The 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) of the Motor Vehicles Act, 1939, would fall within S. 123 of the Act and would be liable to punishment.

Headnote:
MOTOR VEHICLES ACT - Ss. 42(1) AND 123 - LIABILITY OF DRIVER OF MOTOR VEHICLE USED IN CONTRAVENTION OF TERMS OF PERMIT - Ss. 42(1) AND 123 CONSTRUED - DRIVER OF MOTOR VEHICLE NOT OWNER HELD LIABLE TO PUNISHMENT UNDER S. 123.
Fact of the Case:

Two appeals involving a common question of law. In one case, the driver of a public carrier was found carrying more passengers than allowed under the permit. In the other case, the driver of a private station wagon was found carrying passengers without a permit. Both drivers were convicted under S. 123 of the Motor Vehicles Act, 1939, but their convictions were set aside by the High Court on the ground that a mere driver could not be convicted under that section. The State appealed to the Supreme Court.
Finding of the Court:

The Supreme Court held that the 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) of the Motor Vehicles Act, 1939, would fall within S. 123 of the Act and would be liable to punishment.
Issues: Whether the 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) of the Motor Vehicles Act, 1939, would fall within S. 123 of the Act and would be liable to punishment.
Ratio Decidendi: The court interpreted Ss. 42(1) and 123 of the Motor Vehicles Act, 1939, and held that S. 42(1) prohibits the owner of a transport vehicle from using or permitting its use contrary to the conditions of the permit, and that S. 123 punishes anyone who drives a motor vehicle in contravention of the provisions of S. 42(1). The court held that the words "whoever drives" in S. 123 are wide enough to include the case of a non-owner driver who contravenes the provisions of S. 123.
Final Decision: The Supreme Court allowed the appeals, set aside the orders of acquittal, and restored those of the Magistrates convicting the respondents.

Judgement

J. L. KAPUR, J. : These two appeals involve a common question of law and may be disposed of by one judgment.

2. 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 convicted, he recommended the case to the High Court 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.

3. 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.

4. In Criminal Appeal No. 83/57 respondent Vishwanath the driver of a private station wagon W.B.C. 8744 and the owner Sundar 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.

5. 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 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

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