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Criminal Appeal No. 488 of 1951, decided on 14th April 1953.
Ss. 42 & 123‑---Do not refer to paid driver of vehicle who drives without route permit.
The person who drives is the person who contravenes, and since the owner alone can contravene section 42, section 123 cannot refer to the paid driver.
Public Prosecutor v. Jevan A I R 1941 Mad. 845, Provincial Government, C. P. & Bcrar v. Mohanlal A I R 1944 Nag. 89, Emperor v. Amritlal‑Chunilal A I R 1945 Nag. 263 and Jagroop v. Rex 3 A I Cr. D 596 ref.
S. A. Mahmood Assistant Advocate‑General for Appellant.
Abdul Karim for respondent.
Muhammad Akram, a motor‑driver plying a transport bus belonging to another person, pleaded guilty to hav ing committed five distinct offences under the Motor Vehicles Act and was sentenced to an aggregate fine of Rs. 600. One of these offences was "plying without route permit", punishable under section 123 read with section 42 of the Act. In appeal, the legality of this part of the conviction was questioned on the ground that section 42 creates a liability in respect of the owner, not the driver, and, accepting the contention, the learned Sessions Judge of Rawalpindi set aside the conviction under sections 42 and 123, reducing the sentence of fine by Rs. 200. Against this acquittal, the Government has appealed.
The two provisions of law may profitably be reproduced.
Section 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 the manner in which the vehicle is being used."
Section 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 subsection (1) of section 42 shall be punishable * * * *."
The question, therefore, is: How are the provisions of section 42 contravened One view is that they are contravened if a motor vehicle is driven without a permit; another view is that they are contravened to the limited extent that the contraven tion is by the owner. The first view is supported by Public Prosecutor v. Jevan (A I R 1941 Mad. 845), and Provincial Government, C. P. & Berar v. Mohanlal (A I R 1944 Nag. 89) the second by Emperor v. Amritlal Chunnilal (A I R 1945 Nag. 263), and Jagroop v. Rex (3 A I Cr. D 596).
So far as my own mind goes, it has vacillated. Its first reac tion may be expressed in the following paragraph:‑
It is clear that whoever drives a motor vehicle without a route permit, there would be a contravention of section 42 so far as the owner goes. Section 123 does not say that the con travention should affect the owner alone. It says if there is a contravention, which of course means a contravention by the owner, it will affect, among others, the person who drives the motor vehicle. If the owner alone were intended to be covered by section 123, it would be enough to say "Whoever contravenes the provisions of section 42 * * *," and quite unnecessary to speak of him first as a person who himself drives the vehicle and again as a person who causes or permits another to drive, for section 42 itself meets both situations. Put it this way. X is the owner of a vehicle without a route permit and he allows Y to drive it for him. I can say to X that the driving of the vehicle contravenes section 42. but when I meet Y and tell him the same thing, he replies: "But it is X who is contravening it." Quite right, but there is contravention all the same, and section 123 says that whenever there is such contravention, "whoever drives" the vehicle is punishable. It might make some difference if the section read thus: "Whoever drives and thereby contravenes section 42 * * * *," for then the subject of the verb "contravenes" would be the driver. In other words, it would be his contravention. The proper interpretation of the section, therefore, seems to me to be this: "Whoever drives and the driving causes a contravention of section 42 * * * * *."
But then it occurred to me that the matter was purely one of grammatical construction, and that if I alter the syntax, as suggested in the last line of the last paragraph, I merely force out of the words a meaning of which they are not capable in their own setting. "Whoever drives a motor vehicle * * * * in contra vention of the provision of * * * * * section 42" is syntactically different‑--I cannot avoid using a technical expression and I do so with apology‑from "Whoever drives and the driving causes a contravention * * * * * " etc. But the sentence will undergo no such operation if it is thus expressed: "Whoever acts in contravention of section 42", for "driving a motor vehicle" is acting in some manner, and is one of the acts forbidden by section 42, When thus expressed, it means that the person who drives is the person who contravenes, and since the owner alone can contravene section 42, section 123 cannot refer to the paid driver.
As to why the draftsman could not say briefly "whoever contravenes the provision of section 42" is a matter between the draftsman and his own legal conscience. Possibly he wished to emphasize that the owner would be liable whether he drives the vehicle himself or causes it to be driven by another, and with that end in view, virtually repeated the expressions used in section 42. It may be of interest to mention that according to Chakrabarti's Law of Motor Vehicles in India (19‑10), the Select Committee substituted "the more definite word drives" for "uses" in the first line of section 123. This would mean that the word "drives" was used, not because it was intended to cover the paid driver, but because the intention was to use a more precise expression.
In Provincial Government, C. P. & Berar v. Mohanlal (A I R 1944 Nag. 89), which supports the contrary view, a driver bad charged fares in excess of those prescribed by the permit and the learned Judges, Niyogi and Pollock, expressed themselves thus:
"Section 42 (1) applies only to the owners of transport vehicles, but section 123 applies to any one who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 42(1). The provisions mentioned in section 42 (1) are the conditions of the permit granted by the Regional Transport Authority. Section 123 is clearly much wider than section 42 (1), and we think it is clear that the accused, who was admittedly responsible for charging increased fares, committed an offence under section 123 (1)."
This, I agree, is the first impression that one gets from section 123, but, with great respect, I should point out that the learned Judges have not examined the language of the section in its precise set ting. Pollock J., in a later case, Emperor v. Amritlal Chunilal (A I R 1945 Nag. 263), took what may reasonably be stated as the opposite view in the following circumstances, without any reference to his earlier view. It was one of the conditions of the permit that tickets should be issued to all the passengers, and when the managing partner on one occasion failed to issue tickets to two of the passengers, not only he but also the driver was prosecuted, because he bad driven "in contravention of the provisions of section 42 (1)" which required compliance with the conditions of the permit. The learned Judge observed that since it was not one of the expressed duties imposed upon the driver by the rules to issue tickets‑although other duties had been imposed upon him "it would be quite unreasonable to expect the driver to see that all the passengers have tickets, and it cannot be said therefore that a driver has driven the motor vehicle in contravention of the provisions of section 42 (1) if he fails to see to the issue of tickets."
The other case supporting this view is Public Prosecutor v. Jevan (A I R 1941 Mad. 845), by Lakhshmana Rao, J., who gave his views in the following terms:‑
"The driving of a transport vehicle on the public road without such a permit would certainly contravene section 42 (1) of the Act; and section 123 (1) enacts that whoever drives a motor vehicle in contravention of the provisions of subsection (1) of section 42 shall be punishable with fine. That the permit is to be obtained by the owner cannot make any difference and whoever drives the vehicle in a public place without a permit authorizing the use of the vehicle in that place would be punish able under section 123 (1) of the Act."
The reasoning employed has already been examined by me in relation to my own first reactions.
The view that I take is favoured by Desai, J. also in Jagroop v. Rex (3 A 1 Cr. D 596), (Allahabad High Court), but I do not adopt the entire reasoning of that learned Judge.
The appeal is therefore, dismissed.
K. M. A. Appeal dismissed.
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