Amaresh Roy, J.
1. In this case upon an application for Revision of an order of conviction and sentence of fine imposed upon the petitioner, a Rule was issued to show cause why that order of the learned Presidency Magistrate should not be set aside and by the same order the accused petitioner also wasdirected to show cause why the sentence imposed upon him by the learned Magistrate should not be enhanced, if his conviction is upheld. By the effect of that Enhancement Rule, under Sub-section (6) of Section 439 Cr. P. C. (petitioner?) has been entitled to show cause against his conviction. At the hearing of this case the learned advocate for the petitioner, Mr. Dilip Dutt has exercised that right and has argued the case on all aspects, both of fact and of law with commendable ability and acumen.
2. Facts that have given rise to this case is a simple story that on November 13, 1962 at 6 P. M. this Petitioner was driving State Bus No. W. B. S. 981 along Upper Circular Road (now named Acharya Prafulla Chandra Road) towards north from south. Near the function of that road with Gray Street he overtook a Tram Car No. 101 proceeding in the same direction, by Its left when the said Tram Car had stopped at a Tram Stop for setting down and taking on passengers, in such a manner which was dangerous to the public. On these allegations the petitioner was tried on a charge under Section 116 of the Motor Vehicles Act.
3. Mr. Dilip Dutt has raised several points for showing that the order of conviction should not be sustained. He first points out that the accused in this case was not charged for violation of Regulation (3) of Tenth Schedule of Motor Vehicles Act, 1930, but he was charged under Section 116 of that Act. The distinction between those two provisions of law on which Mr. Dilip Dutt relies on is that by the effect of the proviso to Reg (3) Tenth Schedule to pass on the left side a tram car, which when in motion would be travelling in the same direction as himself, while the tram car is at rest for the purpose of setting down or taking up passengers is 'per se' an offence by a driver of a motor vehicle, which may be punishable under Section 112 without reference to such act being either in fact dangerous to public or other users of the road or being such is to cause danger or inconvenience to such other persons) but Section 116 of the Act makes it an offence to drive a motor vehicle at a speed or in a manner
'which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place'.
The learned Advocate therefore contends that for convicting the petitioner under Section 116 M. V. Act it was necessary for prosecution to bring evidence and prove and for the learned Magistrate to find
(1) the act is dangerous to the public
(2) all the circumstances, including
(a) the nature, condition and use of the place
(b) amount of traffic actually at the time or
(c) might reasonably be expected
He argued that on these points there was hardly any evidence adduced by prosecution and there is no finding at all by the learned Presidency Magistrate in his order by which he has convicted the petition or.
4. I have given very serious consideration to this point that it deserves and I have no hesitation in agreeing generally with the interpretation of lawput by Mr. Dutta on the two provisions above mentioned. Careful examination of the whole Regulation in 10th Sch. of the M. V. Act shows its distinction from the provision in Section 116 of the Act. The 10th Sch. has been framed under Sections 77 and 78 of the Act.
(4a) Section 78 is in these terms:
'Duty to obey traffic signs.-- (1) Every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by a (mandatory) traffic sign and in conformity with the driving regulations set forth in the Tenth Schedule, and shall comply with ail directions given him by any police officer for the time being engaged in the regulation of traffic in any public place.
(2) In this section 'mandatory traffic sign' means a traffic sign included in Part A of the Ninth Schedule, or any traffic sign of similar form (that is to say, consisting of or including a circular disc displaying a device, word or figure and having a red ground or border) erected for the purpose of regulating motor vehicle traffic under Sub-section (1) of Section 75.'
A driver who drives a motor vehicle in violation of any Regulation in Tenth Schedule therefore would be contravening that provision in the Act and would come within the mischief of Section 112 of the Act, maximum punishment under which section is a fine of Rs. 100/- for the first conviction and Rs. 300/-for any other conviction after the first. Regulations in Tenth Schedule of the M. V. Act embody the rules for driving motor vehicles. They are not mere formalities but are essential measures for safety of users of the road that call for implicit obedience and also strict vigilance by Police to bring to book any one who violates it. Yet one going about the street in this city and also outside, may see blatant violations of these Regulations with impunity and non-chalance not unoften in presence of Police Constables and higher officers of Police. While every Regulation in Tenth Schedule is important, for the purpose of this case, Regulations 2 and 3 are of particular relevancy. They are in these terms:
'2. Except as provided in regulation 3, the driver of a motor vehicle shall pass to the right of all traffic proceeding in the same direction as himself.
3. The driver of a motor vehicle may pass to the left of a vehicle the driver of which having indicated an Intention to turn to the right has drawn to the centre of the road and may pass a tram-car or other vehicle running on fixed rails, whether travelling in the same direction as himself or otherwise, on either side:
Provided that in no case shall he pass a tram-car at a time or in a manner likely to cause danger or inconvenience to other users of the road or pass on the left hand side a tram-car, which, when in motion would be travelling in the same direction as himself, while the tram-car is at rest for the purpose of setting down or taking up passengers.' Effect of Regulations 2 and 3 taken together summarised for clear understanding appears to be:
(1) Overtaking a vehicle moving in the same direction by the left of that vehicle is generally prohibited;
(2) Such overtaking by left is permissible in the case of a motor vehicle mentioned in first partof Regulation 3 and also tram car or other vehicle remaining on fixed rails;
(3) Passing a tram car or, either side is prohibited at a time or in a manner likely to cause danger or inconvenience to other users of the road (pedestrian or vehicular);
(4) Passing by left of a tram car. at rest for the purpose of setting down or taking up passenger, is absolutely prohibited.
5. That absolute prohibition mentioned last is irrespective of either existence in fact or even likelihood of danger or inconvenience to the public in general or other users of the road, either pedestrian or vehicular. Its distinction from the provision of Section 116 of the Act appears from the terms of that section which is quoted below:
'Driving recklessly or dangerously.--Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable on first conviction for the offence with imprisonment for term which may extend to six months, or 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 imprisonment for term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.'
6. The larger punishment provided by Section 116, not only of the amount of fine but also imprisonment provided by that section in comparison to that in Section 112, clearly indicates that such distinction in punishment has been made for the reason that when the act constituting the offence 'is dangerous to the public', law contemplates heavier punishment than when such act is only a violation of the Regulations in Tenth Schedule, but existence or likelihood of such danger is not alleged or proved.
7. Mr. Dilip Dutt is, in my view, right in contending that when the accused is tried on charge under Section 116 it is incumbent on the prosecution to prove all the elements required by that section, and it is of greatest importance that the Magistrate shall arrive at finding on such essential elements as would enable him to convict the accused under that section. If however an element to constitute the offence under Section 116 is not proved and is not found by the Magistrate, but the other elements proved and found would constitute violation of a Regulation in 10th Sch. which will be an offence punishable under Section 112 of the Act, it is within the power of the Magistrate to convict the accused of that lesser offence as he 15 authorised to do so by Section 238 Cr. P. C.
8. That such is the correct position in law has been acceded to by the learned advocate representing the State. With the assistance of the learned advocates for both the parties, I have examined the evidence in the case. It appears that existence of danger to the public has been definitely alleged in this case. The accused was therefore properly tried on a charge under Section 116 M. V. Act.
9. P. W. 1 and P. W. 2 both are competent witnesses on that point, the first being the Sergeantof Calcutta Police who was an duty at the road junction where the occurrence took place and the second being the Conductor of the Tram Car, that had stopped there for the purpose of setting down and taking on passengers. Both of them have provided dear evidence that the act of the accused person did cause danger to the public. So the State Bus was driven by the accused person not only in violation of Regulation 3 of 10th Sch. but also in a manner which is dangerous to public as required by Section 116 M. V. Act.
10. Regarding the circumstances relevant for the purpose of Section 116, these two witnesses for the prosecution and also D. W. 1 who is also a conductor attached to Rajabazar Tram Depot. provided the evidence that:
'(1) The road at the place is about 35 or 40 ft. wide and the tram line is nearer to the western footpath than the eastern; the width between western footpath and the tram line is about 15 or 20 ft, so as to allow only one vehicle to pass. There is some divergence in evidence regarding the width of the road at the place; but that is not material in the present case because whatever the width danger will arise to persons on western footpath intending to board the tram car and to persons going to that footpath after alighting from the tram car.
(2) There were other traffic on the part of the road at the time.
(3) The place is near a bazar and therefore is likely to be a crowded place always.
(4) The time was 6 P. M. on 13th November 1962 a Tuesday, when there was likely to be a rush of persons returning to their homes after closing of offices and workshops. It was more than an hour after sunset and shadow of the evening would be thickening to darkness of the night'
The nature, condition and use of the road appear from the above circumstances and also from the fact of location of the place which is an important road junction on one of the busiest main roads in the city of Calcutta and in one of its most populated area. The totality of the circumstances therefore heighten the gravity of the offence that the act of the accused constituted. Mr. Dilip Dutt is therefore not right when he says that there is no evidence on those points.
11. It is true however that the learned Presidency Magistrate's order does not show that these matters were considered and there is no finding in that order that the act of which he found the accused guilty 'is dangerous to the public' as required by Section 116. The learned Magistrate has dealt with the case as if he was trying the accused on a charge under Section 112 M. V. Act for violation of Reg. 3 of 10th Sch. and not under Section 116 of the Act. To that extent the criticism of the order by Mr. Dilip Dutt is justified. The learned counsel for the State Mr. Bagchi had to concede that neither the authorities that launched the prosecution nor those who conducted the case before the learned Magistrate appear to be either familiar with the particular provisions in the M. V. Act or aware of the distinction between Regulation 3 of 10th Sch. and Section 116 of that Act, to which the attention of the learned Magistrate not having been drawn, findings on the material points are lacking In the order although there were clear and sufficient evidence which have been accepted by the learned Presidency Magistrate.
12. The offence by violation of Driving Regulations which would come within the mischief of Section 116 or Section 112 M. V. Act has three characterislics First, it is an offence that tends to affect life and limbs of the users of the road and is not merely an offence affecting property, or morality, or public peace and order. In this characteristic it is not at all a 'petty case' as would justify only a summary trial and easy conviction and small sentence. Second, such offences are easy to allege but often difficult to find clear evidence on. Magistrates trying such cases have to be particularly careful in taking and considering evidence on all the elements of the offence, and complicity of the accused in it to ensure that an innocent person may not be convicted on insufficient evidence or finding and also that a guilty person does not escape just and adequate punishment. Third, by the speed and opportunity to escape detection in a crowded city or lonely road in a wide country, all delinquents are not brought before the courts. When therefore clear evidence on all elements of the offence are produced as would be sufficient to convict the accused before the court, not only proper finding on all those elements should be recorded but also punishment awarded should be sufficient, as much to be adequate for the offence of that accused, as to be deterrent to other delinquents who may have escaped detection after committing similar acts in the past and who are likely to be prospective delinquents of similar nature in future. Deterrent character of punishment for criminal offence is a large part of the theory of punishment on which our penal laws and criminal jurisprudence are based, I am unhappy to see that in this case all these considerations have escaped the learned Presidency Magistrate, as they generally do also in other cases of similar nature tried by other competent Magistrates.
13. Another point urged by Mr. Dilip Dutt with equal force and cogency is based on Section 131 of the Motor Vehicles Act. That section reads:
'No person prosecuted for an offence punishable under Section 115 or Section 116 shall he convicted unless-
(a) he was warned at the time the offence was committed that the question of prosecuting him would be taken into consideration, or
(b) within fourteen days from commisiion of the offence a notice specifying the nature of the offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or the person registered at the owner of the vehicle at the time of the commission of the offence, or
(c) within twenty-eight days of the commission of the offence, a summons for the offence was served on him:
Provided that nothing in this section shall apply where the Court is satisfied that-
(a) the failure to serve the notice or summons referred to in this sub-section was due to the fact that neither the name and address of the accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time, or
(b) such failure was brought about by the conduct of the accused.'
By its terms, this section would not have applied if this case had been a prosecution for an offence under Section 112; but it being a trial on a charge under Section 116 M.V. Act, this section is undoubtedly attracted.
14. In the present case evidence was brought by prosecution that after the incident was reported to the police authorities in Calcutta an entry in Traffic Case Book was made, true copy of which is Ex. 3 on the record. It shows at its page S under the heading:
'13. (b) (ii)--Despatch No, of issues of Section 131(b)notice or extract.'
an entry saying 'on 19-11-62'
P. W. 3 proved this document and also said
'A warning notice mentioning the extract of the charge was sent to the Directorate Transport Corporation for supply of the particulars of the driver under Section 131/88 M. V. Act on 19-11-62 and in pursuance of the notice this reply Ext. 4 was received by us from the State Transport Corporation on 19-2-63.'
15. Mr. Dilip Dutt has not disputed that State Transport Corporation is the owner of the vehicle W. B. S. 981, nor that a notice to Directorate of Transport would satisfy Section 131, but he has contended on that state of evidence that it has not been shown that Section 131 has been complied with and therefore no conviction under Section 116 M. V. Act should have been made. His argument is that there is no evidence of any warning as mentioned in Clause (a) of Section 131 and summons in the case was served on the accused in September 1963, not within 28 days of the commission of the offence as required by Clause (c) of that section; nor is there any evidence to satisfy either part of the proviso. Therefore only relevant part in this case is Clause (b) which according to Mr. Dutt requires that within 14 days a notice shall he
(i) served on the accused or the registered owner of the vehicle personally or
(ii) served on the accused or the registered owner by registered post.
16. In that reading of the section, prosecution has to show that the notice, either served personally or sent by registered post had reached the accused or the registered owner of the vehicle within 14 days of the commission of the offence. Correct reading of the Clause (b) of Section 131 does not bear that meaning. By true construction, prosecution has to show that the notice was either served personally on the accused or the registered owner within 14 days or was sent by registered post to either of them within 14 days. In the present case however it is not the prosecution case or evidence that notice under Section 131 was sent by registered post either to the accused or the registered owner of the vehicle. Evidence provided by P. W. 3 is that it
'was sent to the Directorate Transport Corporation for supply of the particulars of the driver under S. 131/88, M. V. Act on 19-11-1962.' Mr. Dutta tried to read that as bearing the meaning that it is evidence of sending only and does not show when it reached the owner, because another witness P. W- 4 was asked in cross examination and said 'I cannot say when notice was received by us from the police.'
17. Two features in record need be noticed. One is that P. W. 3 was not asked that question. In fact defence did not cross-examine P.W. 3 at all. It was declined. The other is that in the summons in obedience of which P.W. 3 came with documents, there was specific mention of 'Receipt book of despatch section in which extract of copies was served on owner of W. B. S. 981.' That shows that prosecution was prepared to prove the actual date of service of the notice by proper document. Yet we find that the document was not proved or marked as an exhibit. To my mind the obvious reason is that the language employed by P, W. 3 (which I have quoted above) was understood by all concerned, including the defence, that it meant 19th November. 1962 as the actual date of service of that notice under Section 131, Motor Vehicles Act, which meaning that language may very well bear. That is why P. W. 3 was not asked any further question about actual service of the notice and was not cross-examined at all. P. W. 4 who is a mere starter at the Paikpara Depot of the State Transport is not a person who could be expected to know the actual date of service of notice to the Directorate of Transport. So his negative answer obtained in cross-examination cannot be construed as 'negative evidence on that point for positive inference that the notice was not served on the owner of the vehicle within time required by Section 131, M. V. Act. The fact that the notice spoken of by P. W. 3 was served is clearly proved by the reply Ex. 4. That taken in conjunction with evidence furnished by P. W. 3 provides the safe basis for finding that the notice had reached the owner of the vehicle within 14 days from 13th November, 1962 even if what P. W. 3 said is taken to mean only the fact of sending and not of actual reaching of the notice in the hands of the owner. Mr. Dilip Dutt's contention in this respect must therefore, fail.
18. I therefore hold that conviction of the accused person under Section 116 of the M. V. Act has been legally and properly made by the learned Magistrate on the basis of his acceptance of the truth of prosecution evidence before him, though he has omitted to record an express finding that the accused had driven the State Bus in the manner which is dangerous to the public. I have already held it was so. The rule against conviction is, therefore, discharged.
19. In the rule for enhancement of sentence the question arises whether the quantum of fine imposed by the learned Presidency Magistrate is adequate punishment by the standards above discussed. If the conviction had been for an offence under Section 112, M. V. Act for violation of Regulation 3 of 10th Sch. without his act being dangerous to the public, even then he would well deserve the maximum sentence of fine of Rs. 100 under that section for his first conviction, and in addition an order under Section 17. M. V. Act would be proper to make.
20. Section 17 of the Motor Vehicles Act by its Sub-section (1) provides
'Where a person is convicted of an offence under this Act, or of an offence in the commission of which a motor vehicle was used, the Court by which such person is convicted may, subject to the provisions of this section, in addition to imposingany other punishment authorised by law, declare the person so convicted to be disqualified, for such period as the Court may specify, for holding any driving licence or for holding a driving licence to drive a particular class or description of vehicle.'
Sub-sections (2), (3) and (4) of that section provide for the exceptional cases when a Court shall and shall not order disqualification. Section 116 is not within the negative exceptions; Sub-section (6)(a) clearly shows that conviction for an offence under Section 116 is within Sub-section (1); and Sub-section (5) provides that
'(5) A Court shall, unless for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of an offender- (a) who having been convicted of an offence punishable under Section 116 is again convicted of an offence punishable under that section.'
These provisions in Section 17 are clear indications that the legislature has given power to the Court to make the award of punishment really and effectively deterrent and also enacted that in certain cases Court must make such order. No Court, therefore, can ignore Section 17 altogether and consideration must be devoted wherever that section is applicable.
21. There is no previous conviction under Section 116, M. V. Act proved in this case against the Petitioner and on this first conviction under Section 116, such order under Section 17 (1) 'is' discretionary. I am definitely of the view that in the present case an order for disqualification for a period of six months is the minimum that would be proper, adequate and really deterrent punishment in addition to the punishment of fine of Rs. 100.
22. I therefore uphold the order of convictionof the petitioner under Section 116, M. V. Act passed bythe learned Presidency Magistrate and I modify thesentence awarded by him by enhancing it imposing a fine of Rs. 100 in default to undergo R. I.for 3 months and in addition to imposing thatfine I declare the petitioner Gour Garai to be disqualified, for a period of six months from 15thFebruary, 1964, for holding any driving licenceunder the Motor Vehicles Act, 1939. I direct thePresidency Magistrate to make proper endorsementupon the driving licence of Gour Garai underSection 19(1) of that Act. The rule is disposed ofaccordingly.