1. This revision arises out of a reference made by the Sessions Judge, Nagpur, under Section 438 of the Code of Criminal Procedure.
2. Vasant son of Baburao and Baburao son of Mayaram driver and conductor of bus No. M.P.B. 411 belonging to the C.P.T.S. were prosecuted under Section 123 read with Section 42 and rule 79 (viii) of the Motor Vehicles Act. The charge against them was that they should have carried 35 passengers as per permit, but they actually carried 53 adults and one passenger below 12 years of age.
They pleaded guilty and were in a summary trial convicted under Section 123 (1) of the Motor Vehicles Act read with the Section 42 (1) ibid and Rule 79 (viii) of the Rules framed under it. They were fined Rs. 100/- each, or in default to suffer simple imprisonment for 45 days. It was admitted by the non-applicants Vasant and Baburao that the bus had an authorized seating accommodation of 35 passengers and they were carrying 53 1/2 passengers in the bus at the material time.
3. The Sessions Judge has recommended that the conviction of the applicants under the above sections be set aside as Section 42 (1) of the Motor Vehicles Act refers only to the owner and not to the drivers or conductors.
4. Section 42 (1) of the Motor Vehicles Act is as follows:
No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used....The penalty for contravening the provisions of Section 42 (1) is provided by Section 123 (1) ibid. This section also refers only to the owner. It has been pointed out in Jagroop v. Rex, that : AIR1953All276 under Section 42 (1) it is the owner and nobody else, such as the driver or conductor, who is forbidden to use or permit the use of a vehicle, save in accordance with the conditions of the permit and consequently if a transport vehicle is used against the conditions of the permit, only the owner and nobody else can be guilty of contravening this provision.
Hence the driver and the conductor could not be convicted for carrying passengers in excess of the authorized seating accommodation under the permit. The conviction of the driver Vasant and the conductor Baburao under Section 42(1) read with Section 123(1) of the Motor Vehicles Act was illegal and is set aside,
5. They can be convicted for the breach of the Rule 79(viii) of the Rules framed under the Motor Vehicles Act. This rule enjoins upon the driver and the conductor not to allow any person to be carried in any public service Vehicle in excess of the specified capacity. A breach of this rule is punishable under Section 112 of the Motor Vehicles Act, which for the first offence provides a maximum fine of Rs. 20/-. The conviction of the applicants is therefore altered to one under Section 112 of the Motor Vehicles Act read with Rule 79 (viii) of the Rules framed under the Act, They are fined Rs. 20/- each; in default of payment of fine they shall undergo simple imprisonment for 15 days.
6. The reference made by the Sessions Judge is accepted. Balance of the fine be refunded to the accused.