Research › Browse › Judgment

Madras High Court · body

1979 DIGILAW 295 (MAD)

Rajasekaran v. State

1979-07-06

G.MAHESWARAN

body1979
Judgment The revision petitioner has been convicted of an offence punishable under rule 49-YY (i) read with section 112 of the Motor Vehicles Act and was sentenced to pay a fine of Rs. 60, in default to suffer simple imprisonment for 10 days by the learned Judicial II Class Magistrate No. IV, Coimbatore. On appeal the conviction and sentence were confirmed by the Chief Judicial Magistrate of Coimbatore and the Nilgiris at Coimbatore. 2. The facts: On 25th March, 1977 at about 21-45 hours at Palghat Road, Coimbatore, P.W. 1, the Police Officer, checked the bus bearing, registration No. TNE 5187 and it was found that the bus was carrying on 93 adult passengers made up of 79 males and 14 females and the capacity of the bus in accordance with the permit was only 78 and there has been an overload of 15 adult passengers. The revision petitioner and the conductor were charged, convicted and sentenced as stated above. On appeal, the learned Chief Judicial Magistrate of Coimbatore, as already pointed out, confirmed the conviction and the sentence. 3. Mr. K.M. Santhanagopalan, the learned Counsel appearing for the revision petitioner, contended that the revision petitioner ought to have been charged under section 42 (1) read with section 123 of the Motor Vehicles Act, that the conviction under rule 49-YY (i) read with section 112 of the Act is bad and that the entire proceedings are vitiated. In support, he relied on a decision of the Supreme Court in State of Uttar Pradesh v. Bansraj and another. That was a case, where the driver of a public carrier, of which he was not an owner, was found carrying 23 passengers instead of 6 allowed under the conditions of permit granted to the owner. The vehicle was checked by a Head Constable. He was tried summarily by a First Class Magistrate, Gorakhpur, and found guilty under section 123 of the Act and was sentenced to pay a fine of Rs. 200. The question that came up for consideration before their Lordships of the Supreme Court in that case was about the liability of the driver of a motor vehicle used in contravention of the terms of the permit under section 42(1) of the Act. 200. The question that came up for consideration before their Lordships of the Supreme Court in that case was about the liability of the driver of a motor vehicle used in contravention of the terms of the permit under section 42(1) of the Act. The Supreme Court held that 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 their Lordships held was that the motor vehicle could not be driven by anyone contrary to the conditions of the permit relating to that vehicle. But the learned Counsel for the revision petitioner pointed out that not only the driver of the vehicle, but also the conductor will be covered by section 123 of the Act and will be liable for conviction and, therefore, the conviction under section 112 is bad. I am not in agreement with this contention of the learned Counsel. The Supreme Court in the ruling referred to above observed that the words “or causes or allows a motor vehicle 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“. The Court further observed that “this part of section 123 punishes an owner for contravening the provisions of section 42 (1) and that the driving of the motor vehicles, however, is a different matter and it would be driven by the owner himself or by someone other than the owner“. Therefore, in my view, the conductor, who was; in the bus issuing the tickets would not be a person liable for conviction under section 123 of the Act, as the decision very clearly lays down that the words “or causes or allows a motor vehicle to be used, or lets out a motor vehicle for use in contravention of the provisions of sub section (1) of section 42“will refer to the owner. Further the revision petitioner was not charged under section 42 (.1) read with section 123 of the Act. He was charged under rule 49-YY (i), which refers to the prohibition of a conductor of a vehicle to carry in excess of the seating capacity specified in the permit of the vehicles. This rule 49-YY (i) specifically refers to the conductor. Further the revision petitioner was not charged under section 42 (.1) read with section 123 of the Act. He was charged under rule 49-YY (i), which refers to the prohibition of a conductor of a vehicle to carry in excess of the seating capacity specified in the permit of the vehicles. This rule 49-YY (i) specifically refers to the conductor. As I am of the view that section 123 of the Act will not cover the conductor the only provision under which he can be charged is under section 112 of the Act. 4. The next contention of the learned Counsel was that there was no clear proof about the seating capacity of the permit, as the permit was not seized by the checking officer, who was a Police Officer. Most unfortunately the Police Officer has not stated anything in his evidence as to whether the permit was available on the bus at the time of checking. Much reliance was placed by the Courts below on Exhibit P-2, the trip sheet wherein it is stated that the capacity of the bus is 38+40. P.W.1 has also spoken about the capacity in his evidence in chief, which has not been controverted in cross-examination. The learned appellate authority has also stated that it was not disputed that the vehicle had a permit only for 78 persons. The learned ‘Counsel appearing for the revision petitioner stated that this statement is wrong, because the revision petitioner has denied the overloading. But I must point out that the evidence of P. W. 1 as regards the seating capacity has not been challenged and I must hold, therefore, that the seating capacity of the bus is only 78. It is clear from the evidence if P.W.1, that at the time of check there were 15 more passengers and, therefore, the overloading has been proved beyond all reasonable doubt. Both the Courts have concurred on this finding of fact and sitting in revision, I cannot say that this finding is wrong. 5. The next contention was that G.O. Ms. It is clear from the evidence if P.W.1, that at the time of check there were 15 more passengers and, therefore, the overloading has been proved beyond all reasonable doubt. Both the Courts have concurred on this finding of fact and sitting in revision, I cannot say that this finding is wrong. 5. The next contention was that G.O. Ms. No. 2771, Home, dated 31st July, 1952, which makes it obligatory on the part of the checking authorities to note the names and addresses of a few responsible passengers travelling in the bus at the time of check, so that they may be cited as witnesses if necessary, has not been followed by the Police Officer and, therefore, much reliance cannot be placed on the evidence of P.W.1 alone and the conclusion cannot be based on the uncorroborated testimony of P.W.1. No doubt, the Government Order says that the names and addresses of a few responsible passengers travelling in the bus should be noted. But that was not followed by P.W.1. It is not clear as to why he has not followed it. But still I am inclined to agree with the appellate authority that the non-observance of this Rule would not mean that the evidence of P.W.1 is not reliable. If. there are any features in the evidence of P.W.1, which would make it unreliable, then it would be necessary to look for corroboration. But in this particular case the evidence of P.W.1 is quite convincing, as it is supported by the production of Exhibit P-1, series, the tickets seized and the entry in Exhibit P-2, the trip-sheet. In these circumstances, I feel that there are no reasons to interfere with the findings of the appellate authority. 6. The revision case fails and is dismissed.