1. These two appeals relate to a matter in which the prosecution was for driving the truck No. RJP 479 on 17th July, 1958, at about 9 P.M., in the town of Malsisar without permit required under Section 42(1) of the Rajasthan Motor Vehicles Act (hereinafter called the Act). The truck No. RJP 479 was a public-carrier vehicle owned by Sita Ram accused and on that night it was driven by Bhagwan Singh accused. The police constable Shri Goduram who was at the police station Malsisar stopped the truck on the main road and informed Phul Singh constable, who examined it. The said constable found that the truck had no permit as required under Section 42(1) of the Act. Two other deficiencies were noticed; one was that there was no horn on the truck and the other was that the driver was unable to produce the certificate of insurance when Phul Singh had demanded it from him. Phul Singh reported the matter to the Station House Officer, Police Station Malsisar and a complaint was filed in the court of the First Class Magistrate, Jhun-Jhunu, by the said officer against Sita Ram and Bhagwan Singh under Section 42(1) read with 123 of the Act, Section 125 read with 94, Section 112 and Rule 156 of the Rajasthan Motor Vehicles Rules (hereinafter called the Rules).
The learned Magistrate held that the aforesaid truck was stopped and inspected as alleged by the prosecution on 17th July, 1958, at 9 P.M. He convicted Sita Ram the owner of the truck under Section 123 read with Section 42 (1) of the Act and in view of the fact that the said Sita Ram had been fined previously under that section he imposed a fine of Rs. 500/- on him ordering that in default of the payment of fine Sita Ram shall undergo rigorous imprisonment for two months. No order was passed with respect to this offence as against Bhagwan Singh the driver of the truck, The driver, however, was convicted under Section 125 read with Section 94 of the Act and was sentenced to pay a fine of Rs. 100/-. Sitaram was also convicted and sentenced to pay a like amount for that offence; in default of payment of fine it was ordered that the defaulter shall undergo one month's rigorous imprisonment. No finding was given with regard to the horn by the learned Magistrate.
Against this order of the Magistrate an appeal was filed by Bhagwan Singh and Sita Ram before the Sessions Judge, Jhunjhunu, challenging their convictions. The learned Sessions Judge held that it was not proved that Sita Ram had the knowledge of the use of the vehicle by Bhagwan Singh and in the absence of such proof he could not be convicted under Section 123 read with Section 94(1) of the Act. The learned Sessions Judge also pointed cut that the Magistrate was wrong to put his personal knowledge of conviction of Sita Ram under Section 123 of the Act and sentence him to an enhanced fine. In this view of the matter the learned Sessions Judge set aside the conviction of Sita Ram under Section 123 read with Section 42(1) of the Act. He also set aside the conviction of Sita Ram and Bhagwan Singh under Section 125 read with Section 94 of the Act on the ground that Phul Singn had no authority to demand the production of insurance certificate from Bhagwan Singh. The learned Sessions Judge refused to convict Bhagwan Singh under Section 123 read with Section 42(1) of the Act as this could be done only in an appeal by the State by the High Court.
2. As there was limitation for filing an appeal by tbe State against Bhagwan Singh against the implied order of acquittal under Section 123 read with Section 42 (1) of the Act, the State has filed the appeal No. 247/1959- State v. Bhagwan Singh. Another appeal has been filed by the State against the order of the Sessions Judge, acquitting Site Ram under Section 123 read with Section 42 (1)of the Act and Section 125 read with Section 94 of the Act and against the acquittal of Bhagwan Singh under Section 125 read with Section 94 of the Act.
At the time of the argument Mr. Amrit Raj did not press for the conviction of Bhagwan Singh and Sita Ram under Section 125 read with 94 of the Act but he argued that both Bhagwan Singh and Sita Ram should, be convicted under Section 123 read with 42(1) of the Act. Learned counsel for the accused has urged that it was not proved by the evidence on record that the vehicle did not carry Part B of the road permit on it. He has pointed out that the learned Sessions Judge has given no definite finding on this matter and the prosecution evidence was very meagre on this point. It is conceded that in view of the authority of State of Uttar Pradesh v. Bans Raj, AIR 1959 SC 79, Bhagwan Singh could be convicted under Section 123 read with Section 42 (1) at the Act if it is held that there was no road permit ot the vehicle. But it is urged that Sita Ram who was the owner of the vehicle was rightly acquitted by the learned Sessions Judge as it was not proved by the evidence on record that he had allowed the use of the vehicle.
3. So far as the question of fact is concerned we find that Phul Singh has definitely stated that there was no road permit of the truck when he inspected the truck. Under Rule 84(c) it is the duty of the holder of a permit to cause the relevant copy of Part B thereof to be carried in a glazed frame or other suitable container carried in or affixed to the Interior of the vehicle In such a way as to maintain it in a clean and legible condition readily available for Inspection at any time by any authorised person. It is this document which Phul Singh did not find In the truck. The accused did not plead that they had any valid road permit for the-truck. Under these circumstances the statement of Phul Singh may be relied on for the purpose of holding that there was no valid road permit in the truck as required under Section 42(1) of the Act.
4. Bhagwan Singh was driving the truck without the said permit and he is clearly liable under Section 123 of the Act. After the pronouncement of their Lordships In AIR 1959 SC 79, the owner of the vehicle is also liable under Section 123 of the Act provided It is proved that he had caused or allowed the vehicle to be used without the permit. There are two decisions of this Court on this point.
In Roop Narain Agarwal v. The State, ILR 1954-4 Raj 1032 it has been held that the conviction of the owner under sec. 123 of the Act is not in accordance with law unless It Is established that the owner expressly or impliedly permitted somebody to use the vehicle in contravention of the conditions of the permit. In that case there was a valid permit of the bus for a route but it was found to be running on different route. Dave J., took the view that the words 'permit the use of the vehicle' In Section 42(1) cannot be taken as meaning that the owner would be held liable even If he is unaware of the unauthorized use of the vehicle. The learned Judge relied on In re Abdul Salaam Rowther, AIR 1943 Mad 41, for the view that the word 'permit' carries with it the meaning that the person actually and knowingly allows the thing to be done.
The second case of this Court is the State v. Motllal AIR 1957 Raj 63. In that case Motilal was the Manager of the Mitra Bahudhandi Sahkari SamitI Ltd., Bundi, and the bus of the Samiti was checked on 11th July, 1953, on Bundi-Nainwa Road and It was found that the driver had no permit for plying the vehicle on the road. Themain point decided In that case was that the owner could be convicted under Section 123 read with Section 42 (1) of the Act. Observations were also made in that casa that no liability could be imposed on Motilal simply on account of his being the Manager but if it was proved that he was the person who was the incharge of the vehicle and if he was proved to have caused or allowed the Vehicle to be used in contravention of the provisions of Sub-section (1) of Section 42, he would be held liable under Section 123. The case was remanded to the trial court for taking evidence on that point and then for deciding it in accordance with law.
5. Mr. Amrit Raj has argued that both these cases and other cases on the same lines could be distinguished from the present case inasmuch as there was absolutely no permit for the truck in this case and it is a proper inference to be drawn from the absence of any permit that the owner of the truck had permitted or allowed use of the vehicle to Bhagwan Singh contrary to Section 42(1) and has thereby incurred liability under Section 123 of the Act. It is also contended that Section 123 casts vicarious liability on the owner if his servant or the agent is found using the vehicle contrary to the provisions of Section 42 (1) of the Act and in this case as Bhagwan Singh was found using the truck without a permit the owner is also liable for the act of Bhagwan Singh.
6. We proceed to examine first the question whether the language of Section 123 casts any vicarious liability on the master for the act of the servant. The leading case on this point laying down the principles of ascertaining whether such is the effect of statute is Mousell Bros. Ltd., v. London and North Western Railway Co., (1917) 2 KB 836. The test has been laid in the following words of Atkin J.:
'I think that the authorities cited by My Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the 'prohibition' or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom It would in ordinary circumstances be performed, and the person upon whom the penalty is imposed'.
7. In the present case the relevant part of Section 123 is as follows :
'Whoever causes or allows a motor vehicle tobe used . ...... without thepermit required by Sub-section 1 of Section 42 .... shallbe punishable..... '
8. The proper interpretation of the aforesaid provision is that the owner is liable if he caused or allows a motor vehicle to be used not otherwise. This means that the owner must commit an act leading to the inference that he allowed the use of the vehicle or he should be shown to have brought out that result by some illegal omission. Their Lordships of the Supreme Court in Hari Prasada Rao v. The State, AIR 1951 SC 204 approved the view taken by their Lordships of the Privy Council In Shrinivas Mall v. Emperor, AIR 1947 PC 135 that unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. In the case before their Lordships clause 22 ofthe Motor Spirit Rationing Order (1941) was under consideration. It provided that no person shall furnish motor spirit otherwise than in accordance with the provisions contained in the Order. Their Lordships further observed as follows :
'The clause is not aimed specifically against a supplier, but is general in its language, and will hit the Individual person, whether he be the supplier or not who contravenes the provision. The language of the clause also suggests that only the person who furnishes motor spirit contrary to the provisions of the Order will be affected by the contravention'.
9. Their Lordships took the view that the language of Clause 22 does not lend support to the contention that even an innocent master will be criminally liable for an act of his servant. If we examine the language of Section 123 of the Act we are led to arrive at the same conclusion. Section 123 (1) makes the driver of a motor vehicle and also any other person who causes or allows the motor vehicle to be used as mentioned therein liable. He may be owner or he may be any other person. Thus for establishing an offence under Section, 123 it must be proved that such person had caused or allowed the vehicle to be used. In the absence of such proof no conviction can be sustained. We are, therefore, of the opinion that Section 123 (1) does not cause any vicarious liability in the master for the act of the servant.
10. Now we proceed to examine the contention whether in a case in which there is no valid permit at all for the use of the vehicle and if the vehicle is found on the road the owner can be convicted on the ground that the vehicle could not have been brought on the road except by the express or implied permission of the owner. In an appropriate case such an inference may be drawn by virtue of Section 114 of the Evidence Act and the Court may presume that the vehicle was being used on the road by the express or implied permission of the owner regard being had to the fact that in the ordinary circumstances the vehicle must be deemed to be in the possession of the owner and that ordinarily the owner may be deemed to have taken proper precaution that the vehicle may not be put to use by anyone without his permission. The owner may have put the vehicle in-garage or the key of the engine of the vehicle may be with the owner. The accused may the show that the vehicle had come on the road without his express or implied permission. Again in an appropriate case the court may accept such an explanation of the accused without any proof on behalf of the accused for the same. We may make it clear that we are not importing the doctrine of burden of proof as enunciated in Section 106 of the Evidence Act in laying down the aforesaid principle. The doctrine enunciated in Section 106 of the Evidence Act should be seldom Imported in a criminal case against the accused as pointed out by their Lordships of the Supreme Court in Shambhu Nath v. state of Ajmer, (S) AIR 1956 SC 404.
11. The learned Advocate on behalf of the State has relied on the following observations of Lunkaran v. State, AIR 1959 Orissa 50.
'The present case differs from those classes of cases where a motor vehicle is plied without any valid permit at all. In those cases it may he reasonably inferred that the owner impliedly allowed the vehicle to be plied without a permit and thereby committed an offence under Section 123 of the Motor Vehicles Act'.
12. We may point out that the inference that the owner impliedly allowed the vehicle to be plied without & permit must be taken to have been drawn under the circumstances of that case under Section 114 of the Evidence Act. A court of law may draw or refuse to draw such Inference In a particular case.
13. Examined in this light we find that the trial court has not drawn any inference against Sita Ram, the owner of the truck In this case. The appellate court required evidence to prove that Sita Ram allowed the use of the truck and he has been acquitted on that ground. It would not be proper for us to interfere in this order of acquittal simply on the ground that we may find that this is a fit case in which such an inference should have been drawn. We, therefore, do not find any reason to set aside the order of acquittal of Sita Ram passed by the learned Sessions Judge. As already mentioned that the case of production of insurance certificate is not passed against both the accused on behalf of the Stale and thus the order of the Sessions Judge is maintained.
14. However, we find that the learned Magistrate has failed to record any finding with regard to Bhagwan Singh for offence under Section 123 of the Act. This may be taken to be an order of acquittal of Bnagwan Singh under Section 123 of the Act. Bhagwan Singh should have been convicted under Section 123 as he was driving the truck at the time when it was inspected by the constable Phut Singh. We, therefore, convict Bhagwan Singh under Section 123 of the Act. We sentence him to pay a fine of Rs. 50/- only; in default of payment of fine, we award him one week's rigorous imprisonment. The trial court is directed to enforce the order.
15. Both the appeals are decided accordingly. Appeal No. 248/1959 -- State v. Bhagwan Singh and Sita Ram is dismissed while Appeal No. 247/1959 --State v. Bhagwan Singh is allowed.