THE STATE Vs. UPENDRANATH BEHERA AND ORS.

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Balasore, recommending the alteration of the conviction of the opposite party under Section 123 of the Motor Vehicles Act to one under Section 112 of that Act and the passing of an appropriate sentence for that offence. The unchallenged facts are as follows. Opposite party Upendranath Behera was the driver and one Debendra Nath Nayak was the conductor of public bus No. ORM 407. On the 20th May 1954, the bus was checked while plying on a public road and was found to contain 45 passengers though the maximum number of passengers, according to the permit, was only Sa. A prosecution report for an offence under Section 112 of the Motor Vehicles Act was filed by the local Police against the opposite party and the case was transferred to the Court of Shri K.B. Rao, Magistrate, First Class, Balasore, for disposal. Three witnesses were examined by the prosecution to prove the Case. P.W. 1 was the Police constable who checked the bus and found 45 passengers therein. His evidence was fully corroborated by that of P.W.S. The Constable further stated that the permitted capacity of the vehicle was only 35 passengers. This statement of the Constable was not challenged in cross -examination. The prosecution, however, did not prove the permit granted to the owner of the bus, but during the examination of the two accused persons under Section 342, Code of Criminal Procedure they were clearly told that the allegation against them was that they carried 45 passengers in the bus, in place of 35 which was the permitted capacity. The learned Magistrate convicted them under Section 123 of the Motor Vehicles Act and sentenced them each to a fine of Rs. 50/ -.

(2.) THE learned Additional Sessions Judge in his order of reference has stated that the conviction of the accused persons is bad in law for two reasons:

(3.) THE learned Additional Sessions Judge is not right in saying that overloading in the circumstances of the present case, would not amount to an offence under Section 123 of the Motor Vehicles Act, That Section says that if a person drives a motor vehicle, or causes or allows a motor vehicle to be used in contravention of the provisions of Section 42(1) of the Act he shall be liable to be punished under that Section. Section 42(1) of the Motor Vehicles Act says that a vehicle shall not be used except in accordance with the conditions of a permit granted by the appropriate authority. Though the permit was not proved io the case there was the evidence of the Constable (P.W. 1) to the effect that the maximum capacity of passengers in the bus, according to the permit, was only 35. That portion of the Constable's evidence was not challenged either during the cross -examination of the Constable or in the revision petition filed by the accused persons before the learned Additional sessions Judge. Hence, if a bus is found to contain more passengers than the number permissible under the Permit, there would be a clear contravention of the conditions of the Permit and such contravention would be punishable under Section 123/42 of the Motor Vehicles Act. It would have been much better if the prosecution had proved the permit, but as the evidence on this point was unchallenged, the conviction was justified.