1. This rule was directed against an order made on 17th November 1930, by the Additional Presidency Magistrate whereby the petitioner, H. B. Spiers, was convicted under Sections 16 and 17, Part 2, Motor Vehicles Act, and sentenced to pay a fine of Rs. 40.
2. The rule was issued on three grounds. The first one was that the conviction was without jurisdiction and illegal inasmuch as Sections 16 and 17, Part 2, Motor Vehicles Act, do not apply to the facts of the case. It appears that the offence with which the accused was charged was really an offence under Section 5 and Section 16 deals with offences for which no penalty has been specifically provided. Section 5 is however not one of such offences. The offence which is contemplated in this section has been made punishable by the section itself with a fine of Rs. 500. There is no doubt therefore that the sections which were mentioned in the charge were not applicable to the facts of the case. But it was not, by a reference to the numbers of sections alone, that the accused was called on to meet the case set up by the prosecution. The case which the accused was called on to meet was a case of negligently driving a private car No. 27,834, along the dockyard road leading towards 28 Coal Berth by the right side and thereby colliding with a taxicab No. T-621. The accused therefore knew full well what the charge he would have to meet was and that being so if there was any mistake in the number of sections of the Act the accused cannot be said to have in any way been prejudiced thereby. Ground 1 must therefore in my opinion, fail for the reason that it is too technical.
3. The rule however must succeed on the other grounds. The learned Magistrate in his order says that he accepted the evidence of witness White. The evidence of this witness would show that there was at the time no space on the left side for the car. His evidence no doubt shows also that the space on the right was very narrow. But if one is to accept the statement of the driver of the cab, one gets the fact that the taxi driver stood still at the time. If under these circumstances, the petitioner tried to pass by the right side of the taxi cab with the result that there was a collision for the reason that the space on the right side was not sufficiently wide for his car, there was nothing but an error of judgment on the part of the petitioner. And this is what the learned Magistrate has also found. According to him, it was an error of judgment which led to the occurrence complained of. Bat to convict a man, an error of judgment alone would not be sufficient. There must be criminal negligence' and 'criminal negligence' has in more than one judicial decision been held to mean ''gross or culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, was the imperative duty of the accused person to have adopted: see Emperor v. Idu Beg  3 All.776 and H. W. Smith v. Emperor A.I.R. 1926 Cal. 300.'
4. I am therefore of opinion that on the facts of the case, and on the facts as found by the learned Magistrate, a conviction of the petitioner for negligent driving cannot be maintained. The result therefore is that the rule is made absolute.
5. The conviction and sentence are set; aside. The fine, if it has already been realized, shall be refunded to the petitioner.