STATE OF UTTAR PRADESH Vs. BANSRAJ:SRI VISHWANATH

JUDGEMENT

(1.) These two appeals involve a common question of law and may be disposed of by one judgment.

(2.) In Criminal Appeal No. 115/56 the respondent Bansraj, driver of a public carrier, of which he was not an owner, was found carrying 23 passengers instead of 6 allowed under the conditions of permit No. 42-926/ 123 granted to the owner. The vehicle was checked by a Head Constable who on counting the number of passengers found them to be 23. Bansraj respondent was prosecuted under S. 42 read with S. 123 of the Motor Vehicles Act (IV of 1939), as it existed at the date of the offence; (to be called the Act in this judgment). Bansraj respondent pleaded not guilty and stated that only six passengers were being carried. He was tried summarily by a First Class Magistrate at Gorakhpur and found guilty under S. 123 of the Act and sentenced to pay a fine of Rs. 200 and in default three months rigorous imprisonment. He went in revision to the Sessions Judge, Gorakhpur, and there it was contended that he was only a driver and therefore could not be convicted under S. 123 of the Act. The learned Judge accepted that contention and being of the opinion that a mere driver could not be so convicted, he recommended the case to the High Court under S. 438 of the Criminal Procedure Code. The matter came up as Criminal Reference No. 359/52 before Mukherji J., who referred it to a Division Bench and was heard by Desai and Upadhya JJ. The interpretation which the High Court put on S. 42 (1) was that under the Section it was the owner alone who was interdicted from using or permitting the use of the vehicle save in accordance with the conditions of a permit and therefore if the vehicle was used against the conditions of the permit, no one else, including the driver, could be guilty under S. 123 of contravention of the terms of the permit.

(3.) The reference was therefore accepted and the conviction and sentence of the respondent was set aside. The State has come up in appeal pursuant to special leave against the judgment and order of the High Court of Allahabad.