KHIMAJEE PATEL Vs. THE STATE

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Balasore recommending the setting aside of the conviction and sentence passed on the owner of a motor vehicle bearing No. ORB. 875 by the Sub -divisional Magistrate of Balasore for an offence under Section 123 of the Motor Vehicles Act.

(2.) THE prosecution case which was believed by the Court of fact was that on 21 -6 -1959 at about 11.30 a.m. the A.S.I. of Police Soro P.S. (P.W. 3) checked O.R.B. No. 875 in Soro Bazar and found no valid permit on the vehicle. It was then in charge of the driver of the vehicle, and the owner (Petitioner) was admittedly not there. There was an old time expired permit in the vehicle. The Officer -in -Charge Soro P.S. gave seven days time to the driver to produce the road permit but the latter was unable to produce the same. It may thus be taken as well established that this is ant a case of minor offence of not carrying on the vehicle the road permit of a vehicle at the time of detection, but it is a case where, after the expiry of the previous permit, a fresh permit had not been obtained from the authorities concerned. Otherwise within seven days time given by the Police Officer a valid permit would have been produced by him.

(3.) THE learned Sessions Judge has obviously misread the decision in : A.I.R. 1959 Ori 50. In paragraphs 9 and 10 of that judgment it was made absolutely clear that there is a fundamental distinction between plying a vehicle without any permit whatsoever or plying it with a permit which has already expired on the one hand and plying the same in contravention of the conditions laid down in a substituting permit on the other. In the latter case unless the necessary mens rea is affirmatively established the owner cannot be held guilty under Section 123 of the Motor Vehicles Act inasmuch as the owner cannot be expected to control the activities of the Driver after he had taken out the vehicle from the owner's charge. But where there is no subsisting permit at all on the date on which the truck was plying in a public place, the owner's criminal liability is clear. Section 42 of the Motor Vehicles Act casts on the owner the duty of seeing that a vehicle is not used in a public place except in accordance with the conditions of the permit. The owner of the vehicle knew fully well the date on which the permit expired and it was his duty to apply for renewal. Hence, on the date in question the owner was aware that there was no valid permit for the vehicle to ply on public roads and in spite of this knowledge he allowed the driver to take out the vehicle from his charge. It is the duty of the owner to keep the vehicle in safe custody and prevent its being taken out for use on the road, unless the necessary permit was obtained. The Petitioner did not take the plea that the driver took out the vehicle without his knowledge, nor are there any circumstances to indicate that the driver might have stolen the vehicle from the possession. I must, therefore, in disagreement with the Sessions Judge hold that the conviction and sentence passed on the Petitioner were justified.