Ram Sewak v. State — 1970 DIGILAW 442 (ALL)

ORDER V.G. Oak, C.J. - This revision arises out of a prosecution under the Motor Vehicles Act (hereafter referred to as the Act). Ram Sewak was found driving a jeep motor car with six passengers on hire. The accused did not hold a permit for using the jeep car as a taxi. He was, therefore, prosecuted under the Act. He pleaded guilty. The trial court accepted the plea and convicted the accused. He was fined Rs. 60 u/s 112 and was fined Rs. 590 u/s 123 of the Act. The court recommended that registration of the vehicle be suspended fop 60 days. An appeal filed by Ram Sewak was dismissed by the Civil and Sessions Judge, Gorakhpur. Ram Sewak has, therefore, come to this Court in revision. 2. It will be noticed that the Applicant has been convicted under two separate sections of the Act. The scope of the two sections will have to be discussed separately. 3. Firstly, we may consider the applicability of Section 123 of the Act. Sub-section (1) of Section 123 opf the Act states: Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permits required by Sub-section (1) of Section 42 or in contravention of any condition of such permit...shall be punishable. 4. It will be seen that conviction u/s 123 is permissible under three circumstances Firstly, there may be a contravention of Section 22, Secondly, the accused might have driven a motor vehicle without a permit as required by the Sub-section 42. Thirdly, there may be a contravention of any condition of such permit. We may consider whether the present case is covered by any of these alternatives. 5. Section 22 mentions necessity for registration. Sub-section (1) of Section 22 states: No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or...unless the vehicle is registered in accordance with this chapter.... Section 22 lays down that every motor vehicle must be registered. In the presence the jeep motor car in question has been registered. Its registration No is 4566 since the motor vehicle was registered in accordance with the Act, there was no contravention of Section 22. 6. Section 22 lays down that every motor vehicle must be registered. In the presence the jeep motor car in question has been registered. Its registration No is 4566 since the motor vehicle was registered in accordance with the Act, there was no contravention of Section 22. 6. Section 42 deals with necessity for permits Sub-section (1) of Section 42 states: No owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit.... 7. It is the Applicant's case that he is not the owner of the jeep car. The motor vehicle belongs to one Girdhari Lal. In support of this allegation an affidavit was filed by Girdhari Lal be fore the Sessions Judge. It was stated in that affidavit Girdhari Lal is the owner of jeep No. UPZ 4566 and that Ram Sewak is the driver of the jeep Thus position is accepted by the prosecution. 8. In Jayaram v. State of Mysore 1962 (2) Cri LJ 707 it was by Mysore High Court that driver of a vehicles commits no offence punishable u/s 123. Similarly, in Hari Gopal v. State 1956 AWR 122 Brij Mohan Lal, J. pointed out that Section 42 imposes certain obligation on the owner of a vehicle. No duty is cast by Sub-section (1) of Section 42 on the driver or the conductor. 9. The expression 'transport vehicle' has been defined in Clause (33) of Section 2 of the Act; "transport vehicle" means "a public service vehicle or a goods vehicle." 10. In order that a motor vehicle is classed as 'transport vehicle', the vehicle must be either for public service or for carrying goods. There is no suggestion that the jeep car in question was ever used for carrying goods. It is true that on one occasion the jeep was used by the accused for carrying six passengers. But it is doubtful whether carrying passengers on a solitary occasion would convert the jeep into a public service vehicle. 11. Sub-section (1) of Section 42 contemplates the use of a transport vehicle by its owner. In the first place, it is doubtful whether the jeep motor car in question was a transport vehicle. Secondly, the accused was not the owner of the vehicle. 11. Sub-section (1) of Section 42 contemplates the use of a transport vehicle by its owner. In the first place, it is doubtful whether the jeep motor car in question was a transport vehicle. Secondly, the accused was not the owner of the vehicle. Consequently, the accused cannot be said to have contravened Sub-section (1) of Section 42 of the Act. 12. It is common ground that there was no permit for plying the jeep car as a transport vehicle. Since there was no permit at all, there was no question of contravention of any condition of such a permit. The present case is not covered by any of the three alternatives mentioned in Sub-section (1) of Section 123 of the Act. Consequently, the Applicant's conviction u/s 123 is illegal. 13. Next we have to consider the propriety of conviction u/s 112 of the Act. Section 112 of the Act contains general provision for punishment of offences. Section 112 states: Whoever contravenes any provision of this Act or of any rule made thereunder shall, if no other penalty is provided for the offence, be punishable with fine which may extend to one hundred rupees.... 14. In this connection, we may examine the provisions of Sections 33 and 42 of Sub-section (1) of Section 33 states: If any registering authority or other prescribed authority has reason to believe that any motor vehicle within his jurisdiction (a)... ... ... ... (b) has been or is being used for hire or reward without a valid permit for being used as such, the authority may...suspend the certificate of registration of the vehicle.... Sub-section (1) of Section 42 states: No owner of a transport vehicle shall use of permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted...in the manner in which the vehicle is being used.... 15. Upon reading Sections 33 and 42 together, it appears that the Act has prohibited the use of a motor vehicle for hire without a valid permit for being used as such. This general prohibition against the use of a motor vehicle for hire without a permit is directed as much against the owner or the vehicle as against its driver or a stranger. Any one contravening the general prohibition of the Act is liable to be punished u/s 112 of the Act. This general prohibition against the use of a motor vehicle for hire without a permit is directed as much against the owner or the vehicle as against its driver or a stranger. Any one contravening the general prohibition of the Act is liable to be punished u/s 112 of the Act. It was further contended for the Applicant that punishment can be imposed u/s 112 only incases where no other penalty is provided for the offence. Section 33 itself provides for suspension of registration. It was, therefore, urged that no punishment can be imposed u/s 112 of the Act. 16. According to the marginal note, Section 112 contains a general provision for punishment of offences. The general plan of Section 112 is that every contravention of a provision of the Act or Rules amounts to an offence punishable under this Act. Such an offence is triable by a criminal court. The penalty mentioned in Section 112 is punishment awarded by a criminal court and not a departmental punishment. So although Section 33 provides for suspension of registration, that is not the penalty contemplated by Section 112 of the Act. Section 123 being out of the way, there is no express provision in the Act providing for penalty for the offence under discussion. The present case will, therefore, fall under the residuary Section 112. The Applicant was rightly convicted u/s 112 of the Act. 17. Lastly, the Appellant has objected to the suspension of the registration of the vehicle. Firstly, the Applicant is not the owner of the vehicle. He is not directly concerned with the question of registration of the vehicle. Secondly, the court merely made recommendation about suspending the registration. The decision about suspension had to be taken by the transport authorities. For these reasons, recommendation of the court on this point may be flowed to stand. 18. The revision is partly allowed. Ram Sewak's conviction and sentence u/s 123 of the Motor Vehicles Act are set aside. His conviction and sentence u/s 112 of the Motor Vehicles Act are upheld. If any excess fine has been aid, it shall be refunded.