Chandra Deo Singh and Another vs The State

Sen, J.—This revisional application is directed against the conviction of Chandra Deo Singh, a bus driver and Phani Bhusan Maiti, a bus conductor u/s 123 of the Motor Vehicles Act. The prosecution case was briefly as follows: Bus No. W.G.B. 769 has permanent route permit for the route ContaiDigha. The owner of the bus is Ram Prosad Singh. The owner applied for a temporary permit for proceeding up to Deulihat alias Durgapur for one month. The temporary permit issued gave permission ''"for one month till 15.4.53". But before the term of one month ending 15.4.53 started, that is on 12.3.53 the bus in question was driven with a load of passengers to Deulihat alias Durgapur and at that time the driver in charge was Chandra Deo Singh and the conductor was Phani Bhusan Maiti.

A case u/s 123 of the Motor Vehicles Act for contravention of the provisions of the permit was started not only against the two petitioners, Chandra Deo Singh and Phani Bhusan Maiti, but also against the owner, Ram Prosad Singh. The learned Magistrate acquitted the owner on the finding that there was nothing to show that the owner had caused or allowed the motor vehicle to be taken to Deulihat or Durgapur. The learned Magistrate, however, found that the driver and conductor had contravened the terms of the permit and were, therefore, liable to be convicted u/s 123 of the Motor Vehicles Act. The sentence passed was a fine of Rs. 50 each and in default simple imprisonment for one month each.

Mr. Mookerji who appears for the petitioner has urged that the learned Magistrate failed to interpret the terms of the temporary permit permitting plying to Deulihat or Durgapur and'' that if the terms of the temporary permit are properly interpreted it would appear that the plying of the bus to Deulihat was covered by the same. The temporary permit in question is Ext. A. It refers to permission for one month till 15.4.53. The normal interpretation, therefore, could be that the temporary permit would be valid from 16.3.53 to 15.4.53, though the temporary permit was issued on 4.3.53. It may be mentioned that the permit was not issued in proper form prescribed under the rules but was issued in the form of a letter only and it drew attention to the necessity of paying a license-fee of Rs. 3 into the Sub-Treasury. Ext. B shows that the license fee of Rs. 3 was deposited on 5.8.53

Mr. Mookerji has referred to the deposition of D.W. 1, the Motor Vehicles Clerk of Contai Sub-Division. He stated that the permit would take effect from the date of issue or the date of the chalan whichever be earlier. It has, therefore, been urged that the permit would certainly be effective from 5.3.53 and plying of the bus to Deulihat on 12.3.53, would be covered by the permit. But the witness admitted in reply to a question by the court that if a specified date is mentioned in the permit, that would be the date from which the permit would take effect. If a specified date be mentioned that would overrule the ordinary practice that the permit would become effective from the date of issue of the permit or the date of deposit of license fee required for the permit. In the present case, though the date of the commencement of the term of the temporary permit was not specifically mentioned in the letter, Ext. A, the term was described as one month till 15.4.53. The natural interpretation would be that the term would begin from 16.3.53 and end on 15.4.53. Therefore plying the bus on 12.3.53 cannot be regarded as covered by the temporary permit. I do not, therefore, think that the learned Magistrate made any mistake as to the interpretation of the permit.

The next point urged by Mr. Mookerji is that the driver and the conductor are not covered by the terms of section 123(1) of the Motor Vehicles Act taken with section 42(1) of the Motor Vehicles Act and that only the owner would be liable thereunder. Section 42(1) 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. Section 123(1) provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 42 of the Motor Vehicles Act shall be liable thereunder. A driver other than the owner who drives the motor vehicle in contravention of the terms of the permit would, in my, opinion, be covered by the words of section 123(1). In this connection reference may be made to a decision of the Madras High Court in the case of Public Prosecutor v. Jevan (1) (A.I.R. 1941 Mad. 845), where it expressly held that a driver would be liable u/s 123(1) of the Motor Vehicles Act if he drives a motor vehicle in a public place in contravention of the terms of the permit issued u/s 42(1) of the Act. Mr. Mookerji has referred to certain other rulings to show that a driver would not be liable. These rulings, however, do not deal with the case of driving a motor vehicle outside the route permitted by a permit issued under sub-section (1) of section 42. The case of King Emperor v. Amrutlal Chunilal Metha (2) (47 Cr. L.J. 189), refers to the sale of tickets to all passengers in accordance with the rate mentioned in the permit. It was held that the driver could not be expected to see that all the passengers have tickets. Similarly in the case of Srinivasan Ayyangar, In re., (3) (44 Cr. L.J. 526), it was held that while there was a conductor the driver could not be liable for carriage of goods in the bus in contravention of the terms of the permit. In that case the rules dividing the duties between the driver and the conductor were referred to and it was held that the conductor and the owner would be liable and not the driver. These cases are no authority for holding that a driver could not be liable u/s 123(1) of the Motor Vehicles Act if he takes out a public vehicle out of the route mentioned in the valid permit. The ruling reported in AIR 1941, Madras, 845, Public Prosecutor v. Jevan (1) referred to above, is a ruling directly on the point; and from the terms of section 123(1), I must hold that the driver who takes a motor vehicle out of route mentioned in the valid permit is liable.

As regards the conductor, however, I do not think that the terms of section 123(1) are wide enough 10 make him liable also when a public vehicle is driven to a place not covered by the route permit. A conductor does not drive a motor vehicle, neither does he cause or allow a motor vehicle to be used in being driven to the particular place not mentioned in the permit. For that the liability is that of the owner and, therefore, it must be held that the conductor does not come within the mischief of section 123(1).

Mr. Sen has referred to certain rules framed under this Motor Vehicles Act prescribing duties of drivers and conductors, but the offence for the contravention of such rules comes u/s 112 and not u/s 123(1) of this Act.

Lastly, it has been urged by Mr. Mookerji that the driver had no mensrea and he thought that the temporary permit, Ext. A, which had been obtained by the owner would be sufficient to cover driving to Deulihat, on 12.3.53. The driver, however, did not take any such defense. He altogether denied having gone to Durgapur or Deulihat on that day. There is no reason, therefore, to think that the driver thought that driving out to Deulihat on 12.3.53. would be covered by the terms of the temporary permit. If he knew of the temporary permit it must be presumed that he knew of the terms thereof and he knew that the driving of the bus to Deulihat on 12.3.53. would not be covered thereby. This argument, therefore, fails.

This revisional application, therefore, succeeds in part. The conviction of the driver Chandra Deo Singh u/s 123(1) of the Motor Vehicles Act and the sentence passed thereunder are upheld, but the conviction of the conductor, Phani Bhusan Maiti, u/s 123(1) of the Motor Vehicles Act and the sentence passed thereunder are set aside.

The rule is disposed of accordingly The fine of Phani Bhusan Maiti, if paid, will be refunded.