R.P. Khosla, J.
1. This is a revision petition by Kar-naii Singh against his conviction for an offence under Section 42 punishable under Section 123 of the Indian Motor Vehicles Act and for contravention of the provisions of Rule 528 (1) of the Motor Vehicles Rules 1940 punishable under Section 112 of the Indian Motor Vehicles Act. The petitioner was ordered to pay a fine of Rs. 51/- for contravening the provisions of Section 42 of the said Act and a further fine of Rs. 10/- for contravening the provisions of Rule 528 (1) of the Motor Vehicles Rules, 1940.
2. The petitioner was a driver in the employment of the Simla Hills Transport Company, Delhi. On 4-3-1956, he was found driving taxi car No. DLZ-26 belonging to the said firm at Hodal in District Gurgaon. The permit for plying this car was restricted to Delhi State territory only. The petitioner could not produce the first-aid box also at the time when he was apprehended at Hode],
3. The petitioner was prosecuted for plying car in an area not covered by the permit and for contravening the rules under the Motor Vehicles Act for non-production of the first-aid box.
4. The facts of this case are not in dispute. An attempt at the trial wag made to prove that the first aid box was in the car and thus the petitioner was not within the mischief of Rule 5.28 (1) of the Motor Vehicles Rules, 1940. Courts below-found against the petitioner on this aspect. This matter is not even agitated before me now in revision. I accordingly hold that the petitioner was rightly convicted and sentenced under Section 112 of the Motor Vehicles Act for contravention of Rule 5.28 (1), Motor Vehicles Rules, 1940.
5. The learned counsel for the petitioner challenged the conviction and sentence for the offence under Section 42 punishable under Section 123 of the Motor Vehicles Act in all seriousness. His principal submission was that if a vehicle holding a permit for a particular territory on being hired out leaves that territory with a passenger for an area not covered by it and it is apprehended, and even if the vehicle is driven by a driver of the company, there could be no contravention of Section 42 of the Motor Vehicles Act, for, so the counsel maintained, that he did not solicit fresh custom.
Elaborating this argument it was urged that the owner of a transport vehicle within the territory permissible loses all control over the vehicle unless that vehicle is found soliciting custom outside the said territory, for in such a case hiring is completed at the stage of taking the transport vehicle by the customer. Applying this test to the facts of this case it was contended that at the time and place (Hodel) when the petitioner was apprehended the vehicle ceased to be a transport vehicle.
It was an ordinary motor cab in possession and control of the customer, the owner or the driver having no control over the same. This argument is without force. The language of Section 123 (1) of Motor Vehicles Act (Act IV of 1939) is very much wider than that of Section 42 (1). Section 42 (1) imposes an obligation upon the owner of a vehicle not to use or permit to be used the vehicle in any public place save in accordance with the conditions of the permit. Section 123 (1) penalises every person, be he a driver or a owner, driving, using or letting out of the vehicle for use in contravention of the provisions of Sub-section (1) of Section 42.
The expression 'whoever drives a motor vehicle' in Section 123 (1) is not limited by any express implication thereof only to the owner of the vehicle. The Legislature having penalised driving of vehicle by every person in contravention of the provisions of Section 42 (1) of the Act, it would be contrary to the plain intendment of the language used in the section to hold that by the expression 'whoever' it was intended by the Legislature to refer only to the owner of the vehicle and not to the driver who was not the owner.
6. In this case the petitioner Karnail Singh was found driving the vehicle in the territory not authorised by the permit. It cannot be said by any stretch of imagination that he was not in control of the vehicle merely because the said vehicle had been hired out to a customer. In this view I find that the petitioner having been apprehended at Hodel committed breach of the law in driving the vehicle in contravention of the provisions of Section 42 (1) of the Act and he must therefore be regarded as having incurred the penalty provided in Section 123 (1) of the Motor Vehicles Act.
7. In this view of mine I am fortified by the decision in Chandra Deo Singh v. The State, 59 Cal WN 787 (A). In that case it was held that the driver, who took a motor vehicle out of the route mentioned in the valid permit, came within the mischief of the penalty prescribed by section 123 (1) of the Motor Vehicles Act. It was observed that the driver ether than the owner who drives the motor vehicle in contravention of the terms of the permit is liable to be punished under Section 123 (1). Madras High Court in Public Prosecutor v. Jevan, 43 Crl LJ 49: (AIR 1941 Mad 845) (B), took the same view. Similar matter came up for consideration before this Court in Teja Singh v. The State, AIR 1952 Punj 45 (C). Bhandari J., (as he then was) observed--
'Altough the language employed by the draftsman in Section 123 is not clear as it might have been it is by no means difficult to ascertain the intention of the Legislature. The section is intended to be a residuary section and is enacted with the object of punishing a person (other than the owner) who uses a vehicle in contravention of the conditions of the permit issued by the appropriate authority. Any other construction would lead to absurd results and render the section wholly meaningless. On a plain reading of Sections 42 and 123 no doubt exists whatever that whereas the former section is designed to punish tte owner of a transport vehicle the latter is designed to Punish the driver or a:iy other person.'
A Division Bench of the Bombay High Court in State v. Balasaheb Baburao Shirke, (S) AIR 1957 Bom 243 (D), has expressed itself in similar terms.
8. For the aforesaid reasons I am of the view that the petitioner was rightly convicted for an offence under Section 42 read with Section 123 of the Motor Vehicles Act.
9. In the result this petition fails and is dismissed.