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1955 DIGILAW 359 (ALL)

Hari Gopal v. State

1955-11-19

BRIJ MOHAN LALL

body1955
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. 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. 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 responsible "as far as may be reasonably possible having regard to his duties" for the due performance of the provisions of the Act and of the rules made thereunder. But it must be remembered that, having regard to his own duties, he cannot be expected to supervise the issuing of tickets. Tickets are issued by the booking clerk shortly before a bus starts. At that time the driver is expected to examine his vehicle and to see whether it is road-worthy. It is not expected of him, consistently with the due discharge of his own duties, to go to the booking office and to see that every passenger has been given a ticket. I am, therefore, of the opinion that the driver could not be convicted u/s 112 of the Act on the ground that tickets were not issued to all the passengers. In this respect also the authority cited above supports the view which I have taken. 6. Lastly comes the conviction recorded against Hari Gopal, the driver, for not possessing a spare wheel. The learned Judge is of the opinion that this conviction should also be set aside. In this respect I do not agree with him. Rule 165(a) runs as follows: Save as otherwise specified by the Regional Transport Authority in respect of municipal or cantonment areas, every public service vehicle shall at all times be equipped with not less than one spare wheel or rim fitted with a pneumatic tyre in good and sound condition ready inflated, and mounted, in such a way that it could be readily dismounted and fitted to the vehicle in the place of any one of the road wheels. 7. Reverting again to Rule 79(i), I am of the opinion that it was the driver's duty to sec that there should have been a spare wheel before the vehicle was put on the road. 7. Reverting again to Rule 79(i), I am of the opinion that it was the driver's duty to sec that there should have been a spare wheel before the vehicle was put on the road. The word "as far as may be reasonably possible having regard to his duties" do not operate in the driver's favour. It is the duty of the driver to see that the vehicle is in good condition and is equipped with all necessary things before it is actually put into motion. His duty did, in my opinion, require that he should have seen that there was a spare wheel in the vehicle as prescribed by Rule 165(a) of the U.P. Motor Vehicles Rules. In as much as no such wheel was found the driver was guilty of having committed a breach of Rule 79(i). He was, therefore, rightly convicted u/s 112 of the Act. 8. The result is that I accept the reference in part. Hari Gopal's conviction and sentence u/s 112 of the Act on the ground that tickets were not issued to all the passengers are set aside. The find, if realised, shall be refunded. 9. The convictions of both Hari Gopal and Sheonath Das u/s 123 of the Act are altered to those u/s 112 of the Act for having caused the contravention of Rule 79(viii). Sheonath Das's sentence is maintained, whereas the amount of fine imposed on Hari Gopal is reduced from Rs. 25/- to Rs. 20/-. 10. The recommendation for setting aside Hari Gopal's conviction u/s 112 of the Act for not possessing a spare wheel is rejected. 11. Let the papers be returned.