- (1.) THIS is a reference by the Sessions Judge, Jhunjhunu, dated 2nd of November, 1953.
(2.) ON the 18th of August, 1953, bus No. 31 R. 1p was checked at Baragaon. It was found that there were 34 passengers travelling in that bus at that time, whereas the maximum seating capacity of the bus was only of 28, including the driver and conductor. Ramlal was its driver and Jagdish was its conductor. Both of them were prosecuted for contravention of the conditions of the permit under sec. 123 (1) of the Indian Motor Vehicles Act, and they were convicted by the court of the Sub-Divisional Magistrate Udaipur on the 18th of August, 1951, and sentenced to pay a fine of Rs. 50/- each or in default 15th days' simple imprisonment. A revision was filed by both the accused against the order of their conviction in the court of the Session Judge, Jhunjhunu. The learned Sessions Judge has held that the offence of overloading constituted a contravention of rule 121 (a) clause (VIII) of the Rajasthan Motor Vehicles Rules 1951, and was punishable under sec. 112 of the Motor Vehicles Act. In the opinion of the learned Sessions Judge overloading of a bus was not punishable under sec. 123 (1) of the Motor Vehicles Act. It has been recommended that the order of conviction passed by the Sub-Divisional Magistrate, Udaipur, should be set aside and the Magistrate, be directed to re-try the case in accordance with the law, and to pass a sentence under sec. 112 of the Motor Vehicles Act. Sec. 42 (1) of the Motor Vehicles Act provides that : - "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. " Certain provisos are given in sec. 42 (1), but we are not concerned with them here. Under sec. 48 (d) (iv) of the Motor Vehicles Act a Regional Transport Authority has been authorised to fix the maximum number of passengers and the maximum amount of luggage to be carried by any specified vehicle at any one time. A permit in form P. Sc. P. (?) was obtained by the owner of the bus in question, which provides at number 5 the number of passengers' seats. The contents of the permit specified the conditions of the permit and one of the conditions is that the maximum number of passengers carried at any one time shall not be more than the number specified in the permit. It may be noted that overloading of a bus in contravention of the conditions of the permit is prohibited under sec. 42 (1), and as such the offence of overloading can be punished under sec. 123 (1) of the Motor Vehicles Act, which provides that: - "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 " The scope of sec. 123 (1) is much wider than the scope of sec. 42 (1 ). Under sec. 42 (1) an owner of a transport vehicle is made liable whereas under sec. 123 (1) all such persons as drive a motor vehicle or cause or allow a motor vehicle to be used in contravention of the provisions of sec. 42 (1) are made liable The driver was, therefore, rightly convicted under Sec. 123 (1 ). The conductor was an officer incharge of the bus who was responsible for allowing the motor vehicle to be used in contravention of the terms of the permit. He was therefore rightly convicted under sec. 123 (1) of the Act. The learned Sessions Judge has observed that sec. 68 (2) (1) of the Act empower the Government to make rules for the determination of the number of passengers, a stage or contract carriage is adapted to carry and the number which may be carried, and under this provision the Government has made rules which have been published in the Rajasthan Gazette of 30th March, 1951. Rule 121 of those Rules gives the duties of the drivers and conductors of public service vehicles. Clause (a) (viii) of Rule 121 provides that the driver and the conductor of a public service vehicle shall not allow any person to be carried in any public service vehicle in excess of the seating capacity specified in the certificate of registration of the vehicle and any additional number permitted under the terms of the permit to be carried standing in the vehicle. Overloading is in the opinion of the learned Sessions Judge a contravention of the provisions of Rule 121 (a) (viii), and as such it is punishable under sec. 112 of the Motor Vehicles Act. It may be noted that the provisions of sec. 112 of the Motor Vehicles Act make contravention of the provisions of the Act or of the rules made thereunder punishable, if no other penalty is provided for the offence. In case other penalty is provided, that provision would govern the case, and sec. 112 would not apply. As has been discussed above, overloading of a stage carriage amounts to contravention of the conditions of the permit, and is punishable under sec. 123 (1 ). In this view of the matter it is plain that sec. 112 would not apply to such cases. This reference is not accepted, and the convictions and sentences of the driver and conductor are maintained. .;