DAVE, J. - (1.) THIS reference comes on the report of the District Magistrate Jodhpur, dated the 13th April, 1953.
(2.) THE facts giving rise to it are that a Bus No. RJQ, 1940 was checked by Shri Shambhoo Singh, Transport Inspector of Jodhpur Region on 12th November, 1951 at about 6. 45 PM at a place called Arna. At that time it was being driven by one Bherunlal driver. THE Transport Inspector found that the bus was permitted to run on a different route, that it was not authorised to ply on Jodhpur-Shergarh route where it was found and therefore the owner of the bus was challenged under sec. 123 of the Indian Motor Vehicles Act on account of the contravention of the provisions of sec. 42 of the same Act. The Additional Extra Magistrate First Class, Jodhpur, found the applicant Roopnarain guilty under sec. 123 of the Motor Vehicles Act, 1939 and sentenced him to pay a fine of Rs. 50/ -. The applicant filed a revision petition in the court of the District Magistrate, Jodhpur. It was urged in that court that the driver might have taken the bus on a different route but the petitioner had not permitted him to do so, that the prosecution was unable to prove that the petitioner had permitted the use of the vehicle on the Jodhpur- Shergarh route and therefore he should not have been convicted. This argument has found favour with the learned District Magistrate and he has recommended that the conviction of the petitioner should be set aside since the prosecution is unable to prove that he had permitted the driver to take the vehicle on an unlicensed route. Shri Hastimal appearing for the applicant supports the reference. Learned Government Advocate on the other hand contests it on the ground that sec. 42 of the Indian Motor Vehicles Act casts a duty on the owner to see that the vehicle is not run save in accordance with the conditions of the permit and that it was not necessary to prove mensrea in order to hold him guilty for contravention of this section. In support of his argument, he has referred to the case of Ravula Hariprasad Rao vs. The State (1) (AIR 1951 S. C. 204. ). In that case the accused was a licensee of two petrol filling stations. He was convicted by the trial court under clauses 22, 27 and 27 (A) of the Motor Spirit Rationing Order, 1941. Their Lordships of the Supreme Court observed that it was difficult to hold the appellant guilty under clause 22 read with cl. 5 of the Motor Spirit Rationing Order because the language of clause 22 did not lend support to the contention that even an innocent master would be criminally liable for an act of his servant. It was held that the clause was not aimed specifically against the 'supplier' but was general in its language and would hit the individual person whether be supplier or not. As regards cl. 27 (A) of the Order, it was held that it threw the responsibility for making the necessary endorsement on the supplier. The object of that clause was to set up a complete machinery to ensure that necessary endorsements are made on the coupons against which the petrol is supplied. It was also observed that it is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but fact that by itself would not exonerate the superior from liability. On the analogy of this case, learned Government Advocate has urged that sec. 42 of the Indian Motor Vehicles Act also cases a duty on the owner of a transport vehicle to see that the vehicle is not plied in any way save in accordance with the conditions of the permit and if the conditions of the permit are contravened, then the owner should be held guilty and he cannot be exonerated simply by taking shelter under the defence that he did not know that the driver of somebody else had contravened the conditions of the permit. The relevant portion of sec. 42 (1) 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 the permit granted 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. " It is clear from the provisions of this section that it enjoins upon the owner of a transport vehicle that he would not use or permit the use of the vehicle in any public place save in accordance with the conditions of the permit. In the present case the applicant has not himself used the vehicle. What is alleged against him is that he has permitted the use of the vehicle by the driver in contravention of the conditions of the permit. There is. , however no evidence on record to show that the driver had taken the vehicle on the prohibited route with the express or implied permission of the applicant. The question therefore arises whether in the absence of any such evidence it should be presumed against the applicant that the use of the vehicle by the driver on a different route was permitted by him. In other words, whether this law seeks to make the owner criminally liable for the acts of his servant even though they might have been committed without his knowledge. In the case of Mousell Bros. vs. L. & N. W. Rly. Co. (1) ( (1917) 2k. B. 836.) to which a reference has been made with approval by their Lordships of the Supreme Court in the case cited above (1), it was observed by Atkin J. as follows : - "i think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute ; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. " The question to be determined therefore is whether it is the intention of the Legislature to make the owner criminally responsible for the acts of others even though he may not be in the know of it. To my mind, the words" permit the use of the vehicle" cannot be taken as meaning that the owner would be held liable even if he is unaware of the use of the vehicle. In the case of A. Abdul Salam Rowther (2) (AIR, 1943 Mad. 41.), it was observed that the word "permit" carries with it the meaning that the person actually and knowingly allows the thing to be done. Mere negligence on the owner's part in not looking up his vehicle so that the driver could not take it,, would not amount to 'permitting' the use of the car. The duty was cast on the prosecution to prove that the petitioner either used or permitted the use of the vehicle. Sec. 123, which prescribes the penalty for contravention of sub-sec. (1) of sec. 42, makes the driver of a motor vehicle as much liable as the person who causes or allows the vehicle to be used or lets out to be used in contravention of the said provisions. It is therefore difficult to hold that meansrea is not a necessary element of the offence contravening the provisions of sec. 42 (l) and unless it is established that the owner expressly or impliedly permits some body to use the vehicle in contravention of the conditions of the permit, I do not think that he can be held guilty under sec. 120 of the Act. The reference made by the learned District Magistrate is therefore allowed. The conviction of the applicant under sec. 123 is set aside. The fine, if paid, will be refunded to him. .;