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1942 Supreme(Mad) 308
IN THE HIGH COURT OF MADRAS
Horwill, J.
In Re: A. Abdul Salaam Rowther
Versus
Decided On : 31.08.1942
The prosecution must prove all the elements of the offence, including 'use' and 'permit', and the failure to do so can lead to the conviction being set aside.
Headnote:
Motor Vehicles Act - Conviction under Section 123(1) and Section 42 - Interpretation of 'use' and 'permit' - The court held that the vehicle was being 'used' as the driver used it to convey himself to the court, and the owner did not 'permit' the use as there was no evidence of actual and knowing allowance. The prosecution failed to prove all the elements of the offence, leading to the conviction and sentence being set aside.
Fact of the Case:
The petitioner was convicted under Section 123(1) and Section 42 of the Motor Vehicles Act for permitting his motor vehicle to be used by his driver in a public place.
Finding of the Court:
The court found that the prosecution failed to prove all the elements of the offence, and therefore, the petitioner was entitled to succeed. The conviction and sentence were set aside, and the fine, if paid, was ordered to be refunded.
Issues: The issues raised were whether the vehicle was being 'used' within the meaning of Section 42(1) and whether the petitioner 'permitted' the driver to use the vehicle.
Ratio Decidendi: The court interpreted the meaning of 'use' and 'permit' in the context of the Motor Vehicles Act and emphasized the requirement of actual and knowing allowance for 'permitting' the use of the vehicle. It was held that the prosecution failed to discharge its duty of proving all the elements of the offence.
Final Decision: The petition was allowed, and the conviction and sentence were set aside. The fine, if paid, was ordered to be refunded.
Horwill, J.
1. The petitioner was convicted under Section 123(1) and Section 42 of the Motor Vehicles Act of permitting his motor vehicle to be used by his driver in a public place.
2. Two points were taken in this petition. The first is that the vehicle was not being "used", within the meaning of that term in Section 42 (1) and the second is that the petitioner did not "permit" the driver to use the vehicle.
3. It is true that Chapter IV does deal with the control of transport vehicles and contemplates primarily the control of the carriage of goods for hire or for reward. Section 42 (2) lays down certain rules for determining for the purposes of that chapter whether a transport vehicle is or is not used for carriage of goods for hire or for reward; but Section 42 (1) is more general and prohibits the use of a transport vehicle for any purpose in a public place save in accordance with the conditions of a permit granted or countersigned by proper authority. It is admitted that to the knowledge of the petitioner there was no permit for the use of the vehicle. The driver took the car to convey himself to the Magistrates Court--where he was being tried for driving without a license--and back again; and in doing that the driver was certainly using the vehicle.
4. The remaining question is whether the owner can be said to have "permitted" the use of the vehicle. The verb "permit" carries with it the meaning that the person actually and knowingly allows the thing to be. done. Mere negligence such as the petitioner is said to have been guilty of by not locking up his vehicle so that the driver could not take it, would not amount to "permitting" the use of the car. Whether the petitioner actually knew that the driver was going to use the car or not we do not know; but the duty was cast on the prosecution to prove that the petitioner either used or permitted the use of the vehicle. That duty they have not succeeded in discharging. The use to which the vehicle was put was not one in the ordinary course of the petitioners business; for the driver was using the vehicle to convey himself from the garage to the Court house and back again; and so the petitioner may not have known of the use to which his motor vehicle was being put. The petitioner was therefore entitled to succeed; because the prosecution had failed to prove all the ingredients of the offence with which the petitioner was charged.
5. The petition is allowed and the conviction and sentence set aside. It is ordered that the fine, if paid, be refunded.
