JUDGMENT

Brij Mohan Lall, J. - This is a reference u/s 438 of the Code of Criminal Procedure by the learned second Temporary Civil and Sessions Judge of Banaras.

2. Hari Gopal, the driver, and Sheonath Das, the conductor, of Bus No. UPL 1682 S.C., have been convicted by a learned Magistrate, first class, of Banaras. Sheonath Das has been convicted u/s 123 of the Motor Vehicles Act (IV of 1939) and sentenced to pay a fine of Rs. 15/- on the ground that the motor vehicle, when checked, was found carrying 49 passengers instead of 38 which was the maximum permissible strength. Against Hari Gopal three convictions have been recorded as follows:

(1) u/s 123 of the Act for carrying 49 passengers in place of 38. A fine of Rs. 25/- has been imposed under this head.

(2) u/s 112 of the Act on the ground that ticket were issued to only 31 passengers. Punishment awarded under this head is a fine of Rs. 10/-.

(3) u/s 112 of the Act for not possessing a spare wheel. Punishment awarded under this head is a fine of Rs. 10/-.

3. The learned Judge did not believe the evidence produced by the prosecution for proving that there were 49 passengers in the bus, and this is one of the grounds on which he wants the conviction to be set aside. I am afraid this ground cannot be accepted as a valid ground. No appeal lay to the learned Judge and in the revision which he was hearing he should have accepted the finding of fact recorded by the learned Magistrate. This finding was based on evidence. The learned Judge could not convert himself from a court of revision to a court of appeal, and this reference, in so far as it purports to be based on the difference of opinion about the value of oral evidence between the learned Judge and the learned Magistrate cannot be entertained.

4. There is, however, another ground on which also the learned Judge recommends that the conviction u/s 123 of the Act be set aside in respect of both the accused. He points out that a conviction u/s 123 can be recorded only if the accused are found to have contravened the provisions of Sub-section (1) of Section 42 of the Act. Section 42 imposes certain obligations on the owner of a vehicle. No duty is cast by the said Sub-section on the driver or the conductor. The result therefore, is that by disobeying the directions contained in the permit the driver and the conductor do not contravene the provisions of Section 42 because that section does not impose any obligation on them. I am, thus, of the opinion that the conviction u/s 123 of the Act cannot be sustained. I am supported in this view by the case of Jagroop and Another Vs. Rex, AIR 1952 All 276 . But at the same time I am not prepared to hold that the conductor and the driver have committed no offence whatsoever. Rule 79(viii) of the U.P. Motor Vehicles Rules, 1940 imposes on them the duty not to carry in any public service vehicle passengers in excess of the seating capacity specified in the certificate of registration of the vehicle. Thus, they have been guilty of contravening Rule 79(viii). They can, therefore, be convicted u/s 112 of the Act. This section is wide enough to include a driver and a conductor within its ambit and it empowers a court to convict a person for the contravention of any rule framed under the Act. In the circumstances, I alter the conviction of both Hari Gopal and Sheonath Das from one u/s 123 to that u/s 112 of the Act. The maximum sentence that can be awarded u/s 112 of the act is a fine of Rs. 20/-. This means that Hari Gopal's sentence of fine shall have to be reduced from Rs. 25/- to Rs. 20/-. In the case of Sheonath Das the sentence shall be maintained.

5. Next comes the second charge, viz. the tickets were issued to 31 passengers only. As already stated, it is Hari Gopal, the driver, alone who has been convicted under this head. The duties of a driver are enumerated in Rules 77 and 79, and the issuing of tickets is not one of his duties. It is true that Under Rule 79(i) the driver also has been made re