DAVE, J.—This reference comes on the report of the District Magistrate Jodhpur, dated the 13th April, 1953.

2. The facts giving rise to it are that a Bus No. RJQ, 1940 was checked by Shri Shambhoo Singh, Transport Inspector of Jodhpur Region on 12th November, 1951 at about 6.45 PM at a place called Arna. At that time it was being driven by one Bherunlal driver. The Transport Inspector found that the bus was permitted to run on a different route, that it was not authorised to ply on Jodhpur-Shergarh route where it was found and therefore the owner of the bus was challenged under sec. 123 of the Indian Motor Vehicles Act on account of the contravention of the provisions of sec. 42 of the same Act.

3. The Additional Extra Magistrate First Class, Jodhpur, found the applicant Roopnarain guilty under sec. 123 of the Motor Vehicles Act, 1939 and sentenced him to pay a fine of Rs. 50/-.

4. The applicant filed a revision petition in the court of the District Magistrate, Jodhpur. It was urged in that court that the driver might have taken the bus on a different route but the petitioner had not permitted him to do so, that the prosecution was unable to prove that the petitioner had permitted the use of the vehicle on the Jodhpur- Shergarh route and therefore he should not have been convicted. This argument has found favour with the learned District Magistrate and he has recommended that the conviction of the petitioner should be set aside since the prosecution is unable to prove that he had permitted the driver to take the vehicle on an unlicensed route.

5. Shri Hastimal appearing for the applicant supports the reference. Learned Government Advocate on the other hand contests it on the ground that sec. 42 of the Indian Motor Vehicles Act casts a duty on the owner to see that the vehicle is not run save in accordance with the conditions of the permit and that it was not necessary to prove mensrea in order to hold him guilty for contravention of this section. In support of his argument, he has referred to the case of Ravula Hariprasad Rao vs. The State (1) (AIR 1951 S.C. 204.). In that case the accused was a licensee of two petrol filling stations. He was convicted by the trial court under clauses 22, 27 and 27(A) of the Motor Spirit Rationing Order, 1941. Their Lordships of the Supreme Court observed that it was difficult to hold the appellant guilty under clause 22 read with cl. 5 of the Motor Spirit Rationing Order because the language of clause 22 did not lend support to the contention that even an innocent master would be criminally liable for an act of his servant. It was held that the clause was not aimed specifically against the supplier but was general in its language and would hit the individual person whether be supplier or not. As regards cl. 27(A) of the Order, it was held that it threw the responsibility for making the necessary endorsement on the supplier. The object of that clause was to set up a complete machinery to ensure that necessary endorsements are made on the coupons against which the petrol is supplied. It was also observed that it is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but fact that by itself would not exonerate the superior from liability. On the analogy of this case, learned Government Advocate has urged that sec. 42 of the Indian Motor Vehicles Act also cases a duty on the owner of a transport vehicle to see that the vehicle is not plied in any way save in accordance with the conditions of the permit and if the conditions of the permit are contravened, then the owner should be held guilty and he cannot be exonerated simply by taking shelter under the defence that he did not know that the driver of somebody else had contravened the conditions of the permit.

6. The relevant portion of sec. 42(1) runs as follows:—

"No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accorda

Click Here to Read the rest of this document