1. This is a criminal reference by the Sessions Judge of Aligarh recommending that the conviction of the accused under Section 279, I.P.C., be altered into one under Section 16, Motor Vehicles Act, and the fine be reduced from Rs. 200 to Rs. 100.
2. The applicant was driving his motor lorry in a wrong direction keeping to the right side of the road. From the opposite direction Lt. Col. Pengelley was coming in his car and he very properly kept to the left side of the road. He blew his horn then at a distance of 40 yards, but the accused Jewa Ram did not turn back to the left side of the road but moved on compelling the complainant to leave the road and move on to its left side. Even then he did not escape safely, but his car was hit at right angles and was dashed against a tree and was smashed. The complainant received a few bruises also. The Magistrate found that although the accused applied his brakes he could not, in spite of his afforts avoid the accident. This implied that he was going at a fast speed and through a dusty atmosphere when the visibility was not good. He distinctly found that Jewa Ram's negligence and failure to observe the rule of the road were responsible for the collision.
3. As the case was tried summarily there was no appeal, but the accused filed a revision before the Sessions Judge. The learned Sessions Judge did not of course overrule these findings, but considered that the conviction under Section 279, I.P.C., was illegal. Ha relied on the case of In re Mohanlal Saxena v. Emperor A.I.R. 1930 Oudh 497, and concluded that where there is a special law making a particular act an offence and providing penalties, the general law is inapplicable. He has accordingly referred this case to the High Court because he considers that the conviction under the general law is illegal.
4. It is not necessary for me to express any opinion on the decision in the Oudh case because in that case the question considered was whether a person could be convicted of abetment under Section 117, I.P.C. when the offence also fell under Section 9, Salt Act, 1882. I may however remark that that case has not been followed by a Bench of this Court in Joti Prasad Gupta v. Emperor : AIR1932All18 , and has also been doubted by the Bombay High Court in Emperor v. Ganesh Vaman Joshi : AIR1931Bom140 .
5. I am only concerned with the observation made by the learned Judges of the Oudh Chief Court on which reliance has been placed by the learned Sessions Judge. With great respect, I am unable to hold that it cannot be laid down as a general rule of law that where there is special law making a particular act an offence and providing penalties for such an offence, the general law must be held to be inapplicable. It is possible that the same act may be an offence under two different Acts and both may be applicable simultaneously, and the offender may be prosecuted and convicted under either Act. It may however be conceded that where the offence falls strictly within the provisions of a section of a special Act and does not go beyond it it would be more appropriate to prosecute the offender and convict him under that special Act, rather than fall back upon a more general law which prescribes a heavier penalty. In such a case it may be assumed that the legislature in prescribing the smaller penalty has considered recourse to the special law as the proper course.
6. The fault of the accused in the present case did not lie merely in not observing the rule of the road by driving the lorry on the right side of it. If he had done nothing worse than that, I would have felt inclined to alter his conviction as recommended by the Sessions Judge. But on the finding of the Magistrate he was negligent in continuing to drive on the wrong side of the road in spite of due warning and in going fast. The case undoubtedly fell within the scope of Section 279, I.P.C.
7. Section 16, Motor Vehicles Act, has not any necessary ingredient of rashness for negligence in it Rule 27, Motor Act rules, merely lays down the rule of the road, and a breach of it need not necessarily involve rashness or negligence. When the ingredient of negligence entered into the offense, the conviction under Section 279, I.P.C., was not only proper but more appropriate.
8. I accordingly decline to interfere. Let the papers be returned.