STATE Vs. RAGHAVAN PILLAI

JUDGEMENT

(1.) This appeal and Revision Petition arise out of C.C. No. 1095 of 1957 on the file of the Sub Magistrate of Quilon. The two accused persons, the first the owner and the second the driver, of Motor Lorry No. K.L.Q. 1885 were charged under S.123 (1) read with S.42 (1) of the Motor Vehicles Act (4 of 1939) the allegation being that, on 21-9-1957 the 2nd accused drove the lorry along a public road which was not among the routes authorised by its permit. When questioned under S.242 Crl. P.C.., both the accused admitted the offence and had no cause to show against conviction. They were accordingly convicted on their own plea, and the offence being admittedly not their first offence under the section, the learned Magistrate sentenced each of them to a fine of R.500/- which, in the terms of the proviso to the section, is, in the absence of special reasons, the minimum sentence. Both the accused appealed and, in appeal, the District Magistrate of Quilon confirmed the conviction and sentence passed against the 1st accused. At the same time he acquitted the 2nd accused on the score that a driver who is not also the owner of the vehicle in question cannot be guilty of an offence under S.123(1) of the Act. In doing so, he followed the decision in Bansraj v. State (AI R.1956 All. 27; 1956 Crl. L.J.6). The 1st accused has come up on revision while the State has appealed against the acquittal of the 2nd accused.

(2.) That the acquittal of the 2nd accused is bad and has to be set aside can admit of no doubt. Whatever might have been the position before the amendment of S.123 (1) by Act 100 of 1956 when it could have been argued that one person cannot contravene a provision which enjoins something not on him but on another - the section as it then stood, it will be noticed punished the contravention of the provisions of sub-s.(1) of S.42 which sub-section contains an injunction only against the owner so that it could be said that a mere driver, who is not also the owner, could not be guilty of a contravention of that sub-section, no such argument is available after the amendment. The amended section expressly states that any person driving a motor vehicle without the permit required under sub-s.(1) of S.42 or in contravention of any condition of such permit relating to the route on which the vehicle may be used is punishable. This makes it abundantly clear that notwithstanding that S.42 (1) places an obligation only on the owner, the driving of the vehicle by any other person, either without a permit or in contravention of the conditions of the permit, is an offence. This has been pointed out in a recent Division Bench decision of this Court in 1958 KLT 934 where, moreover, the view taken in Public Prosecutor v. Jevan (A.I. R.1)41 Mad. 845) that even under unamended section the driver is liable was preferred to the view taken in Bansraj v. State (A.I.R..1956 All.27).

(3.) We allow Crl. Appeal No. 44 of 1958, set aside the acquittal of the 2nd accused, and convict him under S.123 (1) read with S.42 (1) of the Motor Vehicles Act. With regard to the sentence, we think it proper to restore the sentence of a fine Rs. 500/- (with a default sentence of one months simple imprisonment) imposed by the trial magistrate and we accordingly restore it. This, as we have observed, is in the absence of special reasons, the minimum sentence under the proviso to S.123 (1). It has been urged before us that the 2nd accused is only a motor driver and must therefore be presumed to be poor, that he might have pleaded guilty in ignorance of the provision imposing a minimum sentence, and that this is a conviction recorded in an appeal against acquittal. And it is said that these would be special reasons justifying a lesser sentence. We cannot agree.