BHANDARI, J. - (1.) THIS is an appeal by the State against the order of the First Class Magistrate, Kherwara, dated 15th January, 1959, by which he acquitted Chander Singh, Jagnath Singh and Dali Chand under secs. 112 and 121 of the Motor Vehicles Act (hereinafter called the Act ).
(2.) THE prosecution case is that bus No. 1191 RJY is owned by Dali Chand and on 8th November, 1958, it was being taken by Chander Singh driver from Dungarpur to Udaipur on regular service. Bhanwar Singh, police constable stopped the bus and checked the number of passengers in the bus. He found that the bus had 60 passengers while the permit was for 50 passengers only. All the three accused were, challancd under sec. 112 and 121 of the Act. THEy have been acquitted on the preliminary ground that Bhanwar Singh had no authority to check the bus under Rule 140 (c) of the Rajasthan Motor Vehicles Rules, 1951, as the said constable was not a police officer in uniform. THE State has filed this appeal contending that the respondents should not have been acquitted as the bus of which Dali Chand was the owner, Chander Singh was the driver and Jagnath Singh was the conductor was carrying more passengers than allowed under the permit and that it did not matter whether the constable who found out that the bus was carrying 60 passengers was or was not a police officer in uniform authorised to stop the vehicle. Notices were given to the respondents of this appeal but they have not put in their appearance. In our opinion the learned Magistrate was wrong in acquitting the respondents on the ground that Bhanwar Singh constable was not authorised to stop the bus and to carry out the examination of the number of passengers. The gist of the offence in this case is that of carrying more passengers than authorised under the permit and the prosecution is entitled to prove that by the evidence of Bhanwar Singh and other witnesses inspire of the fact that Bhanwar Singh was not authorised to stop the bus and examine the number of passengers in that bus. Merely because Bhanwar Singh had no authority to do so it cannot be said that an offence had not been committed. It may be mentioned that it was open to the driver not to have obeyed the instruction of the constable Bhanwar Singh and if the driver had done so he could not have been convicted of any offence. It is desirable that the officer who stops a vehicle and carries on such examination of number of passengers, must be authorised to do so under the law otherwise as already pointed out the driver may disobey the orders of the unauthorised person. Memo, No. D. 8018/f. 1/9 (48) HB/58, dated 7th November, 1958, issued by the Government of Rajasthan to the Inspector General of Police, Rajasthan, all Regional Transport Officers and all Assistant Regional Transport Officers, may be taken to emphasise this aspect of the matter. The learned Magistrate could not have relied on it as he has done for acquitting the accused. At best the examination of the number of passengers by Bhanwarsingh was merely an irregularity in investigation but as pointed out by their lordships of the Supreme Court in Udaibir Singh Vs. The State of U. P. (1) the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate otherwise from any infirmity in the inquiry or trial. In this view of the matter we accept the appeal, set aside the order of acquittal passed by the Magistrate First Class, Kherwara, acquitting the respondents. We send the case back to him for trial of the respondents in accordance with law. .;