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The State Vs. Gopichand Hardasmal - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Criminal
CourtGujarat High Court
Decided On
Case NumberCriminal Ref. No. 66 of 1961
Judge
Reported inAIR1963Guj224; 1963CriLJ264; (1963)0GLR429
ActsMotor Vehicles Act, 1939 - Sections 84
AppellantThe State
RespondentGopichand Hardasmal
Advocates: H.M. Choksi, Govt. Pleader
DispositionReference accepted
Excerpt:
.....of the provisions of section 84 was established as soon as the prosecution showed that the auto-rickshaw was allowed by the accused to remain unattended in a public place. the learned sessions judge was of the opinion that the burden of proving that there was no person in the driver's seat duly licensed to drive the auto-rickshaw and that the mechanism had not been stopped or a brake or brakes had not been applied and other measures had not been taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver was on me-prosecution and that since the prosecution had failed to prove in the present case that a brake or brakes had not been applied and no measures had been taken to ensure that the auto-rickshaw could not accidentally be..........the construction of section 84 of the motor vehicles act, 1839. the accused who is a driver of an auto-rickshaw was charged for offences punishable under sees. 84 snd 86 read with section 112 of the motor vehicles act, 1939, in the court of the judicial magistrate, first class, ahmedabad. the charge against the accused for the offence under section 84 read with section 112 was on the allegation that he allowed the auto-rickshaw to remain stationary in a public place without there being in the driver's seat any person duly licensed to drive tne auto-rickshaw. the charge under section 86 read with section 112 was for not showing the licence on demand out i am not concerned with that charge since the accused was acquitted of the same. before the learned magistrate theprosecution led.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. This Criminal Reference raises a short question regarding the construction of Section 84 of the Motor Vehicles Act, 1839. The accused who is a driver of an auto-rickshaw was charged for offences punishable under Sees. 84 snd 86 read with Section 112 of the Motor Vehicles Act, 1939, in the Court of the Judicial Magistrate, First Class, Ahmedabad. The charge against the accused for the offence under Section 84 read with Section 112 was on the allegation that he allowed the auto-rickshaw to remain stationary in a public place without there being in the driver's seat any person duly licensed to drive tne auto-rickshaw. The charge under Section 86 read with Section 112 was for not showing the licence on demand Out I am not concerned with that charge since the accused was acquitted of the same. Before the learned Magistrate theprosecution led evidence to show that at 11.00 A.M. on 24th December 1960, the auto-rickshaw of the accused was lying unattended at the Railway auto-ricks haw stand ana that there was no person in the driver's seat duly licensed to drive the auto-rickshaw. The prosecution did not lead any evidence to show whether a brake or brakes were applied or any other measures were taken so as to ensure that the auto-rickshaw could not accidentally be put in notion in the absence of the driver. The accused also am not lead any evidence in defence. On this evidence the learned Magistrate found that the accused had contravened the provisions of Section 84 and was, therefore, guilty or the offence punishable under Section 84 read with Section 112. The learned Magistrate took the view that the burden of proving that a brake or brakes were applied or other measures were taken so as to ensure that the auto-ricksnaw could not accidentally be put in motion in the absence ot the driver was on the accused and that since the accused had failed to discharge the burden which lay upon him, the contravention of the provisions of Section 84 was established as soon as the prosecution showed that the auto-rickshaw was allowed by the accused to remain unattended in a public place. The learned' Magistrate accordingly convicted the accused of the offence under Section 84 read with Section 112 and sentenced him to pay a fine of Rs. 20/- or in default to suffer simple imprisonment for seven days.

2. The accused being aggrieved by the order of conviction and sentence passed against him, fiied a Revision Application in the Court of the Sessions Judge, Ahmedabad. The learned Sessions Judge took the view that on a true construction of Section 84, it was not enough for the prosecution to show that the person driving or in charge ot the auto-rickshaw had caused or allowed the auto-rickshaw to remain stationary in a public place but that it was necessary for the prosecution to go furiher and to show that neither there was in the driver's seat a person duly licensesto drive the auto-rickshaw nor had the mechanism been stopped and a brake or brakes applied or other measures taken so as to ensure that auto-rickshaw could not accidentally be put in motion in the absence of the driver. The learned Sessions Judge was of the opinion that the burden of proving that there was no person in the driver's seat duly licensed to drive the auto-rickshaw and that the mechanism had not been stopped or a brake or brakes had not been applied and other measures had not been taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver was on me-prosecution and that since the prosecution had failed to prove in the present case that a brake or brakes had not been applied and no measures had been taken to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver, the contravention of the provisions of Section 84 could not be said to have been brought home to the accused and the accused could not, therefore, be convicted of the offence under Section 84 read with Setion 112. The learned Sessions Judge accordingly made the present Reference to this Court recommendingthat the order of conviction and sentence passed against the accused be set aside and the accused be acquitted or the offence under Section 84 read with Section 112.

3. The question which arises for consideration in mis Criminal Reference, therefore, turns on the true interpretation of the provisions of Section 84 which is in the following terms:--

'84. Stationary vehicles:-- No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there isin the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.'

It is clear on a plain and grammatical construction of Section 84 that no person driving or in charge of a motor vehicle can cause or allow the vehicle to remain stationary in a public place unless either of the two conditions specified in the section is fulfilled. The first condition is that there should be in the driver's seat a person duly licensed to drive the vehicle and the second condition is tnat the mechanism should have been stopped and a brake or brakes should have been applied or such other measures should hava been taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. If eitner of these two conditions is fulfilled, the person driving or in charge of the motor vehicle can cause or allow the vehicle to remain stationary in a public place. There would, therefore, be no contravention of the provisions of Section 84 unless neither of these two conditions is fulfilled. It is only if neither of these two conditions is tuitnied that it would constitute a contravention of the provisions of Section 84 to cause or allow a motor vehicle to remain stationary in a public place. It is therefore, obvious that in the present case even if there was no person in the driver's seat duly licensed to drive the auto-rickshaw, there was no contravention of the provisions of Section 84 unless tha mechanism of the auto-rickshaw was not stopped or a brake or brakes were not applied or other measures were not taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver. If the mecha-nism was stopped and a brake or brakes applied or suen other measures taken as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence ot the driver, the accused could not be said to have contravened the provisions of Section 84 by allowing the auto-rickshaw to remain stationary at the Station auto-rickshaw stand. The burden of proving contravention of the provisions of Section 84 obviously rested on the prosecution and it was, therefore, for the prosecution to show that the mecha-nism of the auto-rickshaw was not stopped or that a brake or brakes were not applied or other measures were not taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver for, unless that was shown, it could not be said that there was any contravention of the provisions of Section 84. The act which constituted contravention of the provisions of Section 84 was the act of causing or allowing the auto-rickshaw to remain stationary in a public place without there being in the driver's seat a person duly licensed to drive the auto-rickshaw and without the mechanism being stopped and brake or brakes applied or other measures taken so as to ensure that auto-rickshaw could not accidentally be put in motion in the absence of the driver and unless the prosecution proved that there was neither in the driver's seat any person duly licensed to drive the auto-rickshaw nor was the mechanism stopped and a brake or brakes applied or such other measures taken as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence or the driver, the prosecution could not possibly bring nome to the accused any contravention of the provisions of Section 84. These two conditions cannot be treated as being in the nature of exceptions, the burden of proving which can be cast on the accused. It is not a correct way of look-ing at Section 84 to treat the act of causing or allowing the motor vehicle to remain stationary in any public placeis a contravention of the provisions of Section 84 and to consider the two conditions specified in the Section as exceptions. Section 84 must-be-read as a whole and so read, It yields one and only one meaning, namely, that what is prohibited by the Section is not the act simpliciter of causing or allowing a vehicle to remain statiqnary in a public place but the act, of doing so without either of the two conditions specified in the Section, being fulfilled. The tion-fulfilment of both the conditions is thus an essential in-gredient of the offence and the prosecution must negative the fulfilment of both the conditions before it can bring bome to the accused contravention of the provisions of Sec-tion 84, the learned Sessions Judge was, therefore, right in corning to the conclusion that it was for the prosecution to show that the mechanism of the auto-rickshaw was not stopped or that a brake or brakes were not applied or other measures were not taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver and that since the prosecution had not led any evidence in that behalf, the accused could not be said to be guilty of contravention of the provisions or Section 84. If the accused could not be said to have contravened the provisions of Section 84, it is obvious that the conviction of the accused for the offence under Section 84 read with Section 112 cannot.be sustained.

4. In the result I accept the Reference, set aside the under of conviction and sentence passed against the accused by the learned Magistrate and acquit the accused of the offence. under Section. 84, read with Section ,112. The fine if paid by the accused will be refunded to him.


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