GOUR CHANDRA GARAI Vs. STATE

JUDGEMENT

(1.) In this case upon an application for Revision of an order of conviction and sentence of fine imposed upon the petitioner, a Rule was issued to show cause why that order of the learned Presidency Magistrate should not be set aside and by the same order the accused petitioner also was directed to show cause why the sentence imposed upon him by the learned Magistrate should not be enhanced, if his conviction is upheld. By the effect of that Enhancement Rule, under Sub-section (6) of Section 439 Cr. P. C. (petitioner?) has been entitled to show cause against his conviction. At the hearing of this case the learned advocate for the petitioner, Mr. Dilip Dutt has exercised that right and has argued the case on all aspects, both of fact and of law with commendable ability and acumen.

(2.) Facts that have given rise to this case is a simple story that on November 13, 1962 at 6 P. M. this Petitioner was driving State Bus No. W. B. S. 981 along Upper Circular Road (now named Acharya Prafulla Chandra Road) towards north from south. Near the function of that road with Gray Street he overtook a Tram Car No. 101 proceeding in the same direction, by Its left when the said Tram Car had stopped at a Tram Stop for setting down and taking on passengers, in such a manner which was dangerous to the public. On these allegations the petitioner was tried on a charge under Section 116 of the Motor Vehicles Act.

(3.) Mr. Dilip Dutt has raised several points for showing that the order of conviction should not be sustained. He first points out that the accused in this case was not charged for violation of Regulation (3) of Tenth Schedule of Motor Vehicles Act, 1930, but he was charged under Section 116 of that Act. The distinction between those two provisions of law on which Mr. Dilip Dutt relies on is that by the effect of the proviso to Reg (3) Tenth Schedule to pass on the left side a tram car, which when in motion would be travelling in the same direction as himself, while the tram car is at rest for the purpose of setting down or taking up passengers is 'per se' an offence by a driver of a motor vehicle, which may be punishable under Section 112 without reference to such act being either in fact dangerous to public or other users of the road or being such is to cause danger or inconvenience to such other persons) but Section 116 of the Act makes it an offence to drive a motor vehicle at a speed or in a manner