STATE Vs. K KESAVAN

JUDGEMENT

(1.) This appeal arises out of an unsuccessful prosecution under the Motor Vehicles Act (Act IV of 1939). On 14-3-1957. Pw. 1, the Sub-Inspector of Police at Neeleswar, checked the lorry, M. D. C.-3655, at the fourth mile stone on the Neeleswaram - Parappa road. It was then found that the first accused, who was driving the lorry, was not in possession of a permit authorising the lorry to be taken along the road. It is stated that inspite of the notice, Ext. PI served on him by Pw. 1 calling upon him to produce the permit within 10 days, he failed to do so. The allegation against the 2nd accused is that he allowed the first accused to ply the lorry along the Neeleswaram - Parappa road without a permit. On these allegations, both the accused were prosecuted for the offence under S.123(1) read with S.42(1) of the Motor Vehicles Act. The case against them was tried as Calendar Case No. 267/1957 on the file of the Sub-Magistrates Court at Hosdrug. The accused pleaded not guilty to the charge against them. The prosecution examined Pws. 1 and 2 and produced Ext. PI, copy of the notice dated 14-3-1957 issued to the first accused by Pw. 1. The learned Magistrate after considering the evidence in the case found that the prosecution has failed to make out the offence against accused 1 and 2 and accordingly acquitted both of them. The acquittal of the 2nd accused has not been challenged. But the State has preferred this appeal against the Magistrates order acquitting the first accused.

(2.) The main attack against the judgment of the learned Magistrate is that he has erred in his view that a person who drives a motor vehicle without a permit will come within the mischief of S.123 of the Motor Vehicles Act, only if he is also the owner of the vehicle. In support of such a view taken by the Magistrate, he has cited the decision in Bansraj v. State (AIR 1956 All. 27) and has refused to follow a contrary view taken by the Madras High Court in Public Prosecutor v. Jevan ( AIR 1941 Mad. 845 ). Till recently the Malabar area where the present case arose, was within the jurisdiction of the Madras High Court. Naturally, therefore, the Sub-Magistrate at Hosdrug was bound to follow the decision of the Madras High Court irrespective of any consideration that on the identical question a different view has been taken by a different High Court Apart from this aspect of the matter, we think that on a proper construction of the relevant section of the Motor Vehicles Act, the view taken in AIR 1941 Mad. 845 has to be accepted as the better view. At the time of the decision in that case and also at the time of the decision in AIR 1956 All. 27, sub-S. (1) of S.123 of the Motor Vehicles Act stood in the following terms:

(3.) The above discussion on the true scope of S.123 of the Motor Vehicles Act is only of academic interest so far as the present case is concerned. The offence for which the accused in this case were prosecuted, was alleged to have been committed on 14-3-1957. Long before that date, sub-s.(1) S.123 of the Motor Vehicles Act, as it stood at the time of the decisions cited above, had undergone very drastic changes as per the amendment made by Act 100 of 1956. Sub-s.(1) of S.123 as amended runs as follows: