Upadhya, J. - (1.) This is a reference made by the Sessions Judge, Gorakhpur, recommending that the conviction of the applicant Bansraj under Section 123 read with Section 42 of the Motor Vehicle Act be set aside. The prosecution case is that Bansraj, a driver, was found carrying 23 passengers in a public carrier while the permit allowed him to carry only 6 passengers in that vehicle. The Magistrate found him guilty and sentenced him to a fine of Rs. 200/-, and in default to undergo rigorous imprisonment for a period of three months under Section 42 read with Section 123 of the Motor Vehicles Act. It was urged before the Sessions Judge that the applicant being a driver could not be convicted under the said provisions. Section 42(1) of the Motor Vehicles Act runs as follows ; "No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.,...." Section 123 (1) of the Motor Vehicles Act is as below: "Whoever 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 shall be punishable for a first offence with fine which may extend to five hundred rupees, and for a subsequent offence if committed within three years of the commission qf a previous similar offence with a fine which shall not be less than one hundred rupees and may extend to one thousand rupees." The learned Sessions Judge took the view that Section 42 was a provision applicable only to the owner of a transport vehicle and it laid down that he shall not use or permit the use of a vehicle, save in accordance with the conditions of a permit, and Section 123 (1) provided for the punishment of the contravention of the provisions of Sub-section (1) of Section 42. The learned Judge thought that Section 42 (1) being applicable only to the owner of a vehicle the contravention thereof could be possible only when he acted against the provisions of that section, and that a driver could not be held to have acted in contravention of Section 42 (1) which did not concern him at all, and he could not, therefore, be punished under Section 123. The learned Judge relied on a decision of this Court in -- 'Jagroop v. Rex', AIR 1952 All 276 (A), and made the recommendation as noted above.
(2.) In -- "Jagroop v. Rex', (A), mentioned above my brother Desai J., expressed the opinion that under Section 42 (1) of the Motor Vehicles Act. "it is the owner and no body else, such as the driver or conductor, who is forbidden to use or permit the use of a vehicle, save in accordance, with the conditions of the permit, and consequently if a transport vehicle is used against the conditions of the permit, only the owner, and no body else can be guilty of contravening this provision." He, therefore quashed the conviction of the accused, who was a driver in that case., under Section 123 read with Section 42 of the Motor Vehicles Act. He referred to a decision by Pollock J. in -- 'Emperor v. Amrutlal Chunnilal' -- AIR 1945 Nag. 263 (B), for the view taken by him. In that case the managing partner of a motor service and the driver and the conductor of a bus were prosecuted under the Motor Vehicles Act for not issuing tickets to two of the passengers in the bus, although they had paid their fares. Referring to Section 42 (1) the learned Judge held that the first accused was the owner as well as the manager and fell within the meaning of the word 'owner' in that section and held that he was responsible for seeing that the conditions of the permit requiring the issue of the tickets were carried out. Referring to Rules 78 and 79 of the rules framed under the Act stating the duties of drivers and conductors, the learned Judge found that the issue of tickets was not one of the duties assigned to them and he held that it would be quite unreasonable to expect the driver to see that all the passengers had tickets and it could not be said, therefore, that the driver had driven the motor vehicle in contravention of the provisions of Section 42 (1) if he failed to see to the issue of tickets. As to the conductor the learned Judge held that he did not drive the motor vehicle nor did he allow it to be used in contravention of the said provisions. The learned Judge, therefore, upheld the conviction of the meaning partner but set aside the conviction of the driver and the conductor of the bus.
(3.) As against these two cases there are a series of authorities in which the view taken is that a driver who drives a motor vehicle not in accordance with the permit issued, acts in contravention of the provisions of Section 42 (1), and is liable to be convicted. The first case to which my attention has been invited is a single Judge decision re-ported in -- 'Public Prosecutor v. Jevan', AIR 1941 Mad 845 (C). The judgment in that case is rather very short. The learned Judge held that the driving of a transport vehicle on the public road without a permit would certainly contravene Section 42 (1) of the Act and the fact that the permit is to be obtained by the owner would not make any difference. The learned Judge's attention was not invited to the fact that while Section 42 (1) laid down that the owner shall not use or allow the use of the vehicle save in accordance with a permit it said nothing about persons other than the owner. He did not therefore consider the question as to whether there could be any violation of Section 42(1) by a person other than an owner. The next case is a Division Bench case of the Nagpur High Court reported in -- 'Provincial Govt. C. P. & Berar v. Mohanlal Keshap Lal', AIR 1944 Nag 89 (D). In that case the learned Judges held that while Section 42 (1) applies only to the owner of transport vehicles Section 123 applies to any one who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 42 (1), and that Section 123 is much wider than Section 42 (1), and the view taken was that the provisions mentioned in Section 42 (1) are the conditions of the permit granted by the Regional Transport Authority, and if the vehicle is driven by anybody in contravention of the conditions of the permit a liability under Section 123 (1) is incurred. In this decision also no reason has been given for taking the view that Section 123 is wider in its scope than Section 42 (1). With great respect, I am unable to agree that Section 42 (1) lays down the conditions of the permit granted. Section 42 (1) only makes it necessary for every owner of a vehicle to obtain a permit and not to use it or allow it to be used save in accordance with the permit. The learned Judges have not discussed as to how the penalty provided by Section 123 could be imposed on a person who is not required to do or abstain from doing anything under Section 42 (1) specially when Section 123 specifically says that the contravention of Section 42 (1) is essential to constitute the offence. A learned Judge of the Punjab High Court had occasion to consider these provisions in a case reported in -- 'Teja Singh v. State', AIR 1952 Punj 45 (E), and observed: "Prima facie section 42 is designed to punish the owner of a transport vehicle who uses or permits the use of the vehicle in contravention of the conditions of the permit while Section 123 is designed to punish the person who drives or causes or allows a motor vehicle to be used in contravention of the conditions of the permit. "The case decided by my brother Desai J., was placed before him but he thought that the construction placed in that case was such as to defeat the obvious intention of the Legislature, and he declined to follow it. Referring to Section 123 the learned Judge observed : "To my mind this section was clearly intended to be a residuary section and was enacted with the object of punishing a person (other than the owner) who uses a vehicle in contravention of the conditions of the permit issued by the appropriate authority. Another construction would lead to absurd results and render the section wholly meaningless. On a plain reading of Sections 42 and 123 I entertain no doubt whatsoever that whereas the former section is designed to punish the owner of a transport vehicle the latter is designed to punish the driver or any other person.";