STATE OF GUJARAT Vs. GOPICHAND HARDASMAL

JUDGEMENT

(1.) This Criminal Reference raises a short question regarding the construction of section 84 of the Motor Vehicles Act 1939 the accused who is a driver of an auto-rickshaw was charged for offences punishable under sections 84 and 86 read with section 112 of the Motor Vehicles Act 1939 in the Court of the Judicial Magistrate First Class Ahmedabad. The charge against the accused for the offence under section 84 read with section 112 was on the allegation that he allowed the auto rickshaw to remain stationary in a public place without there being in the drivers seat any person duly licensed to drive the auto-rickshaw. The charge under section 86 read with section 112 was for not showing the licence on demand but I am not concerned with that charge since the accused was acquitted of the same. Before the learned Magistrate; the prosecution led evidence to show that at 11.00 A. M. on 24th December 1960 the auto-rickshaw of the accused was lying unattended at the Railway auto-rickshaw stand and that there was no person in the drivers seat duly licensed to drive the auto-rickshaw. The prosecution did not lead any evidence to show whether a brake or brakes were applied or any other measures were taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver. The accused also did not lead any evidence in defence. On this evidence the learned Magistrate found that the accused had contravened the provisions of section 84 and was therefore guilty of the offence punishable under section 84 read with section 112 The learned Magistrate took the view that the burden of proving that a brake or brakes were applied or other measures were taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver was on the accused and that since the accused had failed to discharge the burden which lay upon him the contravention of the provisions of section 84 was established as soon as the prosecution showed that the auto-rickshaw was allowed by the accused to remain unattended in a public place. The learned Magistrate accordingly convicted the accused of the offence under section 84 read with section 112 and sentenced him to pay a fine of Rs. 20/or in default to suffer simple imprisonment for seven days.

(2.) The accused being aggrieved by the order of conviction and sentence passed against him filed a Revision Application in the Court of the Sessions Judge Ahmedabad. The learned Sessions Judge took the view that on a true construction of section 84 it was not enough for the prosecution to show that the person driving or in charge of the auto-rickshaw had caused or allowed the auto-rickshaw to remain stationary in a public place but that it was necessary for the prosecution to go further and to show that neither there was in the drivers seat a person duly licensed to drive the auto-rickshaw nor had the mechanism been stopped and a brake or brakes applied or other measures taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver. The learned Sessions Judge was of the opinion that the burden of proving that there was no person in the drivers seat duly licensed to drive the auto rickshaw and that the mechanism had not been stopped or a brake or brakes had not been applied and other measures had not been taken so as to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver was on the prosecution and that since the prosecution had failed to prove in the present case that a brake or brakes had not been applied and no measures had been taken to ensure that the auto-rickshaw could not accidentally be put in motion in the absence of the driver the contravention of the provisions of section 84 could not be said to have been brought home to the accused and the accused could not therefore be convicted of the offence under section 84 read with section 112. The learned Sessions Judge accordingly made the present Reference to this Court recommending that the order of conviction and sentence passed against the accused be set aside and the accused be acquitted of the offence under section 84 read with section 112.

(3.) The question which arises for consideration in this Criminal Reference therefore turns on the true interpretation of the provisions of section 84 which is in the following terms :-