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Sher Khan and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Criminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Ref. No. 233 of 1955
Judge
Reported inAIR1958All733
ActsMotor Vehicles Act, 1939 - Sections 42, 42(1) and 123(1); ;Motor Vehicles (Amendment) Act, 1956; ;Code of Civil Procedure (CPC) , 1908
AppellantSher Khan and anr.
RespondentState
Appellant AdvocateS.N. Misra, Adv.
Respondent AdvocateAsst. Govt. Adv.
Excerpt:
motor vehicles - applicability - sections 42(1) and 123(1) of motor vehicles act, 1939 - for contravention of section 42(1) only the owner of transport vehicle shall fall under the provision of section 123(1) - those who are not owners fall outside the scope. - - 100 of 1956) is not a well drafted section and accordingly presents difficulties in construction. betts,1928 ac 143 (c) :i think it is clearly established in attorney general v. 22. section 123 (1) of the motor vehicles act has since been amended, but on the date on which sher khan was alleged to have committed theoffence it stood like this :whoever drives a motor vehicle or causes or allows a motor vehicle for use in contravention of the provisions of sub-section (1) of section 42 shall be punishable for a first offence with.....o.h. mootham, c.j. 1. i have had the advantage of reading the judgment prepared by srivastava, j., and i agree, for the reasons given by him, that the case of bansraj v. state : air1956all27 , vras rightly decided and that the question referred to this bench should be answered in the manner which he proposes. the view taken in bansraj v. state (a), has not been accepted by other high courts, but i venture to think, with all respect, that in none of the cases in which that decision has been considered has any logical answer been given to the reasoning upon which that decision is founded.2. section 123 of the motor vehicles act (as it stood prior to its amendment by act no. 100 of 1956) is not a well drafted section and accordingly presents difficulties in construction. i think however.....
Judgment:

O.H. Mootham, C.J.

1. I have had the advantage of reading the judgment prepared by Srivastava, J., and I agree, for the reasons given by him, that the case of Bansraj v. State : AIR1956All27 , vras rightly decided and that the question referred to this Bench should be answered in the manner which he proposes. The view taken in Bansraj v. State (A), has not been accepted by other High Courts, but I venture to think, with all respect, that in none of the cases in which that decision has been considered has any logical answer been given to the reasoning upon which that decision is founded.

2. Section 123 of the Motor Vehicles Act (as it stood prior to its amendment by Act No. 100 of 1956) is not a well drafted section and accordingly presents difficulties in construction. I think however that, properly construed, it can have only the meaning which found favour in Bansraj v. State (A). If however (as has been suggested) the section is ambiguous --I do not think it is -- then in my opinion the Court is entitled to look at the later legislation on the subject to see if light is thrown upon its meaning. The law on this point was thus stated byLord Sterndale, M. R., in Cape Brandy Syndicate v. Inland Revenue Commissioners, (1921) 2KB 403 (B), in a passage cited with approval by Lord Buckmaster in Ormond Investment Co. v. Betts,1928 AC 143 (C) :

'I think it is clearly established in Attorney General v. Clarkson, (1900) 1 QB 156 (D), that subsequent legislation on the same subject may be looked to in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, it it proceeds upon an erroneous construction of previous legislation, cannot alter that previous legislation : but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.'

Now, Section 123 (1) after its amendment by the Motor Vehicles (Amendment) Act, 1956, reads thus :

'(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for a first offence with fine which may extend to one thousand rupees and for a subsequent offence if committed within three years of the commission of a previous similar offence, with imprisonment which may extend to six months or with fine which may extend to two thousand rupees, or with both :

Provided that no court shall, except for reasonsto be stated in writing, impose a fine of less thanfive hundred rupees for any such subsequentoffence.'

It will be observed that under the amended section the driving of a motor vehicle or the causingor allowing of a motor vehicle to be used in contravention of any condition of the permit relating tothat vehicle is now an offence punishable underthis section only if the condition relates to the routeon which or the area in which or the purpose forwhich the vehicle may be used.

The driver of a motor vehicle which carried more passengers than is allowed by the permit commits no offence under this section; he can be punished only under Section 112. This section would therefore appear to be parliamentary affirmation, to use the words of Lord Evershed, M.R,, in In re Westby's Settlement. 1950 Ch 296 at p. 303 (E), of the view taken by this Court.

Raghubar Dayal, J.

3. Sher Khan, driver of a public service vehicle, was convicted under Section 123 read with Section 42 of the Motor Vehicles Act 1939 for carrying passengers in excess of the number permitted by Clause (viii) of rule 79 of the U. P. Motor Vehicles Rules, 1940. The Sessions Judge Varanasi referred the case to this Court recommending the alteration of Sher Khan's conviction from an offence under Section 123 to one under Section 112 of the Motor Vehicles Act in view of the decision in the case of Jagrup v. State : AIR1952All276 , to the effect that only the owner of a transport vehicle could be convicted of the offence under Section 123 of the Act as he alone could contravene Sub-section (1) of Section 42 of the Act. This view was confirmed by a Division Bench in the case of : AIR1956All27 . It however did not find favour with the other High Courts.

4. This reference came up for decision before Mr. Justice Chowdhry who did not agree with the view expressed in Bansraj's case (A), and, in viewof the consensus of opinion in favour of his view, referred the following question to the Full Bench for decision :

'Can only the owner of transport vehicle, and neither the driver of the vehicle nor anybody else, contravene the provisions of Section 42 (1) of the Indian Motor Vehicles Act (IV of 1939) and is only the owner, and neither the driver nor anybody else, liable to punishment for that contravention under Section 123 (1) of that Act?'

5. This question does not really cover the point for decision in the reference. The real question for decision however, is whether any person other than the owner of a transport vehicle can commit an offence punishable under Section 123 (1) of the Act.

6. The relevant portion of Sub-section (1) of Section 42 of the Act is :

''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 State Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used :--

7. Section 123 (1) of the Act, as it stood at the time of the alleged commission of the offence by the applicant, reads thus :--

'Whoever drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in contravention of the provisions of Sub-section (1) of Section 42 shall be punishable for a first offence with fine which may extend to five hundred rupees, and for a subsequent offence if committed within three years of the commission of a previous similar offence with a fine which shall not be less than one hundred rupees and may extend to one thousand rupees.'

8. Section 123 (1) of the Act refers to the driving or the use of a motor vehicle and not only to that of a transport vehicle alone. The expression 'motor vehicle' is wider in import than the expression 'transport vehicle.' 'Motor vehicle' is defined in Clause (18) of Section 2 of the Act thus :

'Motor vehicle' means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adopted for use only in a factory or in any other enclosed premises.' 'Transport vehicle' is defined in Clause (33) of Section 2 of the Act thus :

'Transport vehicle' means a public service vehicle or a goods vehicle.'

'Goods vehicle' is defined in Clause (8) of Section 2 of the Act thus :

'Goods vehicle' means any motor vehicle constructed or adopted for use for the carriage of goods, or any motor vehicle not so constructed or adopted when used for the carriage of goods solely or in addition to passengers.' 'Public service vehicle' is defined in Clause (25) of Section 2 of the Act thus :t

'Public service vehicle' means any motor vehicle used or adopted to be used for the carriage of passengers for hire or rewards, and includes a motor car, contract carriage, and stage carriage.'

9. Secondly, the persons who can commit an offence under Section 123 (1) of the Act can be all those persons including the owner of a vehicle who do any of the things mentioned in this sub-section. The word 'whoever' would cover every person doing an act mentioned in this sub-section and doesnot by itself refer only to the owner of a motor vehicle. Both these considerations make Section 123 (1) of the Act include within its scope persons and vehicles which would not be covered by Section 42 (1) of the Act. I do not think that there can be any dispute about this.

10. The driving or the use of a vehicle that is considered to be culpable in Section 123 (1) is the driving or the use in contravention of the provisions of Sub-section (1) of Section 42 of the Act.

11. The question for determination then resolves itself into the interpretation of the expression 'in contravention of the provisions of Sub-section (1) of Section 42.' It appears to me that in the cases of Jagrup (F) and Bansraj (A), this expression has been taken to be synonymous with contravening the provisions of Sub-section (1) of Section 42. I do not consider them to be synonymous.

12. What constitutes the contravention of the provisions of Sub-section (1) of Section 42 is however a different matter from the question as to who contravenes that section. The contravention of the provisions of this section takes place when a transport vehicle is used or permitted to be used in any public place in any manner which is not in accordance with the conditions of the permit granted authorising the use of the vehicle in that place.

Such contravention can take place irrespective of the fact whether a transport vehicle is used by the owner or is permitted to be used by the owner or whether the vehicle is actually used by any other person. A person who uses a transport vehicle not in accordance with the conditions of the permit would be using it in contravention of the provisions of Section 42 (1) of the Act.

13 The provisions of Section 42 (1) of the Act can be said to be :

(i) that a transport vehicle is to be used in any public place in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used; and

(ii) that no owner of such a vehicle shall use or permit its use otherwise.

14. Whenever anything takes place which is against these provisions, that would amount to the contravention of the provisions of the said section, The provisions of the section are contravened when the owner of a transport vehicle acts contrary to what the section requires him to act. They are contravened when any one uses the vehicle in a manner against the conditions of the permit. The contravention, I am of opinion, is of the provision which the doer has to observe and the contravener is always the doer who happens to act against the requirements of the provision.

15. If the owner himself drives the vehicle or causes or allows it to be used or lets it out for use, he will be as much guilty under Section 123 (1) of the Act as any other person doing any of these acts,

16. The other interpretation sought to be put on Section 123 (1) restricts its scope to the owner of a transport vehicle alone in spite of the most general language of this section both with respect to the type of vehicle and the persons. If that was the intention of the legislature, that could have been very easily expressed by substituting the expression 'whoever contravenes the provisions of Sub-section (1) of Section 42' for the expression

'whoever drives a transport vehicle or causes or allows a transport vehicle to be used or lets out a transport vehicle for use in contravention of the provisions of Sub-section (1) of Section 42.'

17. Further, I do not find any similar penal, provision for drivers or persons using a motor vehicle other than a transport vehicle in contravention of the conditions of a permit. Of course, their case would be covered by the provisions of section. 112 of the Act which constitute a milder offence. I do not consider that there could have been any particular reason for the legislature to make such. a distinction. It used language which could comprise within its scope all types of motor vehicles and all kinds of persons and which language did not. restrict itself merely to transport vehicles or to the owners of those vehicles.

18. It is significant to notice that the various-sections in Chapter IX of the Act dealing with offences, penalties and procedure are expressed in different forms. Section 112 makes a person punishable for his contravening any provision of the Act or of any rule made thereunder if no other penalty is provided for the offence. Section 115 makes a person punishable for doing something in contravention of Section 71 which enjoins that no person shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any Public place-at a speed exceeding the maximum speed fixed for the vehicle.

Section 122 makes one punishable for selling or delivering a motor vehicle in such condition that the use thereof in a public place would be in contravention of Chapter V or any rule made thereunder. Chapter V consists of two Sections 69 and 70. Section 69 provides that a motor vehicle shall be so constructed and so maintained as to be under the effective control of the person driving the vehicle, and Section 70 empowers the State Government to make rules regulating the construction, equipment and maintenance of motor vehicles and trailers.

Surely the expression 'in contravention of Chapter V' would not mean contravening the provisions of Chapter V, and if that were the meaning it would be only the person making the vehicle or maintaining it who could contravene Chapter V. Section 122 however in specific terms makes an importer of or a dealer in motor vehicles punishable if he sells or delivers a motor vehicle in such condition that the use thereof in a public place would be in contravention of Chapter V or any rule made thereunder.

Sections 123, 124 and 125 make persons doing certain things in contravention of the provisions of certain sections punishable. Other sections, namely 113, 114, 116, 117, 118, 120 and 121, make person, punishable for something 'which they do. The legislature must have meant differently by using different expressions in various sections.

19. I am therefore of opinion that a person other than the owner of a transport vehicle can be guilty of the offence under Section 123 (1) of the Act if he drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in a public place in a manner not in accordance with the conditions of the permit granted or countersigned by a Regional or State Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.

This view finds support from the cases of Public Prosecutor v. Jevan, AIR 1941 Mad 845 (G), Provincial Government, C. P. and Berar v. Mohan-lal Kesholal, AIR 1944 Nag 89 (H), Teia Singh v The State , The State v. Moti-lal , Mohammad Tab'1 v. The State : AIR1956All400 , Chandra Deo Singh v. The State, 59 Gal WN 787 (L) and Uma Shanker Tewary v. Rex : AIR1950All234 . I wouldsend this answer to the court concerned for the decision of the revision.

A.P. Srivastava, J.

20. The question which has been referred for decision to this Full Bench is :

'Can only the owner of transport vehicle, and . neither the driver of the vehicles nor anybody else. contravene the provisions of Section 42 (1) of the Indian Motor Vehicles Act (IV of 1939), and is only the owner, and neither the driver nor anybody else, liable to punishment for that contravention under Section 123 (1) of that Act?'

21. Sher Khan was the driver of a public service vehicle and used to ply his vehicle in the district of Varanasi. The maximum seating capacity of the vehicle was specified in its certificate of re-gistration and in the permit that had been issued by the authorities for plying it. Sher Khan was found to be carrying more passengers than the vehicle was permitted to carry. He was thereupon prosecuted and convicted under Section 123 readwith Section 42 of the Motor Vehicles Act.

He questioned his conviction before the Sessions Judge of Varanasi on the ground that section123 of the Motor Vehicles Act was not applicableto his case and he could not be convicted under that provision. This contention found favour withthe learned Sessions Judge and he made a reference to this Court under Section 438 of the Criminal Procedure Code recommending that the conviction of Sher Khan be altered from one under Section 123 of the Motor Vehicles Act to one under section 112 of that Act.

He rested this recommendation on the decision of this Court in the case of : AIR1952All276 . which decision has subsequently been confirmed by a Division Bench of this Court in : AIR1956All27 . The reference came up for decision before Mr. Justice Chowdhry. He found that the decisions of this court on the question were conflicting and that the case of Bansraj needed reconsideration. He therefore formulated the question mentioned above which the Hon'ble the Chief Justice directed to be laid before this Full Bench.

22. Section 123 (1) of the Motor Vehicles Act has since been amended, but on the date on which Sher Khan was alleged to have committed theoffence it stood like this :

'Whoever drives a motor vehicle or causes or allows a motor vehicle for use in contravention of the provisions of Sub-section (1) of Section 42 shall be punishable for a first offence with fine which may extend to five hundred rupees, and for a subsequent offence if committed within three years of the commission of a previous similar offence with a fine which shall not be less than one hundred rupees and may extend to one thousand rupees.'

23. Before Sher Khan could be convicted under this provision it was to be established that he had

(a) driven a motor vehicle in contravention ofthe provisions of Sub-section (1) of Section 42, or

(b) allowed a motor vehicle to be used in contravention of Sub-section (1) of Sectioin 42, or

(c) caused a motor vehicle to be used in contravention of the provisions of Sub-section (1) of Section 42, or

(d) let out a motor vehicle in contravention of the provisions of Sub-section (1) of Section 42.

24. In this case it being conceded that at thetime of the alleged occurrence Sher Khan was driving the motor vehicle, the only question which was to be decided was whether he was doing it incontravention of the provisions of Sub-section (1) ofSection 42.

25. The relevant portion of Sub-section (1) of Section 42 reads thus :

'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 State Transport Authority authorising the use of the vehicle in that plaee in the manner in which the vehicle is being used.

26. A careful analysis of this provision will show :

(1) that it is not a punishing section and does not create any offence,

(2) that it does not contain any general prohibition applicable to every one,

(3) that it imposes a responsibility only on owners of transport vehicles and not on any body else, and

(4) that the only prohibition which it imposes on owners of transport vehicles is that they should not

(i) use or permit the use of such vehicles;

(ii) in a public place; and

(iii) in a particular manner except in accordance with the conditions of a permit granted or countersigned by the appropriate authorities for use of that vehicle in that place and in that manner.

27. The contention which was raised on behalf of Sher Khan was that as Sub-section (1) of Section 42 imposed a prohibition and laid the responsibility on the owner of a transport vehicle only and that too only in connection with the use of his vehicle in a public place, in a particular manner, it was the owner alone who could act in contravention of the provisions of the sub-section.

No one else could do that. Even the owner could not be held to have contravened the Sub-section if he for instance used or permitted the use of his vehicle in a private place or in a manner which was in consonance with the conditions of his permit. If however the owner himself drove the motor vehicle, or caused, or allowed it to be used or let it out for use in a public place in a manner not sanctioned by the conditions of his permit he would be contravening the provisions of the sub-section and would therefore be liable to be convicted under Section 123 (1) . As Sub-section (1) of Section 42 did not apply to a driver or conductor or a manager or any person who was not an owner of a motor vehicle, such persons cannot contravene the provisions of the section and cannot therefore be brought within the ambit of Section 123 (1) of the Act.

On the face of it this contention appears to be logical and unanswerable and appealed to Desai, J. when he was sitting singly in AIR 1956 All 276 (F), and Upadhya J., when he was sitting along with Desai, J. and was dealing with the case of : AIR1956All27 .

28. On behalf of the State it is pointed out that the above interpretation of Section 42 (1) and Section 123 (1) of the Motor Vehicles Act was an unduly narrow one and should not be accepted because

(i) Section 123 (1) is in terms wider than Section 42 (1) and the opening words 'whoever drives' in the former section show clearly that the intention of the Legislature was to bring the non-owners of transport vehicles also within the scope of the section. The term 'motor vehicle' is wider than the term 'transport vehicle' (compare the definition of the term 'motor vehicle' in Clause (18) of Section 2 of the Act with the definition of the term 'transport vehicle' as given in Clause (33) of the section, along with the definition of 'goods vehicles' inClause (3) and the term 'public service vehicle' in Clause (25) of the section. The fact that the formerterm is used in Section 123 and the latter is used insection 42 also shows that Section 123 (i) is wider than Section 42 (I).

(ii) The expression 'for contravention of the provisions of Sub-section (i) of Section 42' as used in Section 123 (1) is not a synonym for 'contravening theprovisions of Sub-section (1) of Section 42.' The purpose of Section 42 (1) appears to be to secure that transport vehicles are used in public places in accordance with the terms of permits granted for theiruse. If anything is done by anybody contrary to that purpose he must be held to contravene theprovisions of Section 42 (1) and whoever he may be, whether an owner or a non-owner, he will be liable to be convicted under Section 123 (1) of the Act.

(iii) Permits containing conditions are issued in respect of all motor vehicles and not only in respect of transport vehicles. Section 42 (1) appliesonly to transport vehicles. If Section 123 (1) is interpreted to apply to owners of transport vehicles onlythere appears to be no provision under the Act for punishing with similar severity owners, drivers or other persons using motor vehicles other than the transport vehicles in contravention of the conditionsof their permits. Why should the legislature have made a distinction in this respect between the owners of transport vehicles and owners of other motor vehicles.

29. When it is said that the use of the words 'whoever drives' in the beginning of Section 123 (1) makes the scope of the section wider than that of Section 42 (1) it is overlooked that the words 'whoever drives' are not used in isolation, but are followed by the expression 'in contravention of the provisions of Sub-section (1) of Section 42.' It is therefore not all driving that falls under the scopeof Section 123. Only that driving can fall under the scope of that section which is in contravention of Section 42 (1) and as that section imposes a prohibition on the owner alone, the expression 'whoever drives in contravention of the provisions of Section 42 (1)' can cover only that driver who is himself the owner.

It cannot include drivers who are not owners because they cannot drive in contravention of Section 42 (1). An owner can cause or allow his motor vehicle to be used in contravention of the provisions of Section 42 (1); he can also himself drive the vehicle in contravention of that provision. If he does either of these acts he will be liable to bo punished under Section 123. By the mere use of the expression 'whoever drives', therefore, it does not follow necessarily that Section 123 applies to non-owners' drivers also.

It is also not possible to give any particular significance to the use of the term 'motor vehicle'in Section 123 (1) and the term 'transport vehicle' in Section 42 (1). There being specific reference in the former provision to the latter provision it must follow that the motor vehicle the use of which is to be punished under Section 123 (1) can only be the kind of motor vehicle to which Section 42 applies.

It is not possible on the basis of the mere use of the expression 'motor vehicle' in Section 123 to hold that owners of all motor vehicles other than transport vehicles can also contravene the provisions of Section 42 (1) when that sub-section itself does not provide anything of that sort.

30. The assumed distinction between the ex-pression 'in contravention of the provisions ot subsection (1) of Section 42' and 'contravening the provisions of Sub-section (1) of Section 42' appearsto be a distinction without a difference. It is only the passive voice which is used in the first expression and the active voice in the second. This employment of different voices cannot affect the meaning of the expression in any manner. The dictionary meaning of the word 'contravention' includes infringement, opposition, violation, or coming into conflict with.

A person can therefore be said to act in contravention of a provision of law only if he does something which he is enjoined by the law not to do or omits to do something which the law requires him to do. If the law does not affect him at all in the sense that it does not impose any duty upon him to do anything and does not prohibit him from taking a particular course of action there can be no question of his infringing that provision of law or acting in contravention of it.

Such a person cannot therefore either contravene that provision of law or act in contravention of it. As Section 42 imposes a prohibition on the owner of a transport vehicle alone and requires the owner only not to act in a particular manner it is in my opinion only the owner who can contravene the provision or act in contravention of it,

31. The argument is that as Section 42 was enacted for the purpose of securing obedience to the conditions of permits any breach of the conditions by whomsoever committed would amount to a contravention of that provision. It is assumed here that Section 42 (1) is a general provision enacted with the intention of seeming obedience to the conditions of permits by every one. Had that been the intention the section would have been framed in a different manner and would have provided something like no transport vehicle shall be used or permitted to be used in any public place save in accordance with the conditions of the permit That is however not the form in which the Legislature enacted that section. As the section stands therefore it imposes a restriction on the owner alone and the owner only can therefore act in contravention of its provisions.

32. Obedience to the conditions of a permit is apparently of greater importance so far as transport vehicles are concerned as compared to other kinds of motor vehicles, It is also easy to understand that owners of transport vehicles can be in a position to exercise effective control over their use. Ordinarily such vehicles cannot be used in public places except with their express or implied permission or consent.

Drivers, conductors, managers in charge of transport vehicles are their siibordjnates and are expected to act under their directions and for their benefit. In these circumstances it is not surprising if the Legislature was inclined to impose a greater responsibility on owners so far as compliance with the conditions of permits of transport vehicles was concerned.

It therefore enacted Section 123 (1) by providing a larger measure of punishment in the case of owners if they acted in contravention of the terms of their permits. The other persons like drivers and conductors of transport vehicles or owners of motor vehicles other than transport vehicles who do not follow the conditions of the permits of the vehicles were however not allowed to go scot free. Their cases were to fall under Section 112 of the Motor Vehicles Act which provided for a milder punishment.

It cannot therefore be said that there is no penal provision for drivers or other persons using motor vehicles in contravention of the conditions or a permit, or that the Legislature has made an unjustified distinction between owners of transport ve-hicles and other persons.

33. These grounds cannot therefore be said to have much force and in any case appear to be entirely insufficient for establishing that the view taken in the case of : AIR1956All27 , was unjustified. To me, it appears, if I may say so with respect that the interpretation put on Section 42 (1) and Section 123 (1) of the Act in that case was the correct one.

34. Judicial opinion on the point has not been uniform. So far as this Court is concerned, the first case in which the question appears to have arisen is the case of : AIR1950All234 , where Agar-wala, J., following an earlier Madras case of AIR 1941 Mad 845 (G), took the view that Section 123' (1) was wide enough to cover the case of a driver. Then came the case of : AIR1952All276 , in which the contrary opinion was taken by Mr. Justice Desai.

The conflict was noticed by Mukerji, J., when the case of Bansraj v. State (A), came up before him, and he referred the case to a Division Bench which upheld the view taken in : AIR1952All276 . The decision is reported as : AIR1956All27 . Before this case was reported the point arose before Mr. Justice Asthana in : AIR1956All400 , and he did not agree with the view taken in Jagrup's case (F).

In Hari Gopal v. State, 1956 All LJ 177 (N), which was decided at about the same time, Brij Mohan Lall, J., took the same view as had been taken in Jagrup's case. The decision of Hari Gopal v. State, was reported in 1956 All LJ 177 (N). But in R. B. Lal v. The State : AIR1955All618 , Kidwai and H. S. Chaturvedi, JJ., preferred the contrary view. When the point again arose before Asthana, J., in Mohammad Ismail and Kulwant Singh v. State, 1956 All LJ 271 (P), he changed his view and fell in line with the decision in : AIR1956All27 .

35. So far as the other High Courts are concerned, the earliest case in which the point appears to have arisen is that of AIR 1941 Mac! 845 (G). It was held in that case that a driver could be convicted under Section 123 (1) if he drove a vehicle in a public place without a permit. A different view was taken by the Nagpur High Court in Emperor v. Amrit Lal Chunni Lal, AIR 1945 Nag 263 (Q). That Court apparently changed its view in the subsequent decision of AIR 1944 Nag 89 (H), holding Section 123 to be wide enough to cover the case of a driver.

This view found favour with the Punjab High Court in , with the Rajasthan High Court in Kalyan Lal v. State , and again in , with the Calcutta High Court in 59 Cal WN 787 (L), and with the Bombay High Court in State v. Balasaheb Babu Shirke : AIR1957Bom243 . In some of these cases the learned Judges have expressly dissented from the case of : AIR1956All27 .

36. A perusal of these contrary decisions will show that in most of them the only ground given for holding that a driver falls within the scope of Section 123 is that that section is wider in scope than Section 42. In the Calcutta case of Chandra Deo Singh (L), it was held that though Section 123 was wide enough to cover the case of a driver it did not cover the case of a conductor. In the case of , Bhandari, J., disagreed with the view taken in Bansraj's case (A), on the ground that Section 123 was intended to be a residuary section and if it was construed to apply to owners alone it would become meaningless and lead to absurd results.

37. As I have tried to show, there is no real? substance in the contention that Section 123 is wider than Section 42 and on that basis to interpret it as. covering the cases of non-owners. There also appears to be no justification for interpreting Section 123 as a residuary section. Really the residuary section in the Motor Vehicles Act is Section 112. I am also unable to see how the construing of section-123, as has been done in Bansraj's case, can make the section meaningless or lead to absurd results.

38. After giving my anxious consideration to-the matter I think the decision in Bansraj's case (A), is correct and the interpretation put on Sections 123 (1) and 42 (1) in Bansraj's case (A), is the right and logical interpretation which follows from the plain meaning of the words used by the Legislature.

I would therefore answer the question referred to us by saying that under Sections 42 (1) and 123 (1) of the Act as they stood on the date of the alleged offence in the case in hand it is the owner of a transport vehicle alone when he acts in contravention of Section 42 (1) of the Motor Vehicles Act who can fall within the scope of Section 123 (1) of the Act. All persons who are not owners fall outside that scope. BY THE COURT

39 The question referred to the Court is answered as follows :

'Under Sections 42 (1) and 123 (1) of the Motor Ve-hides Act, as it stood on the date of the alleged offence, it is the owner of a transport vehicle alone when he acts in contravention of Section 42 (1) of the Act who can fall within the scope of Section 123 (1) off the Act. Persons who are not owners do not fall within the scope of that section.'

ORDER (7-4-1958).

R.K. Chowdhry, J.

40. The facts of this case are given in extenso-in my judgment dated 17-5-1957 whereby the following question was referred to a Bench larger than the one which decided : AIR1956All27 .

'Can only the owner of transport vehicle and neither the driver of the vehicle nor anybody else, contravene the provisions of Section 42 (1) of the Indian Motor Vehicles Act (IV of 1939), and is only the owner, and neither the driver nor anybody else, liable to punishment for that contravention under Section 123 (1) of that Act?'

41. The finding of the Full Bench, by a majo-rity is that under Sections 42 (1) and 123 (1) of Motor Vehicles Act as they stood on the date of the alleged offence of the case in hand it was the owner of a transport vehicle alone when he acted in contravention of Section 42 (1) of the Motor Vehicles Act who could fall within the scope of Section 123 (1) of the Act, and that all persons who were not owners fell outside that scope.

42. In view of the above opinion of the Full Bench the reference made by the learned Sessions-Judge under Section 438 Cr. P. Code, should be accepted and the conviction of Sher Khan driver under Section 123 of the Motor Vehicles Act 1939, for contravention of rule 79 (viii) of the U. P, Motor Vehicles Rules, 1940, should be converted into one under Section 112 of that Act. It may be stated that even if Sher Khan cannot be punished under Section 123 (1) of the Act for contravention of the provisions of Section 42 (1) because of the latter section being applicable only to owners of motor vehicles, Sher Khan should still be held liable for contravention of rule 79 (viii) of the U. P. Motor Vehicles Rules, 1940. That being so, Sher Khan is liable to the lesser punishment provided by the-general Section 112 of the Act;

43. There was also a recommendation for acquittal of Inderdeo, the conductor. This recommendation cannot be accepted since the aforesaid Rule 79 (viii) applies to conductors as well as to drivers.

44. In the result, therefore, accepting the reference with regard to Sher Khan only, his conviction under Section 123 (1) is altered into one under Section 112 of the Motor Vehicles Act 1939 and thesentence of Rs. 40/- is reduced to Rs. 20/-. TheMagistrate's direction with regard to one month'ssimple imprisonment for non-payment of fine willstand in the case of Sher Khan. The reference foracquittal of Inderdeo is rejected.


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