D Z PRABHU Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is a reference by the Addl. Ses-J. , Sholapur, recommending, on an appln. made to him by one Mr. Prabhu, that his conviction under Section 112, Motor Vehicles Act, 1939, and the sentence passed upon him should be set aside.

(2.) THE charge against the appct. was that on 11-8-1947, when he was serving as Police Inspector at Sholapur, he asked his orderly constable Yemnaji to drive his car from the Police Chowki to his bungalow. Yemnaji had no license. The appct. was, therefore, prosecuted for contravening the provisions of Section 5, Motor Vehicles Act, which provides that no owner or a person in charge of a motor vehicle shall cause or permit any person who does not possess a driving licence to drive the vehicle. The appct. pleaded not guilty to the charge. He denied that he asked Yemnaji to drive the car to his bungalow. He stated that Yemnaji had taken away the car on his own intiative without his knowledge. This defence was not accepted. The trying Mag. held that Yemnaji had driven the car under orders of the appct. He, therefore, convicted the appct. under Section 112, Motor Vehicles Act, and sentenced him to pay a fine of Rs. 30. The Addl. Ses-J. has now made a recommondation that the conviction of the appct. and the sentence passed upon him should be set aside, as the prosecution has not proved that the appct. knew that Yemnaji did not possess a driving licence.

(3.) SECTION 5, Motor Vehicles Act, provides that no owner of a motor vehicle shall "cause or permit" any person who does not possess a driving licence to drive the vehicle. This section corresponds to Section 6, Motor Vehicles Act, 1914, and in that section the word "allow" was used for the words "cause or permit," which occur in the present section. In Emperor v. Shantaram, 34 Bom. L. R. 897: (A. I. R. (19) 1932 Bom. 474: 33 Cr. L. J. 746), it was held that in order to support a conviction under Section 6, Motor Vehicles Act, 1914, the prosecution must show either express permission of the owner or facts from which the Ct. can properly infer an implied permission. In his judgment Beaumont C. J. referred with approval to the decision of the Calcutta H. C. in Varaj Lall v. Emperor, 51 Cal. 48 : (A. I. R. (11) 1924 Cal. 985 : 25 Cr. l. J. 1209), in which it was held that where a particular intent or state of mind is not of the essence of an offence, a master is criminally liable for the acts of his servant, which are expressly prohibited by statute, but he cannot be so made liable, if the statute provides for liabilty for permitting or causing a particular act, unless it is shown that such act was done with his knowledge and assent, express or implied. Before an owner of a motor vehicle can be convicted for contravening the provisions of Section 5 of the present Act, it is, therefore, necessary for the prosecution to show that the act was done with his knowledge and assent express or implied, that is that the oar was driven by a person, who did not possess a license, with his knowledge or with his assent. In this ease the prosecution has proved that the car was driven by Yemnaji under the orders of the appct. The appct. has, therefore, contravened the provisions of Section 5, Motor Vehicles Act.