The State of Mysore v. Sulaiman Dawood — 1972 DIGILAW 236 (MAD)

Range Gowda, J.-This appeal by the State is directed against the judgment and order dated 18th November, 1969, passed by the Judicial Magistrate, First Class, Bhatkal, in Criminal Case No. 658 of 1969, acquitting the respondents (who were accused Nos. 1 and 2 respectively before him and who will also hereinafter be referred to as accused 1 and 2) of the offences under sections 42 and 123 of the Motor Vehicles Act, 1939, which will be hereinafter referred to as the act. 2. Accused-2 was the owner of a motor Vehicle bearing registration No. MYX 6887, and accused-1 was its driver. The said vehicle was run, as a contract carriage, from Mangalore to Bombay and back. Exhibit P-1 is a certified copy of the permit issued by the Regional Transport Officer of Mangalore and countersigned by the State, Transport Authority of Maharashtra State, and the route specified therein was Mangalore to Bombay and back via. Udipi, Coondapur, Rulikal, Thirthahalli, Shimoga, Harihara, Hubli, Belgaum, Nippani, Satara and Poona. 3. The prosecution case was that on nth August, 1969 at about 2-30 p.m., the Regional Transport Officer of Karwar (P.W. 2) found the said vehicle going on Bhatkal-Sirsi road near Kuntavani and not on the specified route viz., Balebile Ghat and Shimoga, and passengers were picked up in the middle of that route, and the trip-sheet was also not maintained by the driver (accused-1). Therefore, both the accused were prosecuted under sections 42 and 123 of the Act, for having contravened the conditions of the permit by taking the vehicle on a route not specified in it and also for having picked up passengers in the middle of that route. Accused-1 was further prosecuted for an offence under section 112 of the Act read with sub-rules (1) and (2) of Rule 149 of the Mysore Motor Vehicles rules, 1963, which will hereinafter be referred to as the Rules, for not having maintained the trip-sheet. 4. The prosecution, in support of its case, examined three witnesses. P.W. 1 Nanjappa was the Assistant Sub-Inspector who sent up the charge-sheet, P.W. 2 was the Regional Transport Officer of Karwar, and. P.W. 3 was the Divisional Security Inspector of the Mysore State Road Transport Corporation at the material time. 5. The evidence of P.Ws. 4. The prosecution, in support of its case, examined three witnesses. P.W. 1 Nanjappa was the Assistant Sub-Inspector who sent up the charge-sheet, P.W. 2 was the Regional Transport Officer of Karwar, and. P.W. 3 was the Divisional Security Inspector of the Mysore State Road Transport Corporation at the material time. 5. The evidence of P.Ws. 2 and 3 was to the effect that on nth August 1960 at about 2-30 p.m. the said vehicle was found going on Bhatkal-Sirsi Road near Kuntavani which was not the specified route, that passengers were also picked up in the middle of that route, and that accused-1 who was required to maintain the trip-sheet had not maintained it. 6. Accused-1 did not dispute the fact that he was driving the said Vehicle on that day and that it was checked by P.W. 2 near Kuntavani on Bhatkal-Sirsi Road. He, however, pleaded that the specified route viz.. Balebile Ghat and Shimoga, Was blocked on that day and that therefore he was obliged to take the vehicle on Bhatkal-Sirsi Road, and in support of his version that that route was blocked on that day two witnesses were examined viz., D.W. 1 Vadiraja and D.W. 2 Neelakanta. He denied that passengers Were picked up in the middle of that route and maintained that there was no contravention of the conditions of the permit. He also denied that he had not maintained the trip-sheet. 7. Accused-2 (the owner of the vehicle) pleaded that he was not aware about Accused-1, taking the vehicle on that route. He also denied that the passengers were picked up in the middle of that route and that there was contravention of any of the conditions of the permit. 8. The learned Magistrate taking the view that the word mentioned in. the permit is ‘area’ and not ‘route’, that the two words are not synonymous and that if it was the intention of the authorities who issued the permit that the vehicle should be run on a particular route and not in a particular area between the two termini they Would have mentioned so in it, came to the conclusion that by taking the vehicle on Bhatkal-Sirsi Road, accused-1 did not go in an unauthorised road and did not contravene any of the conditions of the permit. He also came to the conclusion that there was no evidence to show that passengers were picked up in the middle of that route contrary to the conditions of the permit. In the result, he acquitted both the accused of the offences under sections 42 and 123 of the Act. However, the learned Magistrate found accused-1 guilty of the offence under section 112 of the Act read with sub-rules (1) and (2) of rule 149 of the Rules as in his opinion the trip-sheet which he was required to maintain was not maintained by him, and convicted him of that offence and sentenced him to pay a fine of Rs. 5 and in default, to suffer simple imprisonment for a week. 9. Accused-1 has not challenged the conviction and sentence passed against him, whereas the State is this appeal has assailed the legality and the correctness of the said order of acquittal. 10. The conclusion reached by the learned Magistrate that it is not shown by reliable and satisfactory evidence that accused-1 picked up passengers in the middle of that route, was not seriously challenged before us. Indeed, the learned Government Pleader could not point out from the evidence on record that the learned Magistrate was not justified in reaching that conclusion. Therefore, we are not inclined to interfere with that conclusion, and consequently the acquittal of the accused for that offence cannot be disturbed. 11. However, the main contention advanced by the learned Government Pleader in this appeal is, that the learned Magistrate was clearly in error in reaching the conclusion that there was no contravention of the conditions of the permit even though the vehicle Was found going on a route not specified in the permit. Elaborating the contention what the learned Government Pleader submitted was, that it was open to the authorities while granting the permit under section 51 of the Act to specify the route on which the vehicle should be used, that in the instant case the route on which the vehicle should be used was clearly specified in the permit and it was not open to the accused to choose any route other than that, and that it was a case of clear contravention of the conditions of the permit. 12. Section 51(2)(i) of the Act on which the learned Government Pleader depended reads thus: “51. 12. Section 51(2)(i) of the Act on which the learned Government Pleader depended reads thus: “51. (2) The Regional Transport Authority, if it decides to grant a contract carriage permit, say. subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely: (i) that the vehicle or vehicles shall be used only in a specified area or on a specified route or routes. ....................................................” He argued that merely because the word ‘route’ is not mentioned in the permit it was wrong on the part of the learned Magistrate to think that the route mentioned therein was not a specified route and that it was open to the accused to use an alternative route (Bhatkal-Sirsi). He also argued that even where the specified route was blocked for some reason or other the accused could not have made use of an alternative route as the Act as it stood then did not provide for it. 13. On the other hand, Sri Mohandas Hegde, learned Counsel for he accused, contended that under the permit issued the destination being Mangalore to Bombay the accused could use the vehicle in any route within that area, and that they were bound to use only the route mentioned in the permit. 14. We find it difficult to accept the contention of Sri Hegde. Section 49 of the Act provides for an application to be made for the grant of a contract carriage permit, section 50 provides for the procedure to be followed in dealing with such applications, and sect on 51 deals with the grant of permit. Sub-section (2)(i) of section 51, as mentioned earlier, empowers the authority issuing the permit to specify the area or the route on which the vehicle shall be used. In the present case, the route on which the vehicle should be used, was clearly specified in the permit issued to the accused. There cannot be any doubt that the authorities while specifying that route acted under sub-section (2)(i) of section 51 of the Act. Therefore, when a permit was issued to the accused with a condition that the vehicle should be used only on the route specified therein, it was not open to the accused to make use of any other alternative route lying between the two termini. Therefore, when a permit was issued to the accused with a condition that the vehicle should be used only on the route specified therein, it was not open to the accused to make use of any other alternative route lying between the two termini. It is no doubt true, evidence was let in to show that route was blocked and accused-1 was put to the necessity of making use of an alternative route viz., Bhatkal-Sirsi, and the learned Magistrate believed the evidence given by D.W. 2 to that effect. But still, the accused were not entitled to make use of an alternative route not specified in the permit even though they Were faced with such a situation as the Act as it stood then did not provide for it, as rightly contended by the learned Government Pleader. 15. Sub-section (2) of section 123 of the Act as it stood then, on which Mr. Hegde relied, is also of no assistance to him. That sub-section did not provide for making use of an alternative route which was not specified in the permit, when the specified route was blocked. By using the route Bhatkal-Sirsi which was not the specified route in the permit, accused-1, in our opinion, clearly contravened one of the provisions of the permit, which was punishable under section 123 of the Act. 16. Now, the question is whether accused-2 who was the owner of the said vehicle, is also liable to be punished for such contravention. Admittedly, he was not present in the vehicle at the material time. When examined under section 342, Criminal Procedure Code, he stated that he was not aware that the driver (accused-1) was taking the vehicle on that route. There is also no evidence to show that the driver contacted him and he authorised the driver to drive the Vehicles on the said route or that he connived at such driving of the vehicle. Under such circumstances, when there is absolutely no evidence about the requisite mens rea, can it be said that he (the owner of the vehicle) is also guilty along with the driver for such contravention which is punishable under section 123 of the Act? 17. As we would presently point out, there is divergence of judicial opinion on, this question. 18. Sections 42 and 123 in so far as they are material for our purpose, read thus: “42. 17. As we would presently point out, there is divergence of judicial opinion on, this question. 18. Sections 42 and 123 in so far as they are material for our purpose, read thus: “42. Necessity for Permits: (1) 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 granted or countersigned by a Regional or State Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used. 123. (1) 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 permit required by sub-section (1) of section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for a first offence with fine which may extend to one thousand rupees and for a subsequent offence if committed within three years of the commission of a previous similar offence, with imprisonment which may extend to six months or with fine which may extend to two thousand rupees or with both”. 19. The learned Government Pleader contended that section 123 of the Act casts vicarious liability on the owner if the driver is found using the vehicle contrary to the provisions of section 42 (1) of the Act and that mens rea is not one of the ingredients of the offence, and submitted that the owner of the vehicle is equally liable whether or not he was aware of such act committed by the driver. He sought to derive support to his contention from the following observations of the Supreme Court in State of Uttar Pradesh v. Bansraj1: "Section 42 is headed ‘necessity for permits’. The language of the section employs prohibitive or negative words and therefore its legislative intent is that the statute is mandatory. The negative words convey a forbidding of the doing of the act prohibited and from the use by the legislature of the words "no owner of a transport vehicle shall use or permit the use...." in section 42(1) a total prohibition against user of the vehicle except in accordance with the conditions of the permit is indicated. The negative words convey a forbidding of the doing of the act prohibited and from the use by the legislature of the words "no owner of a transport vehicle shall use or permit the use...." in section 42(1) a total prohibition against user of the vehicle except in accordance with the conditions of the permit is indicated. Further the words "authorising the use of the vehicle in that place in the manner in which the vehicle is being used" have reference to the transport vehicle itself and not to the owner that is to say section 42(1) does not only prohibit the owner from using the transport vehicle contrary to the conditions of the permit but there is an express provision in the section that the permit authorises the use of the vehicle in the place and in the manner it is being used, and that it is to be used in accordance with the conditions of the permit. Thus construed section 42(1) contemplates not only prohibition against the user by the owner of the vehicle or his permitting its user in a manner contrary to the conditions of the permit but it also contemplates that the vehicle itself shall be used in the manner authorised by the permit. The prohibition therefore is not merely against the use by the owner but against the use contrary to the conditions of the permit of the vehicle itself. Section 123 is in the Chapter dealing with offences and penalties. The marginal note shows that the section intends to punish, and that the intention was to provide for punishment of every person who drives a motor vehicle in contravention of the provisions of sub-section (1) of section 42. We have said above that section 42(1) requires the use of a transport vehicle in accordance with the conditions of the permit and that it does not merely prohibit its user but the owner contrary to the conditions of the permit. Therefore, when a transport vehicle is driven by anyone in contravention of the terms of the permit, it is in contravention of the provisions of section 42(1). Section 42(1) is not a penalising section. For its breach section 123 provides the penalties. The Legislature advisedly did not use the word ‘owner’ in section 123 of the Act. Therefore, when a transport vehicle is driven by anyone in contravention of the terms of the permit, it is in contravention of the provisions of section 42(1). Section 42(1) is not a penalising section. For its breach section 123 provides the penalties. The Legislature advisedly did not use the word ‘owner’ in section 123 of the Act. Having by section 42(1) prohibited an owner from using or permitting the use of a transport vehicle contrary to the conditions of the permit and having clearly stated therein, that the permit granted by the Regional or the Provincial Transport Authority authorised the use of the vehicle in the manner in which the vehicle was to be used, the Legislature provided punishment for anyone who drove a motor vehicle or caused or allowed a motor vehicle to be used or lets out a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 42. It is for this reason that the Legislature used the word ‘whoever’ and did not limit the punishment set out in section 123 to the owner himself. The Legislature intended that no motor vehicle should be driven by anyone contrary to the provisions of section 42(1) and that if it was driven in contravention of those provisions he was liable to punishment. The two sections read together do not lead to the conclusion that section 123 only makes the owner liable to punishment. The word ‘or causes or allows a motor vehicle for use to be used or lets out a motor vehicle for use in contravention of the provisions of sub-section (1) of section 42’ may well refer to the owner. That is to ray, this part of section 123 punishes an owner for contravening the provisions of section 42 (1). The driving of the motor vehicle, however, is a different matter. It could be driven by the owner himself or by some one other than the owner. Therefore, the words "whoever drives a motor vehicle...in contravention of the provisions of sub-section (1) of section 42" would cover both the owner and one who is not the owner. What is made punishable is the driving of the motor vehicle by anyone contrary to the provisions of section 42(1). That is to say, the motor vehicle cannot be driven by anyone contrary to the conditions of the permit relating to that vehicle". What is made punishable is the driving of the motor vehicle by anyone contrary to the provisions of section 42(1). That is to say, the motor vehicle cannot be driven by anyone contrary to the conditions of the permit relating to that vehicle". In that case, one was the driver of a public carrier and the other was the driver of a private station wagon; the former was found carrying 26 passengers instead of six allowed under the conditions of the permit and the latter was found carrying 13 passengers in the wagon which had no permit for carrying passengers for hire; therefore both of them were prosecuted under section 42 read with section 123 of the Act (IV of 1939) as it then stood and were convicted; the driver of the public carrier went in revision to the Sessions Judge and contended that he was only the driver and therefore he could not be convicted under section 123; the Sessions Judge accepted that contention and being of the opinion that a mere driver could not be so convicted, recommended the case to the High Court, of Allahabad under section 438, Criminal Procedure Code: the matter came up before a Division Bench and the interpretation which the High Court put on section 42(1) was that under the section it was the owner alone who was interdicted from using or permitting the use of the vehicle save in accordance with the conditions of a permit, and therefore if the vehicle was used against the conditions of the permit no one else including the driver could be guilty under section 123 of contravention of the terms of the permit in that view the reference was accepted and the conviction and sentence were set aside; the appeal preferred by the driver of the station wagon against his conviction was also allowed by the same High Court on the same ground; the State feeling aggrieved by the orders of the High Court went up in appeal to the Supreme Court. So, the question that came up for decision before the Supreme Court was whether a driver who contravened the terms of the permit under section 42(1) of the Act was liable under section 123 of the Act. The Supreme Court answered that question in the affirmative and it was in that connection that the said observations were made. So, the question that came up for decision before the Supreme Court was whether a driver who contravened the terms of the permit under section 42(1) of the Act was liable under section 123 of the Act. The Supreme Court answered that question in the affirmative and it was in that connection that the said observations were made. It is thus evident that the question of vicarious liability of the owner under section 123 for the act of the driver in contravening the conditions of a permit under section 42 (1) of the Act did not come up for consideration at all in that case; nor did the question whether mens rea is or is not required for the prosecution of the owner of a vehicle, come up for consideration. Therefore, that case the facts of which are clearly distinguishable, is not of any assistance to the learned Government Pleader. 20. The second decision relied upon by the learned Government Pleader is A. Viswanadham v. State1. In that case, a truck was found plying without a valid route permit and also without payment of tax for the relevant period and its driver when demanded did rot also produce the registration certificate or the fitness certificate or even his own driving license; therefore both the owner and the driver of the vehicle were prosecuted for offences under sections 112 and 123 of the Act and under section 7 of the Madras Motor Vehicles Taxation Act; the owner was convicted under all the three sections; the revision petition preferred by him before the Sessions Judge for making a reference to the High Court to set aside the said convictions was also rejected; thereafter he filed a revision petition challenging the legality of his convictions, before the High Court, but the driver did not file any revision petition; the High Court confirmed the conviction of the owner under section 123 of the Act observing thus: “Thus, it is clear that the user of a transport vehicle without a permit required by section 42(1) is punishable under section 123 of the Act. On the evidence in this case, it is clearly established that the vehicle in question was allowed to run in Koraput without a permit when it was checked by P.W. 2. On the evidence in this case, it is clearly established that the vehicle in question was allowed to run in Koraput without a permit when it was checked by P.W. 2. Therefore, the owner-petitioner has been rightly convicted under section 123 of the Act.” It is thus clear that even in that case the question whether the owner of a vehicle is vicariously liable under section 123 of the act for the act of the driver and mens rea is an integral part of the offence under that section, did not come up for decision. The owner in that case Was convicted as he was found to have allowed the vehicle to be used without a permit. Therefore, that case is also clearly distinguishable on facts and is not of any assistance to the learned Government Pleader. 21. The third and the last decision relied upon by the learned Government Pleader in State of Madhya Pradesh v. Ramcharan and others1. In that case, a passenger bus owned by certain Jeevanlal and driven by one Ramcharan with Ramsingh as its conductor, was found to have been overloaded by allowing more passengers to travel therein than what was permitted, and the vehicle was also not registered, the registration having expired on 30th June, 1963; therefore all the three (the owner, the conductor and the driver) were prosecuted under sections 42 read with 123 and under sections 22 read with 122 of the Act and were convicted of those offences; the Sessions Judge then made a reference to the High Court under section 438, Criminal Procedure Code, recommending that the conviction of the owner under section 42 read with section 123 may be set aside, as in his opinion the owner was not present in the bus when it was checked and therefore he could not be vicariously held liable; in rejecting that reference, Golvalker, J., took the view that even the absentee-owner was vicariously liable and said thus: "Undoubtedly criminal responsibility is generally regarded as being essentially personal in character. Even so, it is accepted that there may be occasions or cases where a person without having the guilty mind may be found guilty and punished for an offence which is actually committed by a another............ Even so, it is accepted that there may be occasions or cases where a person without having the guilty mind may be found guilty and punished for an offence which is actually committed by a another............ Thus, considering the object underlying the prohibition against overloading of the passengers, the duty cast for its due observance, the person upon whom it is imposed and the person by whom it would in ordinary circumstances be performed, it will have to be held that even the absentee owner can be held liable for the breach consequent to the overloading of the passenger bus." The learned Government Pleader strongly relied on these observations in support of his contention. 22. But, Sri Hegde on the other hand, contended that mens rea is an integral part of the offence in question and without which the owner cannot be held liable under section 123 of the Act for contravention of the conditions of the permit under section 42(1), and, in support of his contention be relied upon the decision in Lunkaran Agarwala v. State2, the facts of which are similar to those on hand. In that case, the petitioner owned a public carrier vehicle; the route permit authorised the plying of the vehicle on Cuttack-Sambalpur, Angul-Hindol. Angul-Athamalik, and Angul-Talcher during fair Weather; on 9th March, 1956 the said vehicle was found plying on Bamur-Kishorenagar Road; it was driven by one Alekhamoni; therefore the owner and the driver were both prosecuted under sections 112 and 123 of the Act and were convicted under those sections: the dirver did not challenge his convictions and it was only the owner who vent up in revision before the High Court; it was contended on his behalf before the High Court that he was not guilty in as much as he had neither permitted nor allowed his driver to ply the vehicle on the said route, nor did he authorise him to carry Muliahs in excess of the permissible limit, and therefore he could not be held liable either under section 112 or under section 123 unless it was established that contravention of those sections by the driver was knowingly permitted by the owner or made with his connivance; accepting the said contention, Narasimham, C.J., said thus: "The language of the two sections does not warrant such a view. Section 112 of the Act punishes only that person who contravenes the provisions of the Act. Section 123 penalises the person who either drives the vehicle or causes or allows the vehicle to be driven in contravention of the conditions of the permit granted under section 42 of the Act. The words ‘causes or allows’ in the aforesaid section convey the idea that the Legislature did not intend that the master should be vicariously liable for the action of his servant and that his liability would arise only if he, by has act or illegal omission, permits the driver to contravene the section. Whenever the Legislature desires that the owner should be held vicariously responsible for the action of his driver, it ha; expressly said so. Thus sub-section (2) of section 72 prohibits the plying of any motor vehicle which is not fitted with pneu- matic tyres and sub-section (4) of the same section says that if a driver drives the Vehicle in contravention of sub-section (2) the Court may presume that the offence was committed with the knowledge or under the orders of the owner of the Vehicle. Similarly, where the unladen weight of the vehicle exceeds the wight specified in the certificate of registration, the owners’ knowledge may be presumed. But in respect of other contraventions, either of section 72 or of the other provisions of the Act, the statute does not expressly, say that the court may presume owner’s knowledge. If the intention of the Legislature was that the owner must be held vicarioulsy liable for contravention of any of the conditions of the route permit by the driver, they would surely have inserted provisions similar to sub-section (4) of section 72 in section 42 of the Act. The absence of any such provisions leads to a reasonable inference that the Legislature intended that the general rule that the prosecution must prove all the ingredients of the offence beyond reasonable doubt, would apply when an owner is prosecuted for an offence under section 112 or 123 of the Act. The absence of any such provisions leads to a reasonable inference that the Legislature intended that the general rule that the prosecution must prove all the ingredients of the offence beyond reasonable doubt, would apply when an owner is prosecuted for an offence under section 112 or 123 of the Act. Hence, in the absence of any evidence to show that the owner knew, or connived at the action of the driver in taking the vehicle through Bamur-Kishorenagar road, or in carrying more than four Muliahs on the vehicle, he cannot be held guilty either under section 112 or under section 123 of the Motor Vehicles Act.“ In taking that view, His Lordship also relied upon the following observations of the Calcutta High Court in Varaj Lall v. Emperor1: "Where a particular intent or state of mind is not of the essence of the offence, a master can be criminally liable for the servant’s acts if the act is expressly prohibited, but not otherwise; and he cannot be so made liable if the act provides for liability for permitting and causing a certain thing unless it can be shown that the act was done with the master’s knowledge and assent express or implied." The said decision of the Calcutta High Court was also followed in Anantaram v. Emperor2, where the expression ‘allow’ occurring in section 6 of the Motor Vehicles Act (VIII of 1914) was interpreted to mean permission either express or implied. 23. In re Devaraja Mudaliar3, where the owner was prosecuted for overloading a lorry, the Madras High Court held that unless knowledge of such overloading can be reasonably imputed to the owner from the circumstances of the case, his criminal liability would not arise. 24. Again In re Abdul Salam Rowthor4, the Madras High Court while construing the word ‘permit’ occurring in section 42 (1) of the Act, pointed out that the word conveyed the idea that the person actually and knowingly allowed a thing to be done, and that mere negligence on his part would not suffice to show that he permitted the use of the vehicle. 25. The above said four decision viz. Nos. (5) to (8), were all referred to by Narasimham, C.J., in the said Orissa case in Lunkaran Agarwala v. State5. 26. 25. The above said four decision viz. Nos. (5) to (8), were all referred to by Narasimham, C.J., in the said Orissa case in Lunkaran Agarwala v. State5. 26. In State v. Bhagwan Singh6, a Bench of the Rajasthan High Court consisting of Bhandari and Beri, JJ., had occasion to examine the scope of sections 42(1) and 123(1) of the Rajasthan Motor Vehicles Act which corresponded to the provisions of sections 42(1) and 123(1) of the Act. In that case a driver of a vehicle was found plying the vehicle without a permit, for which the owner was also convicted; one of the questions that arose for decision was whether the owner of a vehicle was vicariously liable for the act of the driver who contravened the conditions of the permit; dealing with that question, their Lordships said thus: "The proper interpretation of the aforesaid provision is that the owner is liable if he caused or allows a motor vehicle to be used not otherwise. This means that the owner must commit an act leading to the inference that he allowed the use of the vehicle or he should be shown to have brought out that result by some illegal omission. Their Lordships of the Supreme Court in Hariprasada Rao v. The State1, approved the view taken by their Lordships of the Privy Council in Shrinivas Mall v. Emperor2, that unless the statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. In the case before their Lordships clause 22 of the Motor Spirit Rationing Order, 1941 was under consideration. It provided that no person shall furnish motor spirit otherwise than in accordance with the provisions contained in the order. Their Lordships further observed as follows: The clause is not aimed specifically against a supplier, but is general in its language, and will hit the individual person whether he be the supplier or not who contravenes the provision. It provided that no person shall furnish motor spirit otherwise than in accordance with the provisions contained in the order. Their Lordships further observed as follows: The clause is not aimed specifically against a supplier, but is general in its language, and will hit the individual person whether he be the supplier or not who contravenes the provision. The language of the clause also suggests that only the person who furnishes motor spirit contrary to the provisions of the Order will be affected by the contravention." Their Lordships took the view that the language of clause 22 does not lend support to the contention that even an innocent master will be criminally liable for an act of his servant. If we examine the language of section 123 of the Act we are led to arrive at the same conclusion. Section 123(1) makes the driver of a motor vehicle and also any other person who causes or allows the motor vehicle to be used as mentioned therein liable. He may be owner or he may be any other person. Thus, for establishing an offence under section 123 it must be proved that such person had caused or allowed the vehicle to be used. In the absence of such proof no conviction can be sustained. We are, therefore, of the opinion that section 123(1) does not cause any vicarious liability on the master for the act of the servant". 27. Therefore, the judicial opinion is overwhelmingly in favour of the view that the owner cannot be held liable under section 123 of the Act for contravention of the conditions of the permit under section 42(1) unless the prosecution establishes that contravention by the driver was knowingly permitted by the owner or was made with his connivance. In other words, mens rea is an integral part of the offence and without which the owner cannot be held liable under that section. 28. In Nathulal v. State of Madhya Pradesh2, which war a case under the Essential Commodities Act (I of 1955) a question arose viz., whether under section 7 of that Act a factual non-compliance of the Madhya Pradesh Foodgrains Dealer Licencing Order, 1958, by a dealer would amount to an offence thereunder even if there is no mem rea on his part. The facts of that case were: the appellant was a dealer in foodgrains at Dhar in Madhya Pradesh; he was prosecuted for having in stock 885 maunds and 2½ seers of wheat for the purpose of sale without a licence and for having thereby committed an offence under section 7 of that Act; the appellant pleaded that he did not intentionally contravene those provisions; his case was that he had stored the said grains and had applied for the licence and was under the belief that it would be issued to him; the Additional District Magistrate found on evidence that he had not the guilty mind and on that finding acquitted him; on appeal a Division Bench of the Madhya Pradesh High Court set aside the order of acquittal and convicted him on the basis that in a case arising under that Act "the idea of guilty mind" was different from that in a case like theft and that he contravened the provisions of that Act and the Order made thereunder; on appeal, it was contended before the Supreme Court that mens rea was an integral part of the offence; section 3(1) of that Act which the appellant was said to have contravened ran thus: "3(1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority"; dealing with that contention. Subba Rao, J., as he then was, said: "Mens rea is an essential ingredient of a criminal offence. Doubtless a statue may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would, be implied in a statute creating an offence depends on the object of the Act and the provisions thereof." It was held in that case that mens rea was a necessary ingredient under that Act; though the dealer was prohibited from carrying on business except under or in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority, since the prosecution failed to show that he intentionally contravened the provisions of that Order, the conviction of the appellant was set aside in that view. 29. We are in respectful agreement with the view taken by Narasimham, C.J., and with that of the Division Bench of the Rajasthan High Court mentioned above (4) and (9). With respect, we dissent from the view taken by Golvalker, J., in the Madhya Pradesh case in State of M.P. v. Ramcharan1. 30. In our opinion, the language of sections 42(1) and 123(1) of the Art do not lend support to the contention that even an innocent owner of a vehicle will be criminally liable for an act of the driver. The words ‘permit’, ‘allow’ and ‘cause’ used in those sections clearly indicate that mens rea is not ruled out in respect of those offences. Those words mean and imply that mens rea is a requisite ingredient of those offences. We are unable to think that the object of the Act would be defeated if mens rea is read as an ingredient of those offences. As observed by the Chief Justice of England in Brend v. Wood2, unless the statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. 31. In the present case, having regard to the object and the various provisions of the Act and having regard to the language of sections 42 and 123, it would appear to us that mens rea is a necessary requisite of the offence in question. 31. In the present case, having regard to the object and the various provisions of the Act and having regard to the language of sections 42 and 123, it would appear to us that mens rea is a necessary requisite of the offence in question. An innocent owner of a vehicle cannot, for any contravention of the conditions of the permit under section 42(1) by the driver, be held liable in view of the words ‘permit’, ‘allow’ and ‘cause’ used in those two sections. In our opinion, the said words so construed, the object of the Act will be best served and an innocent owner of a vehicle without any guilty mind will also be protected from harassment. We do not think that the Legislature while enacting the Act did not intend this. 32. It is clear that there is no evidence to show that the owner of the vehicle in question was in any way responsible for the vehicle being taken on a route not covered by the permit. In the view we have taken, he cannot be held liable for what the driver did without his knowledge namely, in taking the Vehicle on a different route not specified in the permit. Consequently, the acquittal of the owner (accused-2) of the said offence cannot be interfered with. 33. However, accused-1 (the driver) shall have to be convicted for having contravened the conditions of the permit.. The fact that the specified route was blocked on that day and he was obliged to take the vehicle in that other route, would not absolve him of his criminal liability. Therefore his acquittal will have to be set aside and he will have to be convicted under section 42 read with section 123 of the Act. 34. It was however submitted by Sri Hegde that the offence committed by accused-1 is only a technical offence and he committed it as the specified route was blocked, and that therefore a lenient view may be taken regarding sentence. 35. Taking into consideration that we are reversing the order of acquittal in so far as it relates to accused I nearly 2½ years after it was passed and having regard to the fact that he took the vehicle on a route not specified in the permit as the specified route was blocked, we are constrained to take a lenient view on the question of sentence. In our opinion, ends of justice would be properly met if he is sentenced to pay a fine of Rs. 25 and in default, to suffer simple imprisonment for a period of one week. 36. In the result, for the reasons stated above, the appeal is allowed in part, the order of acquittal in so far as it relates to accused 1 is set aside and he is convicted under section 42 read with section 123 of the Act and is sentenced to pay a fine of Rs. 25 (Rupees twenty-five) and in default to suffer simple imprisonment for one week and the order of acquittal in so far as it relates to accused 2 shall remain undisturbed. S.V.S. ----- Appeal allowed in part.