HARI GOPAL AND ANR Vs. STATE

JUDGEMENT

(1.) This is a reference Under Section 438 of the Code of Criminal Procedure by the learned second Temporary Civil and Sessions Judge of Banaras.

(2.) Hari Gopal, the driver, and Sheonath Das, the conductor, of Bus No. UPL 1682 S.C., have been convicted by a learned Magistrate, first class, of Banaras. Sheonath Das has been convicted Under Section 123 of the Motor Vehicles Act (IV of 1939) and sentenced to pay a fine of Rs. 15/- on the ground that the motor vehicle, when checked, was found carrying 49 passengers instead of 38 which was the maximum permissible strength. Against Hari Gopal three convictions have been recorded as follows:

(3.) The learned Judge did not believe the evidence produced by the prosecution for proving that there were 49 passengers in the bus, and this is one of the grounds on which he wants the conviction to be set aside. I am afraid this ground cannot be accepted as a valid ground. No appeal lay to the learned Judge and in the revision which he was hearing he should have accepted the finding of fact recorded by the learned Magistrate. This finding was based on evidence. The learned Judge could not convert himself from a court of revision to a court of appeal, and this reference, in so far as it purports to be based on the difference of opinion about the value of oral evidence between the learned Judge and the learned Magistrate cannot be entertained.