- (1.) THIS reference comes on the report of the Sessions Judge, Kotah, dated 4th December, 1952.
(2.) THE facts leading to the reference are that on the 20th of June, 1952, Kalyanlal accused was playing a motor bus No. RJG. 74 from Bundi to Kotah. He was checked by a traffic constable, Tika Ram. On investigation it was found that he was making a second trip in contravention of the conditions of the permit, whereby only one transport motor bus could make on trip from Bundi to Kotah and vice versa during the course of one day. THE accused was challenged in the court of the City Magistrate, who transferred the case to the Additional City Magistrate. THE accused admitted all the facts alleged by the prosecution, and the trial court thereupon convicted him under sec. 123 of the Motor Vehicles Act and sentenced him to pay a fine of Rs. 50/ -. The applicant filed a revision application before the Sessions Judge, Kotah. There it was urged by his advocate that the trial court was not justified in convicting the applicant under sec. 123 of the Motor Vehicles Act because that [section was meant for punishing the contravention of the provisions of sec. 42 (1) of that Act, and sec. 42 (1) of that Act imposed the duty only on the owner of a transport vehicle. It was argued that the owner of the vehicle alone could be punished under sec. 123 for the contravention of the provisions of sec. 42 (1), therefore, the applicant's conviction was illegal. This argument has found favour with the learned Sessions Judge, because it was supported by a ruling of the Allahabad High Court in the case of Jagroop and another vs. Rex (1 ). The applicant has not put in his appearance in this court inspite of notice. I have carefully gone into the case of Jagroop and another vs. Rex (1) (AIR 1952 All. , 276.), relied upon by the learned Sessions Judge. It was a case of non-issue of tickets, and the driver and conductor were convicted by the trial court under sec. 123. The matter was taken to the High Court in revision. It was observed by the learned Judge that - "it is the owner and nobody 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 nobody else can be guilty of contravening this provision. If it is prohibited from doing an act and the act is done, no matter by whomsoever it is done, only if at all, can be said to have committed a breach of the prohibition and nobody else, not even the actual door of the act. " It would be proper to reproduce the language of sec. 42 (1) and 123 (1) of the Indian Motor Vehicles Act before entering into the argument: - "42 (1 ). 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 which the vehicle is being used : 123 (1 ). 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-sec. (1) of sec. 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 of a previous similar offence with a fine which shall not be less than one hundred rupees and may extend to one thousand rupees. " It is no doubt true that sec. 42 (1) imposes the duty only on the owner of a transport vehicle, but it would appear from the language of sec. 123 (1) that it is much wider in its scope than sec. 42 (1), as it imposes a penalty not only on the owner but also on a person who drives a motor vehicle or causes or allows a motor vehicle or to be used or lets out for use in contravention of the provisions of sub-sec. (1) of sec. 42. To my mind, sec. 123 (1) makes the contravention of the provisions of sub-sec. (1) of sec. 42 punishable not only for the owner of a transport vehicle, but also for any other person who drives it. If the owner himself drives the motor vehicle or causes or allows it to be used or lets it out, he would certainly be punishable under this section. This would not, however, mean that if there is somebody else who drives the motor vehicle in contravention of the provisions of sub-sec. (1) of sec. 42, he can do so with immunity. Such an interpretation is likely to make sec. 123 infructuous, because the owner as well can take a plea that the vehicle was taken away by the driver without his knowledge, and he never caused or allowed it to be used or let it out for use in contravention of the provision of sec. 42. In the case cited above, it was remarked by the learned Judge that - "it is meaningless to speak of somebody driving a vehicle in contravention of the provision that no owner of a transport vehicle shall use or permit the use of the vehicle against the conditions of permit. " The argument proceeds on the basis that because the duty under sec. 42 (1) is imposed only one the owner, its contravention could not be made punishable for any person other than the person mentioned therein. With great respect I differ on this point. Sec. 42 (1), as mentioned above, certainly imposes a duty on the owner alone, but there was nothing to prevent the framers of the Act to make the contravention of that provision punishable not only for the owners but also for those who actually prove the motor vehicle. The words "whoever drives a motor vehicle" are wide enough to cover drivers other than owners of the bus, and I see no good reason to restrict the interpretation of sec. 123 only to the case of owners of the vehicle. In the case of Public Prosecutor vs. Jevan and others (1) (AIR 1941 Mad. , 345.), it was held that - "whoever drives a vehicle in public place without a permit under sec. 42 (1) authorizing the use of the vehicle in that place is punishable under sec. 123 (1 ). That the permit is to be obtained by the owner cannot make any difference. " To my mind, this decision, if I may say so with respect, is much sounder, and I agree with it. Again, in the case of Provincial Government, Central Provinces and Berar vs. Mohanlal Keshaolal Vyas (2) (AIR 1944 Nag. , 89.), it was held by a Division Bench of the Nagpur High Court that - - "sec. 42 (1) applies only to the owners of transport vehicles, but sec. 123 applies to anyone who drives a motor vehicle or causes or allows motor vehicle to be used in contravention of the provisions of sec. 42 (1 ). The provisions mentioned in sec. 42 (1) are the conditions of the permit granted by the Regional Transport Authority. Sec. 123 is clearly much wider than sec. 42 (1), and a person, who is admittedly responsible for charging increased fares in contravention of the condition in the permit, commits an offence under sec. 123 (1 ). " In the case of Uma Shanker Tewari and another vs. Rex (1) (AIR (37), 1950 All. , 234.) it was observed by Agarwala J. that - "sec. 42 prohibits the use of a transport vehicle except in accordance with the conditions of a permit. This means that sec. 42 is contravened not only when the vehicle is being used contrary to the condition of a permit, but also when there is no permit whatsoever. Where there is no permit, the motor vehicle is being used in contravention of the provision of sec. 42 (1) and the persons responsible for that use are, therefore, guilty under the provisions of sec. 123. " In the above case, Uma Shanker, who was only a driver of the motor vehicle and not its owner, was held to have been rightly convicted under sec. 123. this case was not noticed in that of Jagroop and another vs. Rex (2) (AIR 1952 All. , 276.), cited The reference is, therefore, rejected. . ;