State vs Raghavan Pillai and Another

Raman Nayar, J.—This appeal and Revision Petition arise out of C. C. No. 1095 of 1957 on the file of the Sub-Magistrate of Quilon. The two accused persons, the first the owner and the second the driver, of Motor Lorry No. K. L. Q. 1885 were charged u/s 123(1) read with Section 42(1} of the Motor Vehicles Act (4 ot 1939) the allegation being that, on 21-9-1957 the 2nd accused drove "the lorry along a public road which was not among the routes authorised by its permit. When questioned u/s 242 Cr. P. C. both the accused admitted the offence and had no cause to show against conviction. They were accordingly convicted on their own plea, and the offence being admittedly not their first offence under the section, the learned Magistrate sentenced each of them to a fine of Rs. 500/- which, in the terms of the proviso to the section, is, in the absence of special reasons, the minimum sentence.

Both the accused appealed and, in appeal, the District Magistrate of Quilon confirmed the conviction and sentence passed against the 1st accused. At the same time he acquitted the 2nd accused on the score that a driver who is not also the owner of the vehicle in question cannot be guilty of an offence u/s 123(1) of the Act. In doing so, he followed the decision in Bansraj Vs. State, The 1st accused has come up oiv revision white the State has appealed against the acquittal of the 2nd accused.

That the acquittal of the 2nd accused is bad and has to be set aside can admit of no doubt. Whatever might have been the position before the amendment of Section 123(1) by Act 100 of 1956 when it could have been argued that one person cannot contravene a provision which enjoins something not on him but on another -- the section as it then stood, it will be noticed punished the contravention of the provisions of Sub-section (1) of Section 42 which sub-section contains an injunction only against the owner so that it could be said that a mere driver, who is not also the owner could not be guilty of a contravention of that sub-section, no such argument is available after the amendment. The amended section expressly states that any person driving a motor vehicle without the permit required under Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which the vehicle may be used is punishable. This makes it abundantly clear that notwithstanding that Section 42(1) places an obligation only on the owner, the driving of the vehicle by any other person, either without a permit or in contravention of the conditions of the permit, is an offence, This has been pointed out in a recent Division Bench decision of this Court in State Vs. K. Kesavan and Another, where, moreover, the view taken in The Public Prosecutor Vs. Jevan and Others, that even under unamended section the driver is liable was preferred to the view taken in (S) Bansraj Vs. State,

We allow Crl. Appeal No. 44 of 1958, set aside the acquittal of the 2nd accused, and convict him u/s 123 (1) read with Section 42(1) of the Motor Vehicles Act. With regard to the sentence, we think it proper to restore the sentence of a fine Rs. 500/-(with a default sentence of one month''s simple imprisonment) imposed by the trial magistrate and we accordingly restore it. This, as we have observed, is in the absence of special reasons, the minimum sentence under the proviso to Section 123(1). It has been urged before us that the 2nd accused is only a motor driver and must therefore be presumed to be poor, that he might have pleaded guilty in ignorance or the provision imposing a minimum sentence, and that this is a conviction recorded in an appeal against acquittal. And it is said that these would be special reasons justifying a lesser sentence. We cannot agree.

The argument in the revision petition filed by the 1st accused is that there was, in fact, no admission, of gilt by him. When questioned u/s 242 Cr. P. C. a vital particular of the offence, namely that he allowed the motor vehicle in question to be used in contravention of the permit, was not put to him and his admission of the facts actually put to him cannot, in the Circumstances, amount to an admission of the offence since those facts, in the absence of this vital ingredient, do not make up the offence. This argument seems to us at best technical, and sitting in revision, we are not disposed to entertain it, although to the objection that there was, in reality, no admission of guilt and that therefore no conviction could proceed u/s 243 Cr. P. C., the learned Public Prosecutor''s reliance on Sections 225 and 537(b) can be of no avail. What happened was that, in questioning the 1st accused u/s 242 Cr. P. C., the learned Magistrate read over to him the charge-sheet filed by the police. The charge-sheet did not expressly state that the 1st accused had allowed the lorry to be used on the forbidden route, but presumably left that to be inferred from the statement that the 1st accused was the owner of the lorry, for, ordinarily, a servant obeys the directions of his master in acting in the course of his employment. However, we have little doubt that, in fact, the 1st accused must have been aware that his allowing the lorry to be so used was a necessary ingredient of the offence when he pleaded guilty to the charge. He had the assistance of a lawyer from the very beginning and it was under legal advice that he pleaded guilty to a charge which expressly mentioned that the offence alleged against him was one falling u/s 123(1) read with Section 42 (1) of the Motor Vehicles Act, (The charge did not however mention the specific name given to the offence by Section 123(1) in which case it would have been a sufficient charge u/s 221(2) Cr. P. C: notwithstanding that the ingredients of the offence were not given; and hence it is not possible to rely on Section 221(5) as the learned Public Prosecutor seeks to do for the purpose of saying that the charge implies all the necessary ingredients). It is difficult to believe that he was not advised of the ingredients of the offence, and we are satisfied that he must have known that he could not be guilty unless he had allowed the use of the motor vehicle on the prohibited route, and that it was with this knowledge that he pleaded guilty. In fact the case put forward by the 1st accused in his memorandum of appeal was that the lorry was taken along the prohibited route for the purpose of transporting materials for some urgent repairs to bis house and that this was an emergency bringing the case within the exception in Section 123(2) of the Motor Vehicles Act. There is thus on record a virtual admission that the 1st accused did, in fact, allow the lorry to be used on the route in question.

We see no ground to interfere with the con viction or the sentence entered against the 1st ac cused and we dismissed his petition, Crl. R. P. No. 228 of 1957.