STATE OF MAHARASHTRA Vs. BALASAHEB BABURAO SHIRKE

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal passed by the Judicial Magistrate, First Class, Satara, in Criminal Case No. 949 of 1955. The accused Balasaheb Baburao Shirke was charged before the learned Magistrate for offence under Section 42 (1) read with Section 133 and under Sections 22 (1) and 38 (1) read with Section 112 of the Motor Vehicles Act. It was the case of the prosecution that the accused, who was a driver of motor vehicle No. BMW 3134, drove the vehicle with six adults and two children from Parali to Satara, a distance of seven miles, having agreed to receive from each of the passengers six annas as fore for the journey and had thereby contravened the provisions of Section 42 (1) read with Section 123 and Sections 22 (1) and 38 (1) read with Section 112 of the Motor Vehicles Act. At the trial, three witnesses were examined for the prosecution. They were J. S. Ankale, a Survey Mamlatdar, Pandurang Shantaram Karkhanis, resident of Satara, who had gone to Parali, and S. N. Sohani, Inspector of Motor Vehicles. Mr. Ankale stated that he entered the vehicle driven by the accused from Parali and it was his 'understanding' that he was to pay the fare at Satara after completion of the journey. In cross-examination he admitted that he had no talk with the driver till the vehicle was stopped by the Motor Vehicle Inspector. Mr. Karkhanis stated that he had agreed, to pay six annas as fare and that he offered to pay the fate to the driver when he entered the vehicle, but the driver told him that he would take the fare after reaching Satara. Mr. sohani deposed that he had stopped the motor vehicle driven by the accused for 'checking purposes' and he found six adults and two children beside the driver in the vehicle and that the passengers had contracted to pay six annas as fare for the journey from Farali to Satara. The accused denied having committed any offence. The learned Magistrate was of the view that the accused had not accepted any hire, even though there was an agreement to pay hire. He, therefore, held that no offence was committed under Section 42 read with Section 123 of the Motor Vehicles Act because the fare was not accepted by the accused. The learned Magistrate also expressed the opinion that even if the agreement to accept the fare amounted to a breach of the provisions of Section 42 read with Section 133 of the Motor Vehicles Act, the accused could not be convicted, because he was a driver of the vehicle and not the owner thereof, on the view taken by him, the learned Magistrate acquitted the accused and against that order the State of Bombay has appealed.

(2.) SECTION 42 of the Motor Vehicles Act which occurs in Chapter IV dealing with control of transport vehicles, provides, in so far as it is material:

(3.) THERE is no dispute that this vehicle was driven by the accused on the relevant date, it is also found by the learned trial Magistrate that the passengers had agreed to pay fare for the journey. Even if there was no agreement to pay fare for the journey the vehicle being a goods vehicle, which could not be used as a vehicle for transport Of passengers, a breach of the terms of Section 42 was committed. Section 42 (1) undoubtedly imposes an obligation only upon the owner and upon no one else, to use or permit the use of the vehicle in ac- cordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority. But Section 123 penalises every person who drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in contravention of the provisions of sub-section (1) of Section 42. The language used in Section 123 (1) is very much wider than the language used in Section 42 (1 ). Whereas Section 42 (1) imposes an obligation upon the owner of a vehicle not to use or permit to be used the vehicle save in accordance with the conditions of a permit, Section 123 (1) penalises every person, be he a driver or an owner driving, using or letting out the vehicle for use in contravention of the provisions of Sub-section (1) of Section 42. The accused being a driver of the motor vehicle committed a breach of the law in driving the vehicle in contravention of the provisions of Section 42 (1) and he must, therefore, be regarded as having incurred the penalty provided in Section 123 (1),