Ago Singhe V. De Alwis (P.C.808)

1945 Present: Keuneman, Wijeyewardene and Rose JJ.

AGO SINGHE, Appellant and DE ALWIS (P. C. 808), Respondent.

1290-M. C. Ratnapura, 41,604.

Omnibus-Conviction of conductor for overloading omnibus-Charge against driver for aiding and abetting-Ingredients necessary for conviction- Motor Car Ordinance, No. 45 of 1938, ss. 111 (2) and 151.

Where, after the conductor of an omnibus had been charged and dealt with for overloading, the driver was charged with aiding and abetting the conductor in the commission of that offence.

Held, that the driver, by his act of driving the omnibus, could not be said to have facilitated the commission of the offence and was, therefore, not guilty of abetment, in the absence of evidence of instigation or conspiracy.

Mere knowledge on the part of the driver that the omnibus was over crowded would not be sufficient to make him liable for abetting the offence.

CASE referred by Howard C.J. to a Bench of three Judges, under section 48 of the Courts Ordinance.

H. V. Perera, K.C. (with him G. P. J. Kurukulasuriya and Ananda Pereira), for the accused, appellant.-The accused has been charged and convicted under sections 111 (2) and 151 of the Motor Car Ordinance

No. 45 of 1938. Section 111 (2) speaks of a state of things over which the conductor has full control and for which he alone is liable. The conductor's position in sub-section (2) of section 111 may be compared with the driver's position in sub-section (1) of that section. In view, however, of the decision in Gough v. Rees 1 it is conceded that under certain circumstances the driver may be convicted for abetting the conductor in the commission of the offence of overloading.

The accused, in the present case, cannot be said to have done anything in the nature of abetment, within the meaning of that term in section 100 of the Penal Code. His mere presence or failure to interfere when the offence was being committed by the conductor does not amount to abetment. The decisions in Attorney-General v. James Singho2 and Thangiah v. Batchi Appu3 are not inconsistent with the ruling in De Silva v. Fort Police 4. The conductor's offence of overloading was already complete prior to the driver's act of driving.

T. S. Fernando, C.C., for the Crown.-That the offence described in section 111 (2) of the Motor Car Ordinance can be abetted is beyond dispute-Attorney-General v. James Singho (supra); De Silva v. Fort Police (supra); Gough v. Bees (supra).

What section 111 (2) penalises is not the existence of a state of things but the act of carrying passengers in excess of the maximum number specified under section 61. In view of the definition of " passenger " in the interpretation section 176, the offence is committed by the conductor when the number of persons found carried in the bus is in excess of such maximum number. But the driver is the person whose act makes it possible for the persons to be carried in the bus.

Under section 112 it is not only the conductor who is empowered to prevent persons entering the bus when it is full; the driver has been given a similar power. A duty not to drive when there is an excess of persons should be implied in view of this power considered in conjunction with section 42 which makes it an offence for any person to use a motor car in contravention of any of the conditions in the licence.

[WIJEYEWARDENE J.-Can the driver be said to be using the bus by merely driving it?] Yes, in view of the decision in Gifford v. Whittaker 5.

[KEUNEMAN J.-The charge in this case makes no reference to section 42 at all. Is it open to us to convict the accused for a contravention of section 42?]

Section 42 justifies the argument that there is a duty on the driver not to drive in contravention of the conditions of the licence.

The form of the licence is provided by sections 31 and 34. Form 18 in the Second Schedule is the appropriate licence form. It is

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