BANSRAJ Vs. STATE

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, Gorakhpur, recommending that the conviction of the applicant Bansraj under Section 123 read with Section 42 of the Motor Vehicle Act be set aside. The prosecution case is that Bansraj, a driver, was found carrying 23 passengers in a public carrier while the permit allowed him to carry only 6 passengers in that vehicle. The Magistrate found him guilty and sentenced him to a fine of Rs. 200/-, and in default to undergo rigorous imprisonment for a period of three months under Section 42 read with Section 123 of the Motor Vehicles Act. It was urged before the Sessions Judge that the applicant being a driver could not be convicted under the said provisions. Section 42(1) of the Motor Vehicles Act runs as follows ;

(2.) In -- "Jagroop v. Rex', (A), mentioned above my brother Desai J., expressed the opinion that under Section 42 (1) of the Motor Vehicles Act.

(3.) As against these two cases there are a series of authorities in which the view taken is that a driver who drives a motor vehicle not in accordance with the permit issued, acts in contravention of the provisions of Section 42 (1), and is liable to be convicted. The first case to which my attention has been invited is a single Judge decision re-ported in -- 'Public Prosecutor v. Jevan', AIR 1941 Mad 845 (C). The judgment in that case is rather very short. The learned Judge held that the driving of a transport vehicle on the public road without a permit would certainly contravene Section 42 (1) of the Act and the fact that the permit is to be obtained by the owner would not make any difference. The learned Judge's attention was not invited to the fact that while Section 42 (1) laid down that the owner shall not use or allow the use of the vehicle save in accordance with a permit it said nothing about persons other than the owner. He did not therefore consider the question as to whether there could be any violation of Section 42(1) by a person other than an owner. The next case is a Division Bench case of the Nagpur High Court reported in -- 'Provincial Govt. C. P. & Berar v. Mohanlal Keshap Lal', AIR 1944 Nag 89 (D). In that case the learned Judges held that while Section 42 (1) applies only to the owner of transport vehicles Section 123 applies to any one who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 42 (1), and that Section 123 is much wider than Section 42 (1), and the view taken was that the provisions mentioned in Section 42 (1) are the conditions of the permit granted by the Regional Transport Authority, and if the vehicle is driven by anybody in contravention of the conditions of the permit a liability under Section 123 (1) is incurred. In this decision also no reason has been given for taking the view that Section 123 is wider in its scope than Section 42 (1). With great respect, I am unable to agree that Section 42 (1) lays down the conditions of the permit granted. Section 42 (1) only makes it necessary for every owner of a vehicle to obtain a permit and not to use it or allow it to be used save in accordance with the permit. The learned Judges have not discussed as to how the penalty provided by Section 123 could be imposed on a person who is not required to do or abstain from doing anything under Section 42 (1) specially when Section 123 specifically says that the contravention of Section 42 (1) is essential to constitute the offence. A learned Judge of the Punjab High Court had occasion to consider these provisions in a case reported in -- 'Teja Singh v. State', AIR 1952 Punj 45 (E), and observed: "Prima facie section 42 is designed to punish the owner of a transport vehicle who uses or permits the use of the vehicle in contravention of the conditions of the permit while Section 123 is designed to punish the person who drives or causes or allows a motor vehicle to be used in contravention of the conditions of the permit.