The use of a motor vehicle with a suspended fitness certificate is not an offence punishable under the Motor Vehicles Act.

1. The petitioners are accused in C. C No 1620/79 on the file of the judicial Magistrate of Second Class, Attingal. The first petitioner is the owner and the second petitioner is the driver of a bus K R T. 2349 plying on the Vamanapuram-Chirayinkil route On September 24, 1979 at about 11 am., the Assistant Motor Vehicles Inspector checked the bus while it was plying on the route and found that there was no valid fitness certificate as it had been suspened on 23rd September 1979 On these allegations, the petitioners were prosecuted before the above mentioned Magistrate for an offence punishable under S.38 read with S.22 and 127 of the Motor Vehicles Act, hereinafter called the Act. When the petitioners appeared before the Magistrate, they pleaded guilty and the Magistrate accepting their plea, convicted and sentenced each of them to pay a fine of Rs 300 and in default to suffer simple imprisonment for one month. The permit of the vehicle was also suspended for a period of one month. on appeal before the Chief Judicial Magistrate, their convictions and sentences were confirmed The Court of Session, in revision, upheld the appellate order.

2. The accused have now come up before this Court seeking to quash the convictions and sentences passed against them by invoking the powers of this Court under S.482 of the Code of Criminal Procedure on the ground that it was on a misconception of fact and law that the courts below happened to convict the accused; that the facts stated to the accused to which they pleaded guilty do not constitute any offence under the Motor Vehicles Act and that therefore the convictions and sentences passed in the case were without jurisdiction.

3. The learned advocate appearing for the petitioners submitted that the allegations and statements of facts made against the petitioners in the charge sheet and the police report will not constitute an offence punishable under S.38 read with S.22 and 127 of the Act or any other provisions of the Act.

4. It is not disputed that it was for plying the bus in question without a proper certificate of fitness that the petitioners were prosecuted. According to the prosecution, the accused have thereby committed an offence punishable under S.38 read with S.22 and 127 of the Act It was argued on behalf of the petitioners that plying a bus without a proper fitness certificate as alleged is not an offence and therefore not punishable under any of the provisions under the Act and that in such cases the Regional Transport Officer alone is competent to take appropriate actions against the owner of the bus for operating the same without possessing fitness certificate in accordance with the provisions of the Act. Sub-section (5) of S.38 reads:

"The issuing authority or other prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter IV shall be deemed to be suspended until a new certificate of fitness has been obtained".

S. 38 of the Act speaks only of cancellation of a certificate of fitness and not suspension of it Under S.22 of the Act, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with Chapter III and certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. The prosecution has no case that the bus in question is not registered in accordance with Chapter III or that its certificate of registration has been suspended or cancelled or that it did not carr