the car beyond the limits of the Savantwadi State or that he in any way authorised that act. The learned District Magistrate in the lower appellate Court holds that the accused is liable because he says that the word ' allow ' in Section 6 of the Act' means ' did not prevent '. That is certainly not the ordinary meaning of the word ' allow.' Nobody, for instance, would say that a man had 'allowed' his wife to commit adultery merely because he had not prevented that occurence, and I see no reason for supposing that the word ' allow' is used in this Act in any but its ordinary sense. The word is used not only in Section 6, but also in Section 7, which provides that the holder of a license shall not allow it to be used by any other person. I should say that if a license was stolen by a thief and improperly used by him, it could not be said that the holder of the license had allowed it to be used by the thief, although he had not prevented it being so used. I think that the word ' allow' ordinarily involves permission express or implied, and that it is used in that sense is Section 6 of this Act, Evidence of express permission to use a car beyond the terms of the license would no doubt generally be lacking. But permission may be implied from the facts. In the present case there is, however, no evidence at all from which, as it seems to me, we can infer any sort of permission, because there is no evidence that the car had ever been used in this way before, and there is no evidence that the accused knew that it was going to be used in this way on the present occasion.
4. We have been referred to a considerable number of authorities. I think for the most part they turn on what amounts to an implied permission, and deal merely with the circumstances from which it might be inferred that the owner had permitted the wrongful use of the car. So far as the general law is concerned, I agree with the conclusion of the Calcutta High Court in the case of Varaj Lall v. Emperor (1924) I.L.R. 51 Cal. 948 expressed (at p. 952) in these words:-
The principle I should adduce from the cases Is that, where a particular intent or state of mind is not of the essence of an offence, a master can be made criminally liable for the acts of his servant, acts expressly prohibited but not otherwise, if the Act provides for liability for permitting and causing a certain thing unless it can be shown that the act was done with the master's knowledge and assent, express and implied.
5. Here the Act does not provide that no car shall be used except in accordance with the terms of the license. If that were the obligation imposed, then the master would be liable for any breach of that obligation, and the burden would be placed upon him of seeing that the car was never used except in accordance with the license. But that is not what the section says; the words used merely require that the owner shall not allow the car to be used by a person without a license, and I think that the prosecution must show either express permission or facts from which the Court can properly infer an implied permission, There being no such evidence, I think that the conviction must be set aside and the fine if paid refunded.
6. It would appear from the judgment of the trial Magistrate in this case that in his opinion the car belonging to the accused was driven beyond the limits of the Savantwadi State with his consent. No doubt he says at the commencement of his judgment:-
The prosecution witnesses have not been examined, as there were no witnesses amongst them deposing to the accused's having consented to the driver Gopinath's taking the car beyond the state jurisdiction.
7. But he then proceeds to discuss certain evidence produced by the defence, and in conclusion he says :-
Thus the circumstantial evidence is wholly in favour of the prosecution while the defence had no evidence at all.
8. If it were a fact that the accused, the owner of the car, had consented, then obviously there would have been a contravention of the provisions of Section 6 of the Act and the conviction would have been correct But as a matter of fact there is no evidence at all from which it can fairly be inferred that the accused consented to the act of his driver or indeed had any knowledge of it, and that being so, the decision of the case depends entirely on the construction of the words ' no owner shall allow' in Section 6 of the Act.
9. The learned Government Pleader has contended that the Act throws an absolute duty upon the owner of the car to prevent the commission of any offence against the Act. He argues in effect that the words ' no owner shall allow' in this section are equivalent to ' every owner shall prevent,' That, I think, is obviously going too far. It is clear that that interpretation would lead to absurd results, and the authorities relied on by Mr. Parulakar for the applicant, Varaj Lall v. Emperor I.L.R. (1924) Cal. 948 and Indra Mohan Boy v. Emperor (1927) 47 C.L.J. 460 are clearly against it.
10. In the case of Grown Prosecutor v. Khadir Mohideen I.L.R. (1927) Mad. 187 the owner of a motor omnibus was prosecuted for allowing his driver to drive it without a license in contravention of Section 6 of the Act. The licence had expired and the accused pleaded that the expiry was without his knowledge. He was acquitted in the trial Court, but, on appeal, the acquittal was set aside and Mr. Justice Jackson said that a man cannot entrust his car to another person and plead that he presumed that he was licensed. He must assure himself that he is licensed. With respect I agree with that decision, and, I think, it shows that it would also be going too far to say that the word ' allow ' in the section necessarily means 'knowingly permit' or 'sanction,' But, in my opinion, a man may fairly be said to allow a thing to be done if the matter is within his control and the doing of the thing could be prevented by the exercise of ordinary care and prudence. The conviction in Grown Prosecutor v. Khadir Mohideen could be justified on that ground. On the other hand, the owner of the motor omnibus in that case could not have been convicted if his driver had a license himself but allowed another person to drive who had not a license, because in that case it could not be said that the matter was within the control of the owner and could have been prevented by ordinary care. In the present case, so far as the facts can be ascertained from the record, it is impossible to say that the matter was in the control of the accused at all. That being so, it cannot be said that he allowed his driver to drive the car within the limits of British India, and I agree with the learned Chief Justice that the application should be allowed and the conviction set aside.