O.H.Mootham, C.J. - (1.) I have had the advantage of reading the judgment prepared by Srivastava, J., and I agree, for the reasons given by him, that the case of Bansraj v. State MANU/UP/0015/1956,, AIR1956 All 27 , 1956 CriLJ6 , was rightly decided and that the question referred to this Bench should be answered in the manner which he proposes. The view taken in Bansraj v, State (A), has not been accepted by other High Courts, but I venture to think, with all respect, that in none of the cases in which that decision has been considered has any logical answer been given to the reasoning upon which that decision is founded.
(2.) Section 123 of the Motor Vehicles Act (as it stood prior to its amendment by Act No. 100 of 1956) is not a well drafted section and accordingly presents difficulties in construction. I think however that, properly construed, it can have only the meaning which found favour in Bansraj v. State (A). If however (as has been suggested) the section is ambiguous I do not think it is then in my opinion the Court is entitled to look at the later legislation on the subject to see if light is thrown upon its meaning. The law on this point was thus stated by Lord Sterndale, M. R., in Cape Brandy Syndicate v. Inland Revenue Commissioners (1921) 2 KB 403 (B), in a passage cited with approval by Lord Buckmaster in Ormond Investment Co. v. Betts 1928 AC 143 (C): I think it is clearly established in Attorney General v. Clarkson (1900) 1 QB 156 (D), that subsequent legislation on the same subject may be looked to in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceeds upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier. Now, Section 123 (1) after its amendment by the Motor Vehicles (Amendment) Act, 1956, reads thus: 1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for a first offence with fine which may extend to one thousand rupees and for a subsequent offence if committed within three years of the commission of a previous similar offence, with imprisonment which may extend to six months or with fine which may extend to two thousand rupees, or with both: Provided that no court shall, except for reasons to be stated in writing, impose a fine of less than five hundred rupees for any such subsequent offence. It will be observed that under the amended section the driving of a motor vehicle or the causing or allowing of a motor vehicle to be used in contravention of any condition of the permit relating to that vehicle is now an offence punishable under this section only if the condition relates to the route on which or the area in which or the purpose for which the vehicle may be used. 'The driver of a motor vehicle which carried more passengers than is allowed by the permit commits no offence under this section; he can be punished only under Section 112. This section would therefore appear to be parliamentary affirmation;, to use the words of Lord Evershed, M.R., . in In re Westby's Settlement, 1950 Ch 296 at p. 303 (E), of the view taken by this Court. Raghubar Dayal, J.
(3.) Sher Khan, driver of a public service vehicle was convicted under Section 123 read with Section 42 of the Motor Vehicles Act 1939 for parrying passengers in excess of the number permitted by clause (viii) of Rule 79 of the U. P. Motor Vehicles Rules, 1940. The Sessions Judge Varanasi referred the case to this Court recommending the alteration of Sher Khan's conviction from an offence under Section 123 to one under Section 112 of the Motor Vehicles Act in view of the decision in the case of Jagrup v. State MANU/UP/0104/1952,, AIR1952 All 276 , to the effect that only the owner of a transport vehicle could be convicted of the offence under Section 123 of the Act as he alone could contravene Sub-section (1) of Section 42 of the Act. This view was confirmed by a Division Bench in the case of MANU/UP/0015/1956., AIR1956 All 27 , 1956 CriLJ6 . It however did not find favour with the other High Courts.;