1. Our learned brother Harnam Singh J. has referred this case to a larger Bench for a further consideration of the point of law involved in it. The facts found by our learned brother are as follows.
2. Ram Rup was the driver of motor lorry No. PBC-413 belonging to the Rohtak Bus Company. On 16-2-1948, the lorry driven by Earn Rup carrying some 25 or 26 passengers arrived at Mahem from Hansi side. Hari Parkash, son of one of the Directors of the Rohtak Bus Co. took his seat in the lorry by the side of the driver. After the lorry started from Mahem, Ram Rup driver gave the wheel of the bus to Hari Parkash who began to drive it. As Hari Parkash was a minor and not well trained in driving, Earn Lal P. W. 7 who was one of the passengers sitting in the lorry objected to its being driven by Hari Parkash. No heed was paid to his objection. Hari Parkash stopped driving for a while but he again took up the wheel and went on driving. When the bus passed through village Bahu Akbarpur, Hari Parkash was unable to control the lorry. At that (time?) the lorry was going at a high speed and shifted to the kacha portion of the road. Hari Parkash made an attempt to stop the lorry by suddenly applying the brakes but the lorry was overturned and four passengers were injured. The glass panes of the lorry were also broken and the oil and petrol in the engine was spilled on the ground.
3. Ram Rup stated that he was driving the lorry himself and wanted to take all the blame on him to exonerate the boy Hari Parkash, who is only 13 years of age, as he was the son of one of the Directors of the Rohtak Bus Company. This, however, was not accepted by the Courts below nor by our learned brother. The finding is that Ram Rup was in charge of the lorry and at the time the accident took place, was with the boy who was then driving the lorry. The point of law involved is that if the boy Hari Parkash was guilty of offences under Ss. 338 and 279, Penal Code, and was convicted of these offences, can Ram Rup be found guilty of abetment of these offences, the argument being that there cannot be abetment of negligence? In support of the argument is quoted Salmond who has stated at p. 393 of his work on Jurisprudence, 10th (1947) Edn. as follows:
Negligence is culpable carelessness ... What then is meant by carelessness? It is clear, in the first place, that it excludes wrongful intention. These are two contrasted and mutually inconsistent mental attitudes of a person towards his acts and their consequences. No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.
4. Let us examine what in fact the finding in this case is. The finding is that Ram Rup was the proper driver of this lorry and was in control of it. It was his business to drive it and if Hari Parkash, the boy, was driving he was driving with his permission, consent and approval, that it was within his knowledge that the boy did not know driving and was driving the lorry so rashly and negligently as to endanger the lives and personal safety of the passengers in the lorry and that Ram Rup could and should have prevented the boy from driving in this manner, but that he allowed him to do so and in spite of the protests of the passengers did not interfere in any way. He was present and beside the boy when the accident took place. In my opinion, in these circumstances it is not necessary to decide whether he was a mere abettor. He is liable as a principal offender under the provisions of Section 114, Penal Code. In fact he was the person driving through the hand and instrumentality of the boy to whom he had consciously and knowingly given the steering wheel. In my opinion, therefore, he is himself liable to be punished for offence under Ss. 338 and 279, Penal Code.
5. Salmond in his word on Jurisprudence Edn. 1947 at p. 381 says:
The law treats as intentional all consequences due to that form of negligence which is distinguished as recklessness - all consequences, that is to say, which the actor foresees as the probable results of his wrongful act.
A quotation from Kenny's Criminal Law (Edn.15, 1936) is given there in these words:
Yet in law it is clear that the word 'intention' like the word 'malice' covers all consequences whatever which the doer of an act foresees as likely to result from It; whether he does the act with an actual desire of producing them, or only recklessness as to whether they ensue or not.
At p. 393 it is stated in Salmond's book:
But there is another form of negligence, in which there is no thoughtlessness or inadvertence whatever. If I drive furiously down a crowded street, I may be fully conscious of the serious risk to which I expose other persons. I may not intend to injure any of them, but I knowingly and intentionally expose them to the danger .... When I consciously expose another to the risk of wrongful harm, but without any wish to harm him, and harm actually ensues, it is inflicted not wilfully, since it was not desired, nor inadvertently, since it was foreseen as possible or even probable, but nevertheless negligently.
There are in reality three forms of mena rea or fault: (1) that in which the consequences are foreseen and wrongfully intended; (2) that in which they are not intended but are foreseen and should have been avoided; and (8) that in which they are neither foreseen nor intended, but ought to have been foreseen and avoided. In the present work (1) is called intention, (2) is called advertent negligence (or recklessness), and (3) is called inadvertent negligence....
The practical importance of the distinction (between (2) and (3)) is that, as already seen, recklessness is frequently for legal purposes classed with intention.
It is stated in vol. 9 of Halsbury's Laws of England (Edn. 2) p. 10 footnote (h):
For the purposes of criminal law, an act or omission is voluntary if it might have been avoided by the exercise of reasonable care; thus a negligent act or omission is willed, because the person responsible does not will to prevent the commission or omission.
6. If it was necessary to hold I would hold that Ram Rup, in the words of Section 107, Expl. 2 read with Ss. 336 and 279 prior to and at the time of the rash and negligent driving by Hari Parkash, facilitated his rash and negligent driving and, therefore, intentionally aided him (both by not preventing him from driving as well as by allowing him to drive) in his act endangering human life and personal safety of others and likely to cause hurt or injury to them.
7. This case is similar to the case decided in the King's Bench the case of Du Cros v. Lambourna 1907 l K. B. 40 : 76 L.J. K. B. 50. There, the case was referred by the Quarter Sessions to the King's Bench and the statement of this case said:
If Miss Godwin was then driving, she was doing so with the consent and approval of the appellant (Du Cros), who was the owner and in control of the car and was sitting by her side, and he could and ought to have prevented her driving at such excessive and dangerous speed, but instead thereof he allowed her to do so and did not interfere in any way.
The Judges of the King's Bench held that he was guilty as a principal, but were prepared to hold that he was guilty as an a better also, as that made no difference.
8. In the case cited by learned counsel for the petitioner Mohomed Jamaly, Emperor A.I.R. (17) 1930 Sind 64 : 30 Cr. L.J. 1077, the point seems to have been conceded for the accused by counsel for the Grown and there is no discussion in the judgment. A case very similar to the present is that of Provincial Govt. C, P. & Berar v. Saidu A.I.R. (34) 1947 Nag. 113 : 47 Cr. L.J. 968 in which there is a full discussion. The learned Judges, Niyogi and Pollock, found Saidu, the driver, guilty of intentionally aiding Fakruddin who was at the moment driving, because he (Saidu) wilfully and with full knowledge of essential facts, permitted Fakruddin to drive the oar and failed to prevent him from using it in the manner in which he did. They found him guilty of the offence as a principal offender. This is what they said:
Saidu, who is an experienced driver must have, or must be presumed to have, known that Fakruddiu who had no license to drive could not be trusted with the control of the truck in motion without grave peril to the persons using the public road and that an accident was highly probable. That knowledge laid upon him the duty of not only refusing to let a novice like Fakruddin handle the oar but of preventing him from doing so; nevertheless, he placed the vehicle at his disposal, the very instrument with which the offence was committed. The non-applicant thus aided Fakruddin wilfully both by affording facility for its commission and by refraining from preventing it. In doing so he was clearly guilty of negligence, which as defined in Blyth v. Birmingham Water Works Co. 1856 11 Ex. 781 : 25 L.J. Ex. 212 is a breach of duty caused by the omission to do something which 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. Mens rea or a blameworthy condition of the mind consists of a malicious or fraudulent intent as well as of guilty knowledge or negligence (see Halsbury's Laws of England (Halisham Edition Vol. 9, p. 11). For the purposes of criminal law, an act or omission is voluntary if it might have been avoided by the exercise of reasonable care. A negligent act or omission is willed, because the person responsible does not will to prevent the commission or omission (ibid Vol. 9, p. 10, Note (h) Saidu had, in any case, the option to refuse to let Fakruddin drive the truck, bat as he failed to exercise that option, in spite of his knowledge of the incompetence of Fakruddin to drive a motor vehicle, his aid must be deemed to be wilful.
9. I might also refer in this connection to the case of Emperor v. Morgan, 36 Cal.302 : I.T.C. 814. The headnote in this case states:
Two persons, one a corporal and the other a private, who had both been in the regiment over four years, went to a plantation at the edge of which there was an eminence on which they set up at the sky-line a small tin case as a target, and fired several shots at it, from a distance of 100 feet, with a quarter inch bora saloon rifle sighted to 100 yards. There was a public road used by the villagers about 150 yards away, and 60 feet below the level of the eminence, but in the direct line of fire.
The road was not visible from the firing point, but, clearly so from the target. A bullet struck a man passing along the road at a spot in the line of fire, though it did not appear, who had fired the shot. No precautions of any kind were taken to prevent danger to passers-by on the road from such firing.
Held, that they were both guilty of criminal rashness and negligence within Section 304A read by itself without reference to 34. 34 and 107, is firing at an object on the skyline of the eminence against the light, (which was in itself dangerous), near a public road within the zone of fire with a rifle which, sighted to a 100 yards, they mast have known might easily carry some considerable distance beyond and prove fatal, without taking any precautions or using the slightest circumspection with referance to the safety of others.
10. This case was tried by a Jury and the Sessions Judge in his charge to the Jury had said:
It cannot be known which of the accused committed the act charged, that is which of them fired the shot, which caused the death. But if you are satisfied that one of them fired the shot, you will probably find that the other abetted such firing.
The learned Judges on the facts of the case were clearly of the opinion that both the accused could have been convicted under Section 336, because they fired with the rifle from the spot 'b' at a marking which they had placed on the sky-line at 'c' without having taken any precaution or used the slightest circumspection with regard to the safety of others. They were found guilty under Section 304A, because the death of the deceased was directly due to what they held to be a criminally negligent act on the part of both of the accused:
It is difficult to see', said the learned Judges, 'how a person can 'abet' the 'negligence' of another without himself being equally 'negligent' within the meaning of the section, having regard to the definition of 'negligence' above quoted.
The definition which they were referring to was adopted by them from a judgment of Holloway J. in Beg. v. Nidamarti Nagabhushanam, 7 M.H.C.R. 119 at p. 120, where the learned Judge had said:
Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they may not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal or mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness, The imputability arises from the neglect of the civic duty of circumspection.
The Calcutta case was similar to Beg. v. Salmon (1880) 6 Q.B.D. 79 : 50 L.J.M.C. 25 which the learned Judges followed.
11. Lastly, reference may be made to the ease of Baldessare (1930) 144 L. T. 185, which was heard in the Court of Criminal Appeal by Lord Hewart C.J., Talbot and Macnaghten JJ. In this case the appellant Baldessare and his companion Chapman were both convicted at the Central Criminal Court of the manslaughter of an old woman, who had died as the result of being knocked down by a car which Chapman was driving and in which Baldesaare was riding as a passenger, Both were sentenced by Swift J., to 12 months' imprisonment. Chapman did not appeal. There was evidence that, at the time of the collusion, which was long after dark, the car was being driven at a, very fast speed without sufficient lights, that the brakes were violently applied, and that the car did not stop before it had travelled some 30 yards from the place of the impact.
12. In the charge to the jury, Swift J. had said:
It in not everybody who drives in a motor car who is responsible for the conduct of the driver, and indeed one can imagine circumstances under which nobody could possibly be responsible for the conduct of the driver but himself.
The Judge then put a hypothetical case where an owner is being driven by his chauffeur, as far as he knows, quite properly and quietly, but where the chauffeur is not keeping a proper look-out and runs over a child. The Judge then put a ease at the opposite extreme, where the owner says to the chauffeur:
I have to be forty miles away in quarter of an hour; do'nt stop (or anything, go as fast as you can, and if the police signal to you do'nt stop, go on as fast as you can.
Having stated these hypothetical cases, the Judge added this:
Now between these two extremes there are many varying degrees and yon have got to ask yourselves what was the position of Baldessare in this particular case. Supposing you come to the conclusion that the driver was guilty of criminal negligence, was Baldessare a party to it, was be an innocent passenger in no way responsible for what happened, or was he a party aiding and abetting Chapman in what he was doing, engaging with him in this joy-ride, sharing with him not only the pleasares but also the responsibilities of the driving of the car? You must make up your minds about that between you, because if you come to the conclusion that Baldessare could not control, and was in no way controlling, and in no way responsible for the driving of Chapman you will acquit him.
13. The judgment in this ease was delivered by Lord Hewart C.J. He called the summing up 'excellent' in one place and 'perfectly fair' at another. After that summing up, the jury came to the conclusion that the appellant Baldessare was guilty of manslaughter; in other words, they came to the conclusion that he and Chapman were acting together and joined in the responsibility for driving of the car in the way in which it was in fact driven. Lord Hewart C. J,, said:
The only question for this Court is whether there is any evidence on which the jury could properly find that community of purpose and action.
and he said that it could not be said that there was not. He concluded by saying:
Here was a clandestine ride-commonly a 'joy-ride' -on a dark night in February, without proper lights, and the two had taken the car for a purpose, which the jury had found was not felonious, but which had for its object a 'joy-ride' without the knowledge and assent of the owner. Looking at these facts, and at the actual speed of the car and its movements, before and after the collision, we think that the jury may properly have found that both the appellant and Chapman were responsible for the way in which the car was being driven at the moment of collision.
14. The facts of the present case in which Earn Rup and Hari Parkash are the accused appear to me to be stronger regarding the culpability of Earn Rup than in the ease of Baldessare cited above. It is very fortunate that nobody lost his life or sustained any very serious injury.
15. In my opinion, Earn Rup was guilty under Ss. 338 and 279, Penal Code. He was sentenced to nine months' rigouxos imprisonment by the trial Magistrate on 4-8-1948, which conviction and sentence were upheld by the Additional Sessions Judge on 12-11-1948. Our learned brother Harnam Singh J., released him on bail while referring this case to a larger Bench on 25-1-1949. By the time he was released on bail Earn Rup had done about three months in jail. I would uphold the conviction and sentence him to imprisonment for the period already undergone and to a fine of Rs. 100 or in default to a further period of rigorous imprisonment of three months.
16. Falshaw, J.-I agree.