Lawrence Jenkins, K.C.I.E., C.J.
1. The accused has been convicted under Section 279 of the Indian Penal Code of rashly and negligently driving a motorcar on a public road so as to endanger human life, and he has been sentenced to suffer one day's simple imprisonment and to pay a fine of Rs. 200 or in default to suffer 15 days' simple imprisonment, his license also has been suspended and he has been declared disqualified from obtaining a license to drive a motor vehicle.
2. The sentence passed by the Magistrate falls short of that which would have entitled the accused to appeal, and so this application is made to us in revision.
3. But in an application for revision it is the ordinary rule to accept the lower Court's findings of fact, and so Mr. Lowndes has limited his arguments to asking for a revision of the sentence on the ground that the punishment is excessive, and that this is due to the Magistrate's having allowed himself to be influenced by considerations, for which there was no legal foundation.
4. The charges framed in the case are under Sections 279 and 336 of the Indian Penal Code and Section 2 of the Bombay Motor-Vehicles Act 1904.
5. The last named Act is described as ' an Act to regulate the use of motor-vehicles in the Bombay Presidency ' and the preamble recites that ' it is expedient to regulate the use of motor-vehicles in the Bombay Presidency' and for that reason it is expressed to be enacted as therein provided.
6. It is not disputed that the offence with which the accused is charged falls within the terms of this Act, but the charges under the section of the Penal Code were included because, we are told, that is in accordance with the course ordinarily adopted in these cases. The legal result is that a heavier punishment can be inflicted than if the charge were only under the Motor-Vehicle Act. The punishment of one day's simple imprisonment is a sentence that is well known. Its purpose is to exercise clemency towards an accused, and so it is ordinarily passed where imprisonment is the only punishment allowed by law, and the Court sees in the circumstances of the case grounds for passing the lightest possible sentence. In practice the person on whom it is passed is not placed in prison, but is to all intents and purposes as free as though the sentence had not been passed.
7. Here no such necessity for this sentence arose. It was not passed to secure compliance with the law for another punishment is sanctioned and has been inflicted. It cannot be attributed to clemency and its consequence is to place on the accused the stigma that attaches to sentence of imprisonment without imposing the penalty which is the purpose of imprisonment.
8. This is not the first occasion on which that the High Court has had to comment on this form of punishment, when wrested from its proper purpose, and the Advocate General has most fairly stated before us that he finds a difficulty in defending this part of the sentence in the circumstances of the case.
9. We, therefore, direct that this part of the sentence be set aside.
10. Next I come to the fine. Though it is urged that this is double the maximum prescribed by the Motor-Vehicle Act, it still is within the limits permitted by Section 279 of the Indian Penal Code and I cannot say it is so severe as to call for our interference in revision. So much for the punishments under the Penal Code.
11. I will now deal with those expressed to be passed under the Bombay Motor-Vehiele Act.
12. The Magistrate has purported, to incapacitate the accused from ever driving a Motor-Vehicle in Bombay during the rest of his life, and he appears to rest this part of his sentence on what is stated in the passage of his judgment, in which he says : ' It is a wonder that this is the first appearance of the accused in Court. It is impossible to conceive that this was the first occasion on which the accused was unfortunate enough to drive so rashly and negligently.'
13. It is admitted that there is nothing on the record to justify this remark ; there is no legal evidence of any previous conviction or charge, or even of previous rash or negligent driving by the accused and it is on legal evidence alone that a Court of law can act. Therefore it is that Mr. Lowndes has taken strong exception to this expression of opinion and protested against the Magistrate's making it the basis on which he has determined the character of the punishment to be inflicted. At the same time we are told that of the accused's conduct immediately after the offence no complaint is made; that he made no attempt to escape detection by driving away from the scene, but on the contrary had the injured person taken to the hospital and immediately reported the matter to the police.
14. But so far as the sentence involves perpetual disqualification these matters need not be considered, for this part of the sentence is illegal. This is admitted by the prosecution, and the Magistrate himself has very properly made a representation to the High Court to that effect and has requested an annulment of the order.
15. The sentence of disqualification after the period of suspension must be set aside.
16. It only remains for me to consider the order for suspension of the accused's license. This license was taken out last January so the Magistrate's order of suspension would prevent the accused from following his present calling for about nine months, and as a reason for moderating this sentence Mr. Lowndes has told us that the accused has already lost through this suspension an opportunity of lucrative employment, and if the sentence be upheld that he will lose his present place. On this point as throughout the argument the prosecution has been conducted before us with great fairness and moderation. It is stated that the Police did not press for a severe sentence before the Magistrate, nor is it now asked that the suspension should be continued for the whole period prescribed by the Magistrate's order. At the same time it is contended that there should be some suspension of the license. This I think is reasonable, for where there has been rash and negligent driving on a public road endangering human life, and on the Magistrate's finding we must assume the accused to be guilty of that offence-some suspension of license is an appropriate penalty, Having regard to all the circumstances, I think the requirements of the case will be met if we reduce the period of suspension to three calendar months from the 20th of March 1906 the date of the Magistrate's order.
1. Mr. Lowndes, who appeared for the accused, has not contended that the facts taken to be proved by the Third Presidency Magistate, are insufficient to establish an offence of negligently driving a motor-vehicle at a speed or in a manner which, having regard to all the circumstances of the case was dangerous to the public, but his main argument as to this part of the case was that taking all the facts to be as decided by the Magistrate, a conviction under Section 2 of the Bombay Motor-Vehicles Act (Bombay Act II of 1904) under which, as well as under Section 279 of the Indian Penal Code, the accused was prosecuted, would be more appropriate than a conviction under the Penal Code.
2. Our attention was drawn to the observations near the end of Mr. Karsondas' judgment and we were asked to infer from these observations, for which the record affords no support, that by permitting himself to display this hostile attitude to the accused, the Magistrate has given cause for consideration whether in resorting to the Penal Code in addition to the Motor-Vehicles' Act in order to inflict the larger fine of Rs. 200 (the maximum unappealable sentence of fine) and to add a sentence of imprisonment the Magistrate was influenced by an unjudicial antipathy rather than by a calm and impartial view of the merits of the case. The impropriety of the Magistrate's concluding remarks is obvious.
3. There is moreover force, I think, in the contention that where there has been special legislature for a particular type of offence the maximum punishment provided in such spe. cial Act for that particular offence may be accepted as an appropriate maximum.
4. On the other hand though the punishment for rash or negligent driving to the public danger provided by Section 279 of the Indian Penal Code is greater, the more general provisions of the Penal Code are calculated to remind a Magistrate, when the prosecution is under that Code, and the danger is alleged to hare been caused by rash or negligent driving, that it is not only on the part of the drivers of vehicles that the Penal Code enforces the civil duty of circumspection from the neglect of which the improbability of culpable negligence arises (See Nidamarti's case (1872) 7 M.H.C.R. 119 and Empress v. Ketabdi Mundul ILR (1879) Cal. 764 ' negligence ' implying an omission to do something a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. See Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 784 Section 283, for instance, enacts that whoever causes danger, obstruction or injury to any person in any public way by doing any act, shall be punished with fine, and Section 336, which has no special reference to drivers, provides that whoever does any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment or fine. So that a driver prosecuted under both a special Act and the Penal Code cannot well complain that he has been convicted under the latter which takes so fully into contemplation that a danger on a public way may be created by an obstructive rash or negligent act of some person not driving a vehicle, without any want of due care and caution on the part of any driver of a vehicle.
5. Again the learned Advocate General was instructed to state that the prosecution was instituted by the Police under the Penal Code as well as under the Bombay Motor Vehicles Act II of 1904 with a purpose and not from excessive caution.
6. These considerations point to the conclusion that there is not sufficient ground for altering the conviction to one under Section 2 of the. Bombay Motor Vehicles Act.
7. On the remaining points in the case I have nothing to add to the remarks of the learned Chief Justice except to express my entire concurrence with the judgment just delivered and the orders proposed.