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Case Number

Ref. No. 359 of 1952

Attorney(S)

Jagdish Swarup Senior S.C. and Sri Ram Dy. Govt. Advocate

Judges

Hon'ble Mr. Balram Upadhya
Hon'ble Mr. M.C. Desai

Acts

Sec. 123 read with Sec. 42 of the Motor Vehicles Act.
Sec. 123 read with Sec. 42 of the Motor Vihicles Act
Sec. 42 read with Sec. 123 of the Motor Vehicles Act.
.2. Sec. 123(1) of the Motor Vehicles Act
Sec. 42(1) of the Motor Vehicles Act
MOTOR VEHICLES ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The applicant, Bansraj, a driver, was prosecuted after being found carrying 23 passengers in a public carrier for which the permit allowed only 6 passengers. The Magistrate convicted him and sentenced him to a fine of Rs. 200 and, in default, rigorous imprisonment for three months under Sec. 42 read with Sec. 123 of the Motor Vehicles Act.

On appeal, it was urged before the Sessions Judge, Gorakhpur, that because the applicant was a driver (and not the owner) he could not be convicted under those provisions. The Sessions Judge recommended that the conviction be set aside and made a reference to this Court. The reference was heard by a Bench (including Upadhya, J. and Desai, J., with earlier mention that Mukerji, J. considered a Bench appropriate because of divergent authority). The Court accepted the reference, set aside the conviction and sentence, and acquitted the applicant. The Court ordered that any realised fine be refunded.

Legal Issues Presented

Whether a person who is not the owner of a transport vehicle (specifically a driver) can be convicted under Sec. 123(1) of the Motor Vehicles Act for "driving a motor vehicle in contravention of the provisions of sub-sec. (1) of Sec. 42" when Sec. 42(1) by its terms prohibits the act only by the owner.
Whether Sec. 123(1) is properly construed as extending criminal liability to drivers or other non-owners who drive or cause the vehicle to be used in a manner inconsistent with the permit, notwithstanding that Sec. 42(1) imposes its prohibition expressly on the owner.

Arguments of the Parties

Applicant / Defence Arguments

It was urged before the Sessions Judge (and reiterated in the reference) that the applicant being a driver, and not the owner, could not be convicted under Sec. 42(1) and Sec. 123 read with it because Sec. 42(1) imposes duties only on the owner.
An argument (attributed in the opinion to Mr. Jagdish Swarup) advanced that the real offence punished by Sec. 123 was putting a vehicle on the road otherwise than in accordance with a permit and that whoever commits that act should be punishable; the Court rejected construing Sec. 42(1) in that broader way.

Prosecution / Lower Courts' Position (as reflected in the opinion)

The factual case presented by the prosecution was that the driver was carrying 23 passengers though the permit allowed only 6; the Magistrate convicted the driver under Sec. 123 read with Sec. 42.
The Sessions Judge considered earlier authorities and took the view (in the recommendation) that a driver could not be held to have contravened Sec. 42(1) which by its terms applied only to the owner, and therefore recommended quashing the conviction. The opinion also records that other courts had construed Sec. 123 more broadly to reach drivers, which led to the reference because of divergent authority.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagroop v. Rex (Desai, J.)	Held that under Sec. 42(1) it is the owner and nobody else (e.g., driver or conductor) who is forbidden to use or permit the use of a vehicle save in accordance with the permit; accordingly a driver cannot be guilty of contravening Sec. 42(1).	The Court accepted this view and relied on it to set aside the conviction of the driver in the present matter.
Emperor v. Amrutlal Chunnilal Mehta, A.I.R. 1945 Nagpur 263	Pollock J.'s decision that the managing partner (owner/manager) fell within 'owner' under Sec. 42 and was responsible for ticket-issue conditions; the driver and conductor were not held to have duties amounting to contravention of Sec. 42(1).	Referred to as an authority supporting the proposition that duties/penalties in Sec. 42 do not, in general, extend to drivers or conductors; used in argumentation but the Court emphasised the limited scope of that case's facts.
Public Prosecutor v. Jevan (single Judge decision)	Short judgment holding that driving a transport vehicle on a public road without a permit contravenes Sec. 42(1); did not address whether a non-owner could contravene Sec. 42(1).	The Court noted the judgment but criticised that the issue whether non-owners could contravene Sec. 42(1) was not considered in that decision; the judgment was not followed as authoritative on that specific point.
Division Bench, Nagpur (A.I.R. 1944 Nagpur 89)	Held that Sec. 42(1) applies only to owner but Sec. 123 applies to anyone who drives or causes or allows a vehicle to be used in contravention of Sec. 42(1); concluded Sec. 123 is wider than Sec. 42(1).	The Court recorded this view but rejected the reasoning and declined to follow it, saying no adequate reason was given for treating Sec. 123 as broader in the necessary way.
A.I.R. 1952 Punjab 45	Observed that prima facie Sec. 42 is designed to punish the owner while Sec. 123 is designed to punish the person who drives or causes or allows a motor vehicle to be used in contravention of the permit's conditions.	Referred to in the opinion as one of the authorities taking a broader view of Sec. 123; the Court analysed and distinguished this view in its reasoning.
A.I.R. 1941 Madras 845	Held that Sec. 123 operates as a residuary provision meant to punish persons other than the owner who use a vehicle contrary to permit conditions.	The opinion discussed this authority as part of the body of cases adopting a broad reading of Sec. 123; the Court evaluated and rejected that construction in favour of a strict reading tied to Sec. 42(1)'s language.
A.I.R. 1954 Rajasthan 250 (Justice Dave)	Stated that Sec. 123 is wider in scope than Sec. 42(1) and that the words "whoever drives" are wide enough to cover drivers other than owners.	The Court quoted and considered this opinion but disagreed, concluding that the restrictive wording of Sec. 42(1) means non-owners cannot be said to contravene it.
Umashankar v. Rex (Agarwala, J., A.I.R. 1950 All. p. 234)	Observed that Sec. 42 prohibits use except in accordance with permit and that Sec. 123 makes those responsible for such use guilty; held driver convictions could be maintained.	The Court discussed the case and expressly disagreed with the view that Sec. 123 should be read to punish non-owner drivers simply because the words "whoever drives" are wide.
Chandra Deo Singh v. The State (Calcutta High Court)	Held that a driver other than the owner who drives contrary to permit terms would be covered by Sec. 123(1).	The opinion noted this authority as taking the broader view; nonetheless the Bench in the present reference declined to follow the broader construction.
Fazal Ahmad v. The State (Criminal Reference No. 115 of 1951, decided 13-11-52)	Held that a non-owner (F) who drove a vehicle against permit conditions was convicted under Sec. 123; the opinion records that the judgment did not discuss how the non-owner contravened Sec. 42(1).	The Court critiqued the reasoning of that decision as lacking discussion on the precise point whether a non-owner can contravene Sec. 42(1), and did not treat it as decisive here.

Court's Reasoning and Analysis

The Court's analysis proceeds from a close textual reading of the relevant provisions and the structure of the Motor Vehicles Act:

Textual focus on Sec. 42(1). The Court emphasises that Sec. 42(1) expressly uses the phrase "No owner of a transport vehicle shall use or permit the use of the vehicle ... save in accordance with the conditions of a permit." The provision, by its plain language, imposes a prohibition only on the owner.
Relationship between Sec. 42(1) and Sec. 123(1). Sec. 123(1) prescribes punishment for "whoever drives a motor vehicle 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-sec. (1) of Sec. 42." The Court frames the question whether a person who is not an owner can be said to "contravene" Sec. 42(1) when Sec. 42(1) does not impose obligations on that person.
Plain-meaning and penal construction. The Court invokes the established principle that penal statutes must be interpreted according to their clear, unambiguous language and that the subject should be held free unless found guilty by the language of the statute. Because Sec. 42(1) prohibits owners from certain acts, only an owner can be said to contravene that provision. The Court rejects attempts to "strain" the words of the statute to conform to a perceived legislative intention.
Critique of contrary authority. The Court analyses a series of authorities that construed Sec. 123 broadly to punish non-owner drivers. It finds those decisions lacking in reasoning on the critical point: how a non-owner can be said to contravene Sec. 42(1) when the latter imposes duties only on owners. The Court treats some earlier opinions as too brief or insufficiently reasoned on that question.
Statutory scheme and chapter structure. The Court sets out the Act's chapter organisation, noting that Chapter IX (Secs. 112–132) contains the penal provisions. It emphasises that Sec. 123 is a penal provision that punishes "contravention" of Sec. 42(1) and that the court must read both provisions together — concluding that Sec. 123 punishes only those who contravene Sec. 42(1), i.e., owners.
Alternative interpretations rejected. The Court rejects the argument that the "real offence" is simply putting a vehicle on the road not in accordance with a permit so that whoever does so must be punishable. The Court says that if the legislature intended to make drivers punishable irrespective of Sec. 42(1)'s owner-focused wording, it would have used appropriate and clear language.
Analogy with other provisions. The opinion points out that in contrast Sec. 22(1) explicitly imposes a prohibition on "every other person driving a motor vehicle" where the legislature intended to reach drivers directly. That contrast supports the conclusion that Sec. 42(1) was intended to address owners only.
Conclusion of reasoning. Because Sec. 42(1) forbids only the owner from certain uses of the vehicle, and Sec. 123 punishes contravention of Sec. 42(1), a non-owner driver cannot be said to contravene Sec. 42(1) and therefore cannot be punished under Sec. 123 as a principal offender. The Court observes that a non-owner driver who persuades the owner to permit forbidden use might be liable for abetment, but no such charge or evidence of abetment was before the Court in this case.

Holding and Implications

Holding:

THE COURT ACCEPTED THE REFERENCE, SET ASIDE THE CONVICTION AND SENTENCE, AND ACQUITTED THE APPLICANT.

The opinion orders that any fine that has been realised shall be refunded to the applicant.

Implications:

Direct effect: The immediate legal consequence for the parties is the quashing of the Magistrate's conviction and sentence against the driver Bansraj and his formal acquittal; refund of any realised fine was ordered.
Scope of the decision: The Court's reasoning rests on a textual interpretation of Sec. 42(1) as imposing obligations only on the owner and of Sec. 123 as penalising contraventions of Sec. 42(1). The opinion rejects broader constructions that would make Sec. 123 a general vehicle for punishing non-owner drivers. The opinion thus limits the application of Sec. 123 to circumstances in which the person charged can be said to have contravened Sec. 42(1) (i.e., ordinarily the owner).
The opinion does not purport to resolve all possible factual permutations (for example, cases of abetment or where an owner personally drives); it states the consequence for the present case and explains the court's textual basis for excluding non-owner drivers from being punished under Sec. 123 on the facts before it.

Note: This summary is based exclusively on the content of the provided opinion and does not add information not contained in that text.

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Bansraj v. State

Upadhya, J.:— This is a reference made by the Sessions Judge, Gorakhpur, recommending that the conviction of the applicant Bansraj under Sec. 123 read with Sec. 42 of the Motor Vihicles Act be set aside. The prosecution case is that Bansraj, a driver, was found carrying 23 passengers in a public carrier while the permit allowed him to carry only 6 passengers in that vehicle. The Magistrate found him guilty and sentenced him to a fine of Rs. 200/-, and in default to undergo rigorous imprisonment for a period of three months under Sec. 42 read with Sec. 123 of the Motor Vehicles Act. It was urged before the Sessions Judge that the applicant being a driver could not be convicted under the said provisions. Sec. 42(1) of the Motor Vehicles Act runs as follows:—

“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 Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used ….”

2. Sec. 123(1) of the Motor Vehicles Act is as below:—

“Whoever drives a motor vehicle 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-sec. (1) of Sec. 42 shall be punishable for a first offence with fine which may extend to five hundred rupees, and for a subsequent offence if committed within three years of the commission of a previous similar offence with a fine which shall not be less than one hundred rupees and may extend to one thousand rupees.”

3. The learned Sessions Judge took the view that Sec. 42 was a provision applicable only to the owner of a transport vehicle and it laid down that he shall not use or permit the use of a vehicle, save in accordance with the conditions of a permit, and Sec. 123(1) provided for the punishment of the contravention of the provisions of sub-sec. (1) of Sec. 42. The learned Judge thought that Sec. 42(1) being applicable only to the owner of a vehicle the contravention thereof could be possible only when he acted against the provisions of that section, and that a driver could not be held to have acted in contravention of Sec. 42(1) which did not concern him at all, and he could not, therefore, be punished under Sec. 123. The learned Judge relied on a decision of this Court in Jagroop v. Rex,1 and made the recommendation as noted above. In Jagroop v. Rex mentioned above my brother Desai, J. expressed the opinion that under Sec. 42(1) of the Motor Vehicles Act ‘it is the owner and no body else, such as the driver or conductor, who is forbidden to use or permit the use of a vehicle, save in accordance with the conditions of the permit, and consequently if a transport vehicle is used against the conditions of the permit, only the owner and no body else can be guilty of contravening this provision.’ He, therefore, quashed the conviction of the accused, who was a driver in that case, under Sec. 123 read with Sec. 42 of the Motor Vehicles Act. He referred to a decision by Pollock J. in Emperor v. Amrutlal Chunnilal Mehta A.I.R 1945 Nagpur 263. for the view taken by him. In that case the managing partner of a motor service and the driver and the conductor of a bus were prosecuted under the Motor Vehicles Act for not issuing tickets to two of the passengers in the bus, although they had paid their fares. Referring to Sec. 42(1) the learned Judge held that the first accused was the owner as well as the manager and fell within the meaning of the word ‘owner’ in that section and held that he was responsible for seeing that the conditions of the permit requiring the issue of the tickets were carried out. Referring to rules 78 and 79 of the rules framed under the Act stating the duties of drivers and conductors, the learned Judge found that the issue of tickets was not one of the duties assigned to them and he held that it would be quite unreasonable to expect the driver to see that all the passengers had tickets and it could not be said, therefore, that the driver had driven the motor vehicle in contravention of the provisions of Sec. 42(1) if he failed to see to the issue of tickets. As to the conductor the learned Judge held that he did not drive the motor vehicle nor did he allow it to be used in contravention of the said provisions. The learned Judge, therefore, upheld the conviction of the managing partner but set aside the conviction of the driver and the conductor of the bus.

4. As against these two cases there are a series of authorities in which the view taken is that a driver who drives a motor vehicle not in accordance with the permit issued, acts in contravention of the provisions of Sec. 42(1), and is liable to be convicted. The first case to which my attention has been invited is a single Judge decision Public Prosecutor v. Jevan.3 The judgment in that case is rather very short. The learned Judge held that the driving of a transport vehicle on the public road without a permit would certainly contravene Sec. 42(1) of the Act and the fact that the permit is to be obtained by the owner would not make any difference. The learned Judge's attention was not invited to the fact that while Sec. 42(1) laid down that the owner shall not use or allow the use of the vehicle save in accordance with a permit it said nothing about persons other than the owner. He did not therefore consider the question as to whether there could be any violation of Sec. 42(1) by a person other than an owner. The next case is a Division Bench case of the Nagpur High Court reported in 1944 Nagpur, page 89. In that case the learned Judges held that while Sec. 42(1) applies only to the owner of transport vehicles Sec. 123 applies to any one who drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Sec. 42(1), and that Sec. 123 is much wider than Sec. 42(1), and the view taken was that the provisions mentioned in Sec. 42(1) are the conditions of the permit granted by the Regional Transport Authority, and if the vehicle is driven by anybody in contravention of the conditions of the permit a liability under Sec. 123(1) is incurred. In this decision also no reason has been given for taking the view that Sec. 123 is wider in its scope than S. 42(1). With great respect, I am unable to agree that Sec. 42(1) lays down the conditions of the permit granted. Sec. 42(1) only makes it necessary for every owner of a vehicle to obtain a permit and not to use it or allow it to be used save in accordance with the permit. The learned judges have not discussed as to how the penalty provided by Sec. 123 could be imposed on a person who is not required to do or abstain from doing anything under Sec. 42(1) specially when Sec. 123 specifically says that the contravention of Sec. 42(1) is essential to constitute the offence. A learned Judge of the Punjab High Court had occasion to consider these provisions in a case reported in A.I.R 1952 Punjab 45 and observed:—

“Prima facie Sec. 42 is designed to punish the owner of a transport vehicle who uses or permits the use of the vehicle in contravention of the conditions of the permit while Sec. 123 is designed to punish the person who drives or causes or allows a motor vehicle to be used in contravention of the conditions of the permit.”

5. The case decided by my brother Desai, J. was placed before him but he thought that the construction placed in that case was such as to defeat the obvious intention of the legislature, and he declined to follow it. Referring to Sec. 123 the learned Judge observed:—

“To my mind this section was clearly intended to be a residuary section and was enacted with the object of punishing a person (other than the owner) who uses a vehicle in contravention of the conditions of the permit issued by the appropriate authority. Another construction would lead to absurd results and render the section wholly meaningless. On a plain reading of Secs. 42 and 123 I entertain no doubt whatsoever that whereas the former section is designed to punish the owner of a transport vehicle the latter is designed to punish the driver or any other person.”

6. Following the view taken in A.I.R 1941 Madras 845 and A.I.R 1944 Nagpur 89, the learned judge held that the driver was rightly convicted. With great respect, it is difficult to appreciate the basis of this decision. Sec. 42 does not contain any provision for punishment at all, and I am unable to see how Sec. 42(1) can be said to be “designed to punish the owner.” Sec. 123 similarly cannot be said to exclude the liability of an owner who causes or allows a motor vehicle to be used or lets out a motor vehicle to be used. The observation, therefore, that Sec. 42(1) is designed to punish the owner and Sec. 123(1) is designed to punish a driver or any other person is difficult to appreciate. Courts have to interpret the statutes primarily according to their plain meaning and I am unable to find any authority for the view that the meaning of the words used has to be strained so as to make it conform to some assumed latent intention of the legislature. In the interpretation of a penal provision the well settled rule is that the subject should be held to be free unless he can be found guilty according to the clear unambiguous language of the statute. In A.I.R 1954 Rajasthan 250, Justice Dave has expressed the following opinion:—

“It is no doubt true that Sec. 42(1) imposes the duty only on the owner of a transport vehicle, but it would appear from the language of Sec. 123(1) that it is much wider in its scope than Sec. 42(1) as it imposes a penalty not only on the owner but also on a person who drives a motor vehicle or causes or allows a motor vehicle to be used or lets out for use in contravention of the provisions of sub-sec. (1) of Sec. 42. To my mind Sec. 123(1) makes the contravention of the provisions of sub-sec. (1) of Sec. 42 punishable not only for the owner of a transport vehicle, but also for any other person who drives it.” The learned Judge held that the words “whoever drives the motor vehicle” are wide enough to cover drivers other than the owners of the vehicle. He followed the rule laid down in the Madras and Nagpur, cases mentioned above and also referred to the decision by my brother Agarwala, J., in Umashankar v. Rex,4

7. In A.I.R 1950 Alld. p. 234, Agarwala J., observed as follows:—

“Sec. 42 prohibits the use of a transport vehicle except in accordance with the conditions of a permit. This means that Sec. 42 is contravened not only when the vehicle is being used contrary to the conditions of the permit but also when there is no permit whatsoever ….. The motor vehicle was, therefore, being used in contravention of the provisions of Sec. 42(1), and the persons responsible for that use were, therefore, guilty under the provisions of Sec. 123 of the Act.”

8. The conviction of the driver under Sec. 123 read with Sec. 42 was maintained. With very great respect, I am unable to agree with the views expressed by Dave, J. and Agarwala, J. When Sec. 123 provides for punishment of those who drive or use or cause or allow the use of a vehicle in contravention of the provisions of Secs. 42(1) it is necessary to see in each case whether the person sought to be punished has acted in contravention of Sec. 42(1). As Sec. 42(1) only forbids an owner to use or allow the use of a vehicle save in accordance with a permit it is difficult to see how any person not an owner can be said to act in contravention of the provisions of Sec. 42(1) which does not concern him at all. Sec. 42(1) does not lay down any general rule relating to use of vehicles. It lays down what an owner must not do and obviously only an owner can be said to act in conformity with or in contravention of the provisions of that section. It appears this aspect of the matter escaped attention when Agarwala, J. observed that “Sec. 42(1) prohibits the use of the vehicle etc.” The section prohibits the owner from using or allowing to be used a vehicle save in accordance with a permit.

9. The present reference came up for hearing before Mukerji, J., but in view of the divergence of opinion mentioned above he considered it proper that the case should be decided by a Bench. Accordingly this case has been listed before us. A learned Judge of the Calcutta High Court in a recent case Chandra Deo Singh v. The State,5 has also taken the view that a driver other than the owner who drives the motor vehicle in contravention of the terms of the permit would be covered by the words of Sec. 123(1). It appears that the two decisions of this Court were not placed before the learned Judge and while he has referred to the case reported in A.I.R 1941 Madras 845 and two other cases, the learned Judge has not given any reasons for the view taken by him.

10. The Motor Vehicles Act is divided into ten chapters. The first chapter is the preliminary one and deals with the definitions of the words used in the Act; the second chapter runs from Secs. 3 to 21 and deals with the licensing of driver and the third chapter runs from Secs. 22 to 41 dealing with the registration of the motor vehicles, Chapter IV (Sees. 42 to 68) deals with the control of the motor vehicles, and it is this Chapter that contains the provisions requiring the owner to use or allow the use of a motor vehicle only in accordance with the permit to be obtained by him.

11. Chapter V deals with the construction, equipment and maintenance of motor vehicles and has only two Secs. 69 and 70. Chapter VI (Sees. 71 to 91) deals with the control of traffic, and chapter VII has only one Sec. 92, which deals with the motor vehicles temporarily leaving or visiting India. Secs. 93 to 111 form chapter VIII which deals with the insurance of motor vehicles against third party risks. Chapter IX is the chapter which deals with offences, penalties and procedure and runs from Secs. 112 to 132. Nowhere else in the Act is there any provision for a punishment. The other provisions of the Act lay down what the statute requires to be done by drivers, owners and other persons, or in respect of vehicles to be govered by the statute. This chapter alone states what the offences are under the Act and provides the necessary procedure and the penalties in respect thereof. The very first Sec. 112 contains a provision which is wide enough to include within its ambit all contraventions of the Act and the rules made thereunder, and reads as follows:—

“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 twenty rupees, or, of having been previously convicted of any offence under this Act he is again convicted of an offence under this Act, with fine which may extend to one hundred rupees.”

12. Thereafter the other sections of this Chapter deal with specific types of offences. Sec. 113 deals with wilful disobedience of directions and obstructions of authority and refusal to supply information when required. Sec. 114 deals with offences relating to licences; Sec. 115 deals with offences relating to excessive speed in driving; Sec. 116 deals with reckless or dangerous driving; Sec. 117 deals with driving under the influence of drink or drugs; and Sec. 118 deals with driving when mentally or physically unfit to drive and the next section punishes abetment of the offences under the three preceding Sections. Sec. 120 punishes racing without the written consent of the Provincial Government; Sec. 121 punishes vising a vehicle in unsafe condition and Sec. 122 punishes an importer or dealer if he sells or delivers a motor vehicle in such condition that the use thereof in a public place would be in contravention of Chapter V of the Act and Sec. 123 punishes the use of a vehicle in contravention of the provisions of Sec. 42(1). The other subsequent provisions of this chapter provide for punishments for driving vehicles with weights exceeding permissible limits or uninsured or without authority etc. and contain provisions for the arrest of persons impounding of documents and summary disposal of cases etc.

13. An analysis of Sec. 123 quoted above would show that (1) whoever drives a motor vehicle in contravention of the provisions of sub-sec. (1) of Sec. 42, shall be punished, (2) whoever causes or allows a motor vehicle to be used or lets out a motor vehicle for use in contravention of the provisions of sub-sec. (1) of Sec. 42, shall also be punished. The second part of this provision clearly makes the owner liable because it is he who may cither cause or allow or let the use of the vehicle in that manner. The first part makes a person driving the motor vehicle liable in the circumstances mentioned. The word “whoever” in the provision has been construed as widening the scope of the section so as to include persons who are not owners. This I feel would be in conflict with the restrictive import of the phrase “in contravention of the provisions of sub-sec. (1) of Sec. 42.” The question is whether a non-owner driving a vehicle does so in contravention of Sec. 42(1). The answer to my mind cannot but be in the negative for the simple reason that Sec. 42(1) does not require the non-owner to do or to abstain from doing anything. It does not concern him at all. When the owner of a vehicle uses or permits the use of the vehicle against the provisions of Sec. 42(1) he alone contravenes the provisions of that section. If the intention of the legislature had been to cast a duty on persons other than owners also, the language of Sec. 42(1) would have been plain enough to indicate that intention. Sec. 123 also makes punishable only those persons who act against the provisions of Sec. 42(1). If the intention had been to make punishable those also who are not owners, the language would have been clear enough to show that persons who contravene the provisions of Sec. 42(1) and all other persons who drive the vehicle in a manner not in accordance with the permit would be punishable.

14. An argument has been advanced by Mr. Jagdish Swamp that the real offence was the putting on the road a vehicle otherwise than in accordance with a permit and whoever commits that offence is punishable. I regret it is not permissible to place such a construction on Sec. 42(1) which embodies a direction to owners only. The owners are forbidden to do certain things and when they violate that direction they alone contravene the law. Sec. 123 therefore makes only these owners punishable.

15. For the above reasons, I agree with the view taken by Desai, J. in Jagrup v. State and accept the reference and set aside the conviction of the accused.

16. Desai, J.:— I agree with my learned brother that the reference should be accepted. Since the correctness of the view expressed by me in Jagrup v. Rex has been challenged in several decisions, I feel compelled to add a few words.

17. The provision of Sec. 42(1) does not present any problem of interpretation and there is no doubt or dispute about its meaning; it imposes a prohibition only against the owner of a transport vehicle, only he is prohibited from doing certain acts. No prohibition is imposed against any other person such as a driver of the vehicle. The words ‘driver’ and ‘owner’ both are defined in the Act and a driver is not an owner within the meaning of the Act (unless of course he owns the vehicle). Since only an owner is prohibited from doing certain acts, the provision can be contravened only by the owner and cannot be contravened by any other person such as a driver. It is obvious that if a particular person, say A, is prohibited from doing a certain act and B does it, B does not contravene the provisions prohibiting the act; when B is not prohibited from doing it, he cannot be said to have contravened the provision by doing it. If on the other hand every person is prohibited from doing an act, that is, if what is prohibited is the doing of an act, no matter by whom it is done, every doer of it is punishable. The prohibition contained in Sec. 42(1) is of the former type and not the latter. The provision is not that no transport vehicle shall be used or permitted to be used save in accordance with the conditions of a permit; it is that the owner shall not use or permit it to be used save in accordance with the conditions of a permit. Therefore if somebody, who is not the owner, uses or drives a vehicle without a permit, he does not do an act forbidden to be done and cannot be said to contravene the provision.

18. A contravention of the provision of Sec. 42(1) is made punishable only by Sec. 123 and the latter section punishes nothing but such a contravention. It follows that only an owner can be punished under Sec. 123 for contravening the provision of Sec. 42(1); since a person, who is not an owner, cannot be said to act in contravention of the provision he cannot be punished under Sec. 123. The section requires both the driving and the contravening of the provision of Sec. 42(1) to be done by the same person. “Drives in contravention” means “drives by or after contravening” and since the two verbs ‘drives’ and ‘contravening’ are in active voice, they must have a common subject, i.e, both acts must be done by the same person, who cannot be other than the owner. In some authorities cited by my learned brother it was observed that the words ‘whoever drives’ in Sec. 123 are wide enough to include a driver who is not the owner. Certainly the words are wide enough to cover him, but when I say that the provision does not apply to a driver who is not the owner, it is not because the words ‘whoever drives’ do not stand in isolation but are qualified by the words “in contravention of the provisions of sub-sec. (1) of Sec. 42”. Every person who drives is not made punishable but only that person who drives in contravention of Sec. 42(1), and the question essentially is whether a person, who is not the owner, drives a motor vehicle save in accordance with the conditions of a permit, drives in contravention of i.e, does an act forbidden by, Sec. 42(1) and the answer clearly is ‘No.’ Had the act of driving save ill accordance with the conditions of a permit been prohibited by Sec. 42(1), the driver would be doing a prohibited act, but the prohibition in Sec. 42(1) is against a certain person's driving save in accordance with the conditions of a permit, and only he can be guilty of doing the prohibited act. In Criminal Reference no. 115 of 1951 Fazal Ahmad v. The State decided on 13-11-52, F, who was not the owner of a motor vehicle, drove it against the conditions of the permit and was convicted under Sec. 123. Our learned brother held that he drove in contravention of the provision of Sec. 42(1) but did not explain how he did so. In the judgment there is no discussion of the question who can contravene the provision of Sec. 42(1) and the case seems to have been decided as if the provision in Sec. 123 were “if the provision of Sec. 42(1) is contravened, whoever drives the motor vehicle is guilty”. It was said in the same case that the provision of Sec. 123 is wider than that of Sec. 42(1). In the case of two enactments differing from each other in degree only it can be said that ane is wider than the other but the difference between the provisions of Secs. 42(1) and 123 is not one of a degree only and therefore there can be no comparison between them. One provision imposes a prohibition and the other punishes its contravention. I may say at the cost of repetition that Sec. 123 punishes the doing of only that act which is prohibited from being done by Sec. 42(1). It does not punish any act prohibited by some other provision. Therefore, it is not correct to say that its scope is wider than that of Sec. 42(1). The words “drives” and “causes or allows…..to be used” are used in Sec. 123, but it does not follow necessarily that it punishes the owner and the driver for the same act. An owner can also drive and the words “whoever drives” are meant to apply to an owner who himself drives in contravention of the provision of Sec. 42(1). What is meant by Sec. 123 is that the owner is guilty when he himself drives the motor vehicle or causes or allows it to be driven by a driver. It is a mistake to think that the section punishes both the owner and the driver of a vehicle; really only one person is to be punished and that is the owner himself. An owner may contravene the provision either by personally driving the motor vehicle or by causing or allowing it to be used by another person save in accordance with the conditions of the permit; Sec. 123 punishes either of the acts done by him and hence the words “drives” and “causes or allows… to be used.”

19. It was contended by Sri Jagdish Swarup that the act made punishable by Sec. 123 is of plying a motor vehicle save in accordance with the conditions of the permit and that it is the objectionable act that is sought to be punished. The contention would have been sound if the words in Sec. 42(1) were “no transport vehicle shall be used or permitted to be used in any public place save in accordance with the conditions of the permit”, but the actual words used in this section are different. The contention would not have been sound even if the words in Sec. 123 were “if a motor vehicle is driven or caused or allowed to be used in contravention of the provision of Sec. 42(1), whoever drives it shall be punishable,” because every time a driver drives a motor vehicle save in accordance with the conditions of a permit neither does he contravene the provisions of Sec. 42(1) nor can the vehicle be said to have been used not in accordance with the conditions of the permit.

20. The language of Sec. 42(1) may be compared with that of Sec. 22(1). The latter provision expressly imposes a prohibition on an owner and also on every other person driving a motor vehicle. There would have been no necessity of the words “no person shall drive any motor vehicle” in the provision if without them a mere driver were liable to be punished in contravention of the provision.

21. The legislature has made an owner of a transport vehicle responsible for seeing that the vehicle is used in accordance with the conditions of a permit. Naturally, since he is the owner, he is the proper person to be made responsible for seeing “this. If he permits his transport vehicle to be used by another person in any public place in contravention of the conditions of the permit or without obtaining a permit, he should be punished for the act; the other person who drives it may not be aware of the fact that there is no permit or that its conditions are not being observed. There is thus good reason for the legislature's punishing only the owner for contravention of the provision of Sec. 42(1).

22. No owner can permit the use of a transport vehicle save in accordance with the conditions of a permit. If an owner permits a driver to use the vehicle in a public place without, or against the conditions of, a permit, he contravenes the provision of Sec. 42(1), but the driver cannot be said to contravene the provision. The vehicle can be said to have been used in contravention of the provision of Sec. 42(1), but the driver would not be punishable under Sec. 123 which requires not only that there is a contravention of Sec. 42(1) but also that it is by the owner himself. So long as it cannot be predicated that the owner contravened Sec. 42(1), he cannot be punished under Sec. 123.

23. I do not think any absurdity or anomaly arises out of the interpretation placed by me on the provisions of Secs. 42(1) and 123. Nor do I see how the interpretation is against the legislature's intention. The legislature's intention is relevant only when the language used by it is ambiguous, capable of two interpretations, and the court is required to adopt that interpretation which is in accordance with the legislature's intention. If the language is simple or plain, capable of only one interpretation, the Court's duty is to adopt that interpretation and it would not be justified in embarking upon any inquiry into the legislature's intention. Moreover even when a court has to ascertain the legislature's intention, it has to do so from the words used by itself; it cannot speculate about the legislature's intention or assume it without any data. There are no words used by the legislature from which it can be inferred that it intended to punish a driver of a motor vehicle that was driven save in accordance with the conditions of a permit. It is not open to a court to assume that the legislature intended to punish such a driver and then to give a forced interpretation upon the words used in Sec. 123 so as to carry out the supposed intention. If a driver takes out a motor vehicle in a public place without a permit and without the consent of the owner, the owner cannot be said to permit him to use the vehicle and would not be guilty under Sec. 123. But merely because the owner cannot be punished, the driver cannot be punished. If the legislature wanted someone to be punished whenever a motor vehicle was taken out without a permit, it should have used appropriate language in Sec. 123. There is nothing in Sec. 123 to suggest that somebody must always be punished whenever a motor vehicle is taken out in a public place without a permit or against its conditions. If a driver persuades the owner to let him use the vehicle save in accordance with the conditions of a permit, he may be guilty of abetment of the offence of Sec. 123, but not as a principal. The applicant is not sought to be punished as an abetter and there is no evidence also to prove that he is an abettor. He is, therefore, not guilty of any offence and must be acquitted.

24. By the Court— We accept the reference set aside the applicant's conviction and sentence and acquit him. If the fine has been realised, it shall be refunded to him.

25. Reference accepted.

Bansraj v. State

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Factual and Procedural Background

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Applicant / Defence Arguments

Prosecution / Lower Courts' Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bansraj v. State

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