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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: BANSRAJ(and connected appeal)

DATE OF JUDGMENT: 09/10/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER

CITATION:  1959 AIR   79            1959 SCR  Supl. (1) 153

ACT:        Motor  Vehicle-Driving in contravention of terms of  Permit-        Driver,  if  liable--Motor Vehicles Act (IV  Of  1939),  ss.        42(1) and 123.

HEADNOTE: The  respondents  who were drivers, not being  owners,  were found  driving motor vehicles in contravention of the  terms of the ’permits granted under S. 42(1) of the Motor Vehicles Act.   They were prosecuted and were convicted under s.  123 Of  the Act and sentenced to pay fine.  The High Court  held that  under  S.  42(1)  it  was  the  owner  alone  who  was interdicted from using or permitting the use of the  vehicle save  in  accordance with the conditions of the  permit  and that,  accordingly,  if  the vehicle was  used  against  the conditions  of the permit only the owner, and no  one  else, including  the driver, could be guilty of the  contravention under s. 123. Held,  that drivers of the motor vehicles were  also  liable under s. 123 of the Act for driving in contravention of  the terms  of the permits.  Section 42(1) contemplates not  only prohibition against the user by the owner of the vehicle  or his  permitting its user contrary to the conditions  of  the permit  but  it also contemplates that  the  vehicle  itself shall  be used only in the manner authorised by the  permit. Section 123 penalises all 20 154 persons who drive a motor vehicle or cause or allow a  motor vehicle to be used or let out a motor vehicle to be used  in contravention of the provisions of s. 42(1).

JUDGMENT: CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 115/56 & 83/57. Appeal  by special leave from the judgment and  order  dated September  13,  1955,  of the  Allahabad  High  in  Criminal Reference  No.  359 of 1952, arising out  of  the  Reference dated August 4, 1952, by the Sessions Judge, Gorakpur, under section 438 of Criminal Procedure Code.

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G.   C. Mathur and C. P. Lal for the appellant (In both  the appeals). The respondent did not appear. 1958.  October 9. The Judgment of the Court was delivered by KAPUR, J.-These two appeals involve a common question of law and may be disposed of by one judgment. In Criminal Appeal No. 115/56 the respondent Bansraj, driver of a public carrier, of which he was not an owner, was found carrying  23  passengers  instead of  6  allowed  under  the conditions  of permit No. 42-926/123 granted to  the  owner. The vehicle was checked by a Head Constable who on  counting the  number  of  passengers found them to  be  23.   Bansraj respondent  was prosecuted under s. 42 read with s.  123  of the  Motor Vehicles Act, (IV of 1939), as it existed at  the date  of  the  offence;  (to  be  called  the  Act  in  this judgment).  Bansraj respondent pleaded not guilty and stated that  only six passengers were being carried.  He was  tried summarily by a First Class Magistrate at Gorakhpur and found guilty  under s. 123 of the Act and sentenced to pay a  fine of   Rs.   200  and  in  default  three   months’   rigorous imprisonment.   He went in revision to the  Sessions  Judge, Gorakhpur,  and  there it was contended that he was  only  a driver and therefore could not be convicted under s. 123  of the  Act.   The learned Judge accepted that  contention  and being of the opinion that a mere driver could not be so con- victed, he recommended the case to the High Court 155 under  s.  438 of the Criminal Procedure Code.   The  matter came up as Criminal Reference No. 359/52 before Mukherji J., who  referred it to a Division Bench and was heard by  Desai and Upadhya JJ.  The interpretation which the High Court put on  s.  42(1) was that under the section it  was  the  owner alone  who was interdicted from Using or permitting the  use of  the vehicle save in accordance with the conditions of  a permit  and  therefore if the vehicle was used  against  the conditions of the permit, no one else, including the driver, could  be guilty under s. 123 of contravention of the  terms of the permit. The reference was therefore accepted and the conviction  and sentence  of  the respondent was set aside.  The  State  has come  up  in appeal pursuant to special  leave  against  the judgment and order of the High Court of Allahabad. In  Criminal  Appeal  No. 83/57  respondent  Vishwanath  the driver of a private station wagon W.B.C. 8744 and this owner Sunder Singh were both prosecuted for carrying 13 passengers from  Moghulsarai to Banaras in the station wagon which  had no  permit for carrying passengers on hire.  Out of these  8 persons  were travelling as passengers who had been  charged fares.  The Magistrate acquitted Sundar Singh giving him the benefit  of doubt and sentenced the driver to a fine of  Rs. 500  under  s.  123  of the Act and  in  default  to  simple imprisonment  for  six months.  This enhanced  sentence  was given  because  he had four previous convictions  under  the Act.   The  respondent  Vishwanath took  an  appeal  to  the Sessions  Judge,  Banaras,  who  set  aside  the  conviction holding that the driver of a vehicle could not be  convicted under  s.  123 for contravention of the  conditions  of  the permit.  The State took an appeal to the High Court and this appeal also was heard by Desai and Upadhya JJ. who dismissed the  State’s  appeal and the State has come  to  this  Court pursuant to special leave. The question for decision in both these appeals is the  same i.e. the liability of the driver of a motor vehicle used  in contravention  of the terms of the permit under s. 42(1)  of the Act and this will depend

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156 upon  the  construction to be put on ss. 42 and 123  of  the Act.   At the time when the Respondents in the  two  appeals are alleged to have committed the offence s. 42(1) provided:- "  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............... " And s. 123 of the Act provided "  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-section  (1)  of section 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  Act  regulates the use of motor vehicles and  for  that purpose its various provisions provide for control on  motor vehicles and on those who own them and those who drive them. Chapter II provides for licensing of motor vehicles, Chapter II-A   for   licensing  of  conductors,  Chapter   III   for registration of motor vehicles and Chapter IV for control of transport   vehicles.   Chapter  IX  deals  with   offences, penalties and procedure.  Section 3 in Chapter II is  headed necessity  for driving licences.  Section 22 in Chapter  III is headed necessity for registration.  The marginal note  of section  42 in Chapter IV is necessity for  permits.   There are  several provisions in the Act contained in  Chapter  VI which provide for control of traffic, requiring the  drivers of  motor  vehicles to observe speed limits,  to  obey  duty signals and there are other provisions for subserving safety in  regard to driving of motor vehicles.  The provisions  of Chapter IX show how particular the legislature is in  regard to the road safety.  With that object in view the Act  makes provision for 157 a  complete  control over the owners of motor  vehicles  and over  the  drivers  of such  vehicles  and  makes  elaborate provisions  in regard to every aspect of motor  traffic  and penalises  every one who contravenes the provisions  of  the Act including the seller of a defective motor vehicle. Section 42 is headed " necessity for permits ". The language of  the  section employs prohibitive or negative  words  and therefore  its  legislative intent is that  the  statute  is mandatory.   The negative words convey a forbidding  of  the doing  of  the  act  prohibited and  from  the  use  by  the legislature  of the words " no owner of a transport  vehicle shall  use  or  permit  the  use  "  in  s.  42(1)  a  total prohibition against user of the vehicle except in accordance with the conditions of the permit is indicated.  Further the words " authorizing the use of the vehicle in that place  in the  manner  in  which  the vehicle is  being  used  "  have reference  to  the transport vehicle itself and not  to  the owner  that  is to say s. 42(1) does not only  prohibit  the owner  from  using  the transport vehicle  contrary  to  the conditions  of the permit but there is an express  provision in  the  section that the permit authorises the use  of  the vehicle in the place and in the manner it is being used, and that  it is to be used in accordance with the conditions  of the  permit.  Thus construed s. 42(1) contemplates not  only

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prohibition against the user by the owner of the vehicle  or his  permitting its user in a manner contrary to the  condi- tions  of  the  permit but it  also  contemplates  that  the vehicle itself shall be used in the manner authorised by the permit.  The prohibition therefore is not merely against the use  by  the  owner  but against the  use  contrary  to  the conditions of the permit of the vehicle itself. Section  123  is in the chapter dealing  with  offences  and penalties.  The marginal note shows what the section intends to  punish,  and  that  the intention  was  to  provide  for punishment  of  every person who drives a motor  vehicle  in contravention of the provisions Of sub-s. (1) of s. 42.   We have  said  above  that  s. 42(1) ,requires  the  use  of  a transport vehicle in accordance 158 with  the  conditions  of the permit and that  it  does  not merely  prohibit  its  user by the  owner  contrary  to  the conditions  of  the  permit.   Therefore  when  a  transport vehicle  is driven by any one in contravention of the  terms of  the permit, it is in contravention of the provisions  of s.  42(1).  Section 42(1) is not a penslising section.   For its  breach s. 123 provides the penalties.  The  legislature advisedly  did  not use the word I owner’ in s. 123  of  the Act.   Having by s. 42(1) prohibited an owner from using  or permitting  the use of a transport vehicle contrary  to  the conditions  of the permit and having clearly stated  therein that  the permit granted by the Regional or  the  Provincial Transport Authority authorised the use of the vehicle in the manner in which the vehicle was to be used, the  legislature provided punishment for anyone who drove a motor vehicle  or caused  or-allowed a motor vehicle to be used or lets out  a motor vehicle to be used in contravention of the  provisions of  sub-s.  (1) of s. 42.  It is for this  reason  that  the Legislature  used the word ’whoever’ and did not  limit  the punishment  set  out in s. 123 to the  owner  himself.   The Legislature intended that no motor vehicle should be  driven by anyone contrary to the provisions of s. 42(1) and that if it  was driven in contravention of those provisions  he  was liable to punishment.  The two sections read together do not lead  to  the conclusion that s. 123 only  makes  the  owner liable  to  punishment.  The words " 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-s.  (1)  of section  42 " may well refer to the owner.  That is to  say, this  part of s. 123 punishes an owner for contravening  the provisions  of s. 42(1).  The driving of the motor  vehicle, however,  is a different matter.  It could be driven by  the owner  himself  or  by  some  one  other  than  the   owner. Therefore,   the   words   "   whoever   drives   a    motor vehicle............... in contravention of the provisions of sub-s.  (1) of section 42 " would cover both the  owner  and one  who is not the owner.  What is made punishable  is  the driving  of  the  motor vehicle by anyone  contrary  to  the provisions of s. 42(1).  That is to say, the motor vehicle 159 cannot be driven by anyone contrary to the conditions of the permit relating to that vehicle. It  may  here be remarked that there is a  preponderance  of judicial  opinion in favour of the view that a driver  of  a motor  vehicle  who  is  not its owner  and  who  drives  in contravention of the conditions of a permit under s.  42(1), would fall within s. 123 of the Act.  Except the High  Court of Allahabad the other High Courts are in accord in  holding that  such  driver  would be guilty under  s.  123.   Public Prosecutor  v.  Jevan (1); Provincial Government,  C.  P.  &

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Berar v.  Mohan  Lal (2), Chandra Deo Singh v. The  State(3) Teja Singh v. The State (4) ; Kalyan Lal v. The State(3) The State  v.  Ram Chandra(5); The State v.  Motilal  All  these cases have proceeded on the view that thewords   whoever drives’  are wide enough to include the case of a  non-owner driver  who contravenes the provisions of s. 123.   Even  in the  High  Court  of Allahabad in an  earlier  decision  Uma Shankar v. Rex (8), Aggarwala J., was of the opinion that  a driver  driving  in  contravention of the  conditions  of  a permit would fall within s.   123 of the Act. In  our opinion, the interpretation put in this case by  the Allahabad  High  Court on ss. 42 and 123 is  erroneous.   We would therefore allow these appeals, set aside the orders of acquittal  and restore those of the  Magistrates  convicting the respondents.                                 Appeals allowed. (1)  A.I.R. 1941 Mad. 845. (3)  (1954) 59 C. W. N. 787. (5)  A.I.R. 1954 Raj. 250. (7)  A.I.R. 1957 Raj.63. (2)  A.I.R. 1944 Nag, 89. (4)  A.I.R. 1952 Punj. 45. (6)  A.I.R. 1955 Raj. 83. (8)  A.I.R. 1950 All. 234. 160