1. This appeal arises out of an unsuccessful prosecution under the Motor Vehicles Act (Act IV of 1939). On 14-3-1957, Pw. 1, the Sub-Inspector of Police at Neeleswar, checked the lorry, M. D. G, 3655, at the fourth mile stone on the Neeleswaram-Parappa road. It was then found that the first accused, who was driving the lorry, was not in possession of a permit authorising the lorry to be taken along the road. It is stated that in spite of the notice, Ext. P1 served on him by Pw. 1 calling upon him to produce the permit within 10 days, he failed to do so. The allegation against the 2nd accused is that he allowed the first accused to ply the lorry along the Neeleswaram-Parappa road without a permit.
On these allegations, both the accused were prosecuted for the offence under Section 123(1) read with Section 42(1), Motor Vehicles Act. The case against them was tried as Calendar Case No. 267/1957 on the file of the Sub-Magistrate's Court at Hosdrug. The accused pleaded not guilty to the charge against them. The prosecution, examined Pws. 1 and 2 and produced Ext. P 1, copy of the notice dated 14-3-1957 issued to the first accused by Pw. 1. The learned Magistrate after considering the evidence in the case found that the prosecution has failed to make out the offence against accused 1 and 2 and accordingly acquitted both of them. The acquittal of the 2nd accused has not been challenged. But the State has preferred this appeal against the Magistrate's order acquitting the first accused.
2. The main attack against the judgment of the learned Magistrate is that he has erred in his view that a person who drives a motor vehicle without a permit will come within the mischief of Section 123 of the Motor Vehicles Act, only if he is also the owner of the vehicle. In support of such a view taken by the Magistrate, he has cited the decision in Bansraj v. State, (S) AIR 1956 All 27 and has refused to follow a contrary view taken by the Madras High Court in Public Prosecutor v. Jevan, AIR 19411 Mad. 845. Till recently the Malabar area where the present case arose, was within the jurisdiction of the Madras High Court.
Naturally, therefore, the Sub-Magistrate at Hosdrug was bound to follow the decision of the Madras High Court irrespective of any consideration that on the identical question a different view has been taken by a different High Court. Apart from this aspect of the matter, we think that on a proper construction of the relevant section of the Motor Vehicles Act, the view taken in AIR 1941 Mad. 845 has to be accepted as the better view. At the time of the decision in that case and also at the time of the decision in (S) AIR 1956 All. 27, Sub-section (1) of Section 123 of the Motor Vehicles Act stood in the following terms :
'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.'
Sub-section (1) of Section 42 runs 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 State Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.'
It is unnecessary for the purpose of the present case to refer to the provisos to the above Sub-section. This sub-section indicates certain acts of the owner of a motor vehicle which may be punishable under the Act. The penal provision is contained in Sub-section (1) of Section 123. Merely because this sub-section refers to contravention of the provisions of Sub-section (1) of Section 42, it cannot be said that Sub-section (1) of Section 123 is limited or restricted in its application to the owner referred to in Sub-section (1) of Section 42.
The essence of Sub-section (1) of Section 42 is that it prohibits the use of a transport vehicle except in accordance with the conditions of a permit granted by the Transport authority. No doubt the prohibition under this sub-section is directed against the owner of the vehicle. The owner must necessarily come in when it is a question of permitting or allowing his motor vehicle to be used by others. It is also the owner of the vehicle who is to get the required permit. But when we come to Sub-section (1) of Section 123, it is seen that the legislature deliberately made its scope comprehensive enough so as to take in persons driving a motor vehicle without a permit or in contravention of the terms of the permit and also persons allowing motor vehicles to be used in a like manner.
The expression 'whoever drives a motor vehicle' as occurring in the opening portion of Sub-s. (1) of Section 123, clearly indicates that it is used in its widest sense. It will, therefore, be wrong to give a restrictive meaning to that expression so as to make the section applicable only to the owner who drives the vehicle. There is no justification to construe the word 'whoever' in such a narrow sense as applying only to the owner. To do so, would be to go against the plain meaning of the expressions used by the legislature in enacting Sub-section (1) of Section 123.
It is clear from the prohibition contained in Sub-section (1) of Section 42 that no motor vehicle is allowed to be used on the public road except under a permit and in accordance with the conditions of the permit. That is obviously the reason why the penal provision contained in Sub-section (1) of Section 123 is made all-comprehensive so as to apply to every person, no matter whether he is the owner of the vehicle or not, who uses a vehicle without a permit or in contravention of the conditions of the permit.
This was the view taken in AIR 1941 Mad. 845. The same view was taken in Provincial Government C. P. and Berar v. Mohanlal Keshaolal, AIR 1944 Nag. 89; Teja Singh v. The State, AIR 1952 Punjab 45; Kalyan Lal v. State, AIR 1954 Raj 250; Chandradeo Singh v. The State, 59 Cal. W.N. 787 and in State v. B.B. Shirke, (S) AIR 1957 Bom. 243. For the reasons already stated we are unable to agree with the contrary view taken in (S) AIR 1956 All. 27.
3. The above discussion on the the true scope of Section 123 of the Motor Vehicles Act is only of academic interest so far as the present case is concerned. The offence for which the accused in this case were prosecuted, was alleged to have been committed on 14-3-1957. Long before that date, Sub-section (1) of Section 123 of the Motor Vehicles Act, as it stood at the time of the decisions cited above, had undergone very drastio changes as per the amendment made by Act 100 of 1956. Sub-section (1) of Section 123 as amended runs as follows :
'Whoever drives a motor vehicle or causes of 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 reasons to be stated in writing, impose a fine of less than Rs. 500/- for such subsequent offence'. The sub-section as re-enacted in the above manner makes it clear beyond all possible doubt that the owner of a motor vehicle as also any other person who drives a motor vehicle without a permit or in contravention of any of the conditions incorporated in the permit which may have been obtained in respect of such a vehicle, will be guilty of the offence punishable under this sub-section. If the Magistrate had directed his attention to this subsection as it stood amended, he would not have fallen into the error of being guided by the decision in (S) AIR 1956 All. 27 which decision was based upon Sub-section (1) of Section 123 as it stood before the amendment.
4. From the above discussion it follows that the first accused in the present case must be found to have committed the offence punishable under Sub-section (1) of Section 123, Motor Vehicles Act, if the necessary facts have been proved against him. There is the evidence of Pws. 1 and 2 that the first accused was seen driving the lorry MDC-3659 along the Neeleswara-Parappa road on 14-3-1957. The further facts to be proved against him are that the vehicle had no permit authorising its use along the Neeleswar-Parappa road and that the first accused was driving the vehicle in contravention of any of the conditions of the permit in case permit had been obtained in respect of the vehicle.
On these aspects there is not even formal evidence on the prosecution side. All that Pw. 1 was able to state a that he did not find any permit in the possession of the first accused and that he failed to produce the permit in spite of the notice demanding such production. The non-production of this permit by the accused does not necessarily mean that the vehicle had no permit at all or that the first accused had contravened any of the conditions of the permit, if a permit had really been obtained.
It cannot be said that the accused was under an obligation to supply the necessary evidence in support of the prosecution against him. The burden of proof in such a case is undoubtedly on the prosecution. The prosecution could have easily obtained the necessary information from the Regional Transport Authority whether the vehicle in question had been granted a permit and, if a permit had been granted, what were the conditions incorporated in that permit.
Regarding these matters the prosecution could easily have adduced secondary evidence. But it is seen that the prosecution did not care to adduce primary evidence or even secondary evidence, in proof of the aforesaid facts and thus to make out the offence alleged against the first accused. Such being the unsatisfactory nature of the evidence in this case, it cannot be said that the Magistrate was wrong in acquitting the first accused. Such an acquittal does not therefore call for any interference in this appeal.
5. In the result this appeal is dismissed.