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Sher Khan v. State
Full Bench Opinion — Interpretation of Secs. 42(1) and 123(1), Motor Vehicles Act (IV of 1939)
Factual and Procedural Background
Sher Khan, the driver of a public service (transport) vehicle plying in the Varanasi district, was found carrying more passengers than permitted by the vehicle's permit and certificate of registration. He was prosecuted and convicted under Section 123 read with Section 42 of the Motor Vehicles Act (as it stood on the date of the alleged offence). Sher Khan challenged his conviction before the Sessions Judge, who recommended (by reference under Section 438 Cr.P.C.) that the conviction be altered from one under Section 123 to one under Section 112 of the Act, relying on earlier decisions (notably Jagrup v. State and the Division Bench decision in Bansraj v. State).
The matter was referred to a Full Bench by Mr. Justice Chowdhry because of conflicting views in the Court's earlier decisions. The Full Bench (comprising Mootham, C.J., Dayal, J., and Srivastava, J.) considered whether only the owner of a transport vehicle (and not a driver or any other person) can contravene Section 42(1) and thereby be liable under Section 123(1).
Legal Issues Presented
- Whether only the owner of a transport vehicle, and neither the driver nor any other person, can contravene the provisions of Section 42(1) of the Motor Vehicles Act (IV of 1939).
- Whether only the owner, and neither the driver nor any other person, is liable to punishment for that contravention under Section 123(1) of the Act — equivalently, whether any person other than the owner can commit an offence punishable under Section 123(1).
Arguments of the Parties
Applicant / Accused (Sher Khan) — Principal Contentions
- Section 42(1) imposes a prohibition and responsibility only on the owner of a transport vehicle (it is addressed to "No owner of a transport vehicle shall use or permit the use..." ).
- Because Section 42(1) addresses owners alone, only an owner can be said to "contravene the provisions of sub-sec. (1) of Sec. 42"; non-owners such as drivers, conductors or managers cannot contravene that provision and therefore cannot be convicted under Section 123(1).
- If the owner himself drives or permits use in contravention of the permit conditions he would be liable; but a non-owner driver using the vehicle contrary to permit conditions cannot be held to "contravene" Section 42(1) because the statutory duty is not cast on him.
- Accordingly, Sher Khan's conviction under Section 123(1) should be altered to a conviction under Section 112 (a milder offence) if any offence is to be recorded against him.
State — Principal Contentions
- Section 123(1) is framed in wider terms than Section 42(1); the opening words "whoever drives" indicate legislative intent to include non-owners (drivers) within the scope of punishment under Section 123(1).
- The term "motor vehicle" used in Section 123 is wider than "transport vehicle" used in Section 42(1), indicating a broader scope for Section 123(1).
- The phrase "in contravention of the provisions of sub-sec. (1) of Sec. 42" in Section 123(1) should be read as covering any act which defeats the purpose of Section 42(1) — namely securing obedience to permit conditions — so that any person who breaches permit conditions (owner or non-owner) would be liable under Section 123(1).
- If non-owners who breach permit conditions were excluded from Section 123(1), there would be no similarly severe provision for owners or other persons using non-transport motor vehicles in contravention of permit conditions; this would produce an inexplicable distinction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court (how it was used in this opinion) |
|---|---|---|
| Bansraj v. State, 1955 A.L.J.R. 704 | Interpreted Secs. 42(1) and 123(1) to confine liability under Sec. 123(1) to owners of transport vehicles. | The Full Bench (Srivastava, with concurrence from Mootham C.J.) upheld and reaffirmed the view taken in Bansraj as the correct interpretation of the provisions as they stood on the date of the alleged offence. |
| Cane Brandy Syndicate v. Inland Revenue Commissioners, 1921 2 K.B. 403 | Principle that subsequent legislation on the same subject may be looked at to interpret an earlier ambiguous Act. | Mootham C.J. cited this passage (and its approval in later authorities) to justify consulting later legislation (the 1956 amendment) if the earlier provision were ambiguous. |
| Ormond Investment Co. v. Betts, 1928 A.C. 143 | Approval of the Cane Brandy Syndicate principle regarding use of later legislation to construe earlier ambiguous enactments. | Cited in support of the proposition that subsequent legislation may illuminate ambiguous earlier statutes; referenced by Mootham C.J. |
| Attorney General v. Clarkson, 1900 1 Q.B. 156 | Earlier authority establishing that subsequent legislation may be consulted for construing an ambiguous earlier statute. | Quoted within the passage relied upon by the Court (via Cane Brandy Syndicate) to justify looking at later legislation when construing Sec. 123 if ambiguity existed. |
| Public Prosecutor v. Jevan, A.I.R. 1941 Mad. 895 | Held that a driver could be convicted under Sec. 123(1) if he drove a vehicle in a public place without a permit. | Listed among authorities that support the view that non-owners (drivers) can be guilty under Sec. 123(1); relied on by Dayal J. in the dissenting reasoning and noted in Srivastava J.'s survey of case law. |
| Provincial Government, Central Provinces and Berar v. Mohanlal Keshaolal Vyas, A.I.R. 1944 Nag. 89 | Held Sec. 123 to be wide enough to cover the case of a driver. | Cited by Dayal J. as a supporting authority for the proposition that non-owners can be guilty under Sec. 123(1). |
| Teja Singh v. The State, A.I.R. 1952 Pun. 45 | Case supporting driver liability under Sec. 123(1) (Punjab High Court decision noted). | Cited by Dayal J. among cases supporting that non-owners may be liable under Sec. 123(1); Srivastava J. also mentions it as part of the conflicting judicial authorities. |
| State v. Motilal | Listed as an authority (reported context in opinion) supporting driver liability under Sec. 123(1). | Included by Dayal J. as supporting his conclusion that non-owners can be guilty under Sec. 123(1). |
| Mohammad Jalil v. The State, A.I.R. 1956 All. 400 | Authority considered in the debate; cited as supporting non-owner liability. | Mentioned by Dayal J. as supporting the view that non-owners may be guilty under Sec. 123(1). |
| Chandra Deo Singh v. The State, 59 C.W.N. 787 | Authority cited in support of non-owner liability under Sec. 123(1). | Cited by Dayal J. among cases supporting his interpretation that non-owners can be convicted under Sec. 123(1). |
| Uma Shankar Tewary v. Rex, A.I.R. 1950 All. 239 | Earlier decision (Agarwala, J.) following Madras case and holding Sec. 123(1) wide enough to cover a driver. | Mentioned in the historical survey of conflicting decisions; Srivastava J. records this as one of the early authorities favouring driver liability. |
| Jagrup v. State, A.I.R. 1952 All. 276 | Held (by Desai J.) that only the owner could be convicted under Sec. 123(1). | Central to the conflict; invoked by the Sessions Judge and relied upon in earlier Division Bench decision (Bansraj). Srivastava J. discusses Jagrup at length as taking the owner-only view which the Full Bench ultimately affirms. |
| B.B. Lal v. The State, A.I.R. 1955 All. 618 | Decision in which some Judges preferred a view contrary to Jagrup (context: disagreement in All-India decisions). | Noted by Srivastava J. in his survey of divergent High Court opinions as part of the conflicting authority background. |
| Hari Gopal v. State, 1956 A.L.J. 177 | Decision in which Brij Mohan Lal, J. aligned with the view in Jagrup (owner-only interpretation). | Mentioned by Srivastava J. to show that judicial opinion was not uniform but that there were several authorities supporting the owner-only interpretation. |
| Mohammad Ismail and Kulwant Singh v. State, 1956 A.L.J. 271 | Asthana J. originally took a different stance but later changed view to align with Bansraj. | Srivastava J. notes that Asthana J. changed his view in this matter to fall in line with the interpretation in Bansraj. |
| Emperor v. Amrit Lal, A.I.R. 1943 Nag. 263 | Nagpur High Court initially took the view that a driver was not covered by Sec. 123(1). | Referenced in Srivastava J.'s survey of conflicting High Court authorities; later Nagpur decisions changed course. |
| Kalyan Lal v. State, A.I.R. 1954 Raj. 250 | Rajasthan High Court decision dissenting from the Bansraj view (i.e., supporting driver liability). | Included among authorities that disagreed with Bansraj and supported the wider construction of Sec. 123(1). |
| State v. Bala Sahib Babu Shirke, A.I.R. 1957 Bom. 243 | Bombay High Court decision siding with the view that Sec. 123(1) covers drivers. | Listed by Srivastava J. as one of the High Court decisions that have interpreted Sec. 123(1) broadly to include non-owners. |
Court's Reasoning and Analysis
The Full Bench considered, analyzed and ultimately answered the referred question by closely examining the statutory language, relevant definitions in the Act, the grammatical construction of the provisions, related penal provisions in Chapter IX, the legislative context (including a post‑offence amendment to Section 123), and the landscape of conflicting judicial authorities.
Principal analytical steps (as reflected in the opinion):
-
Textual analysis of the two provisions:
- Section 42(1) is phrased as a non‑punishing provision addressed expressly to owners: "No owner of a transport vehicle shall use or permit the use..." (Srivastava J.).
- Section 123(1), as it stood at the time of the alleged offence, punished "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..."
-
Definitions and scope:
- Dayal J. emphasized that "motor vehicle" is a broader term than "transport vehicle" and that the word "whoever" in Sec. 123(1) would sweep in non‑owners; he reasoned that contravention of Sec. 42(1) can occur whenever a transport vehicle is used not in accordance with permit conditions and that the user (including a driver) can be the contravener.
- Srivastava J. countered that the statutory duty and prohibition in Sec. 42(1) are directed only at owners; accordingly, only an owner can be said properly to "contravene" that provision. He viewed the opening phrase "whoever drives" in Sec. 123(1) as qualified by the follow‑on phrase "in contravention of the provisions of sub-sec. (1) of Sec. 42," i.e., only those who can actually contravene Sec. 42(1) (owners) fall within Sec. 123(1).
-
Syntactic and semantic distinctions:
- Srivastava J. examined whether the phrase "in contravention of the provisions of sub-sec. (1) of Sec. 42" differs in meaning from "contravening the provisions of sub-sec. (1) of Sec. 42." He concluded the distinction was illusory, and that one cannot be said to act in contravention of a provision that imposes no duty upon him; thus non‑owners cannot contravene a provision addressed only to owners.
-
Consideration of the legislative design of Chapter IX:
- Srivastava J. compared various penal provisions (Secs. 112, 115, 122, 123, etc.) and observed different expressions used by the legislature when making persons punishable; he inferred that different language indicates different intended scopes and that Sec. 112 functions as the residuary penal provision for offences not specifically covered by others.
- He further reasoned that legislature may have intended a heavier measure of punishment directed specifically at owners of transport vehicles given their control and responsibilities, leaving other persons (drivers, conductors, owners of non‑transport vehicles) to be dealt with under the milder Sec. 112 where applicable.
-
Treatment of conflicting authority:
- The Bench surveyed divergent High Court decisions and earlier single‑Judge and Division Bench decisions in this Court. Both Dayal J. and Srivastava J. reviewed case law; Dayal J. sided with the line of authorities holding Sec. 123(1) wide enough to include non‑owners, citing several supporting cases. Srivastava J. reviewed the same authorities and concluded that the interpretation in Bansraj (owner‑only) is correct and logical from the plain meaning of the statutory language.
-
Use of subsequent legislation (contextual point):
- Mootham C.J. observed that, if Section 123 were ambiguous, it would be appropriate to consult later legislation (notably the 1956 amendment to Sec. 123) to shed light on the earlier provision, citing established authorities on that interpretive method (Cane Brandy Syndicate and related authorities). He noted that after amendment, Sec. 123 became more clearly limited in scope, but that the Full Bench's decision concerns the provision as it stood on the date of the alleged offence.
Ultimately, after weighing the textual language, definitions, grammatical structure, legislative scheme and antecedent authorities, the Full Bench adopted the owner‑only interpretation of Sections 42(1) and 123(1) as they stood on the date of the alleged offence.
Holding and Implications
Holding: Under Sections 42(1) and 123(1) of the Motor Vehicles Act, as they stood on the date of the alleged offence, it is the owner of a transport vehicle alone — when he acts in contravention of Section 42(1) — who can fall within the scope of Section 123(1) of the Act. Persons who are not owners do not fall within the scope of that section.
Implications and immediate consequences:
- The Full Bench affirmed the owner‑only construction (as in Bansraj v. State). Where a non-owner (for example, a driver) uses a transport vehicle in a manner contrary to permit conditions, such a person cannot, under the law as it stood on the date of the alleged offence, be convicted under Section 123(1); instead, prosecutions against non‑owners for contraventions of permit conditions would fall, where applicable, under Section 112 (a milder penal provision) or other relevant provisions.
- The decision resolves conflicting judicial opinions (both within this Court and among various High Courts) by endorsing the interpretation that the prohibition in Section 42(1) is directed at owners and that the penal provision (Section 123(1), as it then stood) applies to those who can contravene the duties imposed by Section 42(1) — i.e., owners.
- No broader change in legislative text was effected by the Court; the Full Bench applied statutory construction principles and precedent to interpret the existing law as it stood on the date of the alleged offence. (The opinion also notes that the 1956 amendment to Section 123 makes the statutory position clearer going forward, and Mootham C.J. referred to the principle that subsequent legislation may illuminate an earlier ambiguous provision.)
Note: This summary is confined to and based exclusively on the content of the provided Full Bench opinion. Where the opinion itself described conflicting case law or legislative amendments, those descriptions have been reproduced here without inference beyond the text of the opinion.
Mootham, C.J:— I have had the advantage of reading the judgment prepared by Srivastava, J. and I agree, for reasons given by him, that the case of Bansraj v. State 1955 A.L.J.R 704. was rightly decided and that the question referred to this Bench should be answered in the manner which he proposes.
2. The view taken in Bansraj v. State has not been accepted by other High Courts, but I venture to think, with all respect, that in none of the cases in which that decision has been considered has any logical answer been given to the reasoning upon that decision is founded. Sec. 123 of the Motor Vehicles Act (as it stood prior to its amendment by Act No. 100 of 1956) is not a well drafted section and accordingly presents difficulties in construction. I think however that, properly con trued, it can have only the meaning which found favour in Bansraj v. State. If however (as has been suggested) the section is ambiguous—I do not think it is—then in my opinion the Court is entitled to look at the later legislation on the subject to see if light is thrown upon its meaning. The law on this point was thus stated by Lord Sterndale M.R, in Cane Brandy Syndicate v. Inland Revenue Commissioners 1921 2 K.B 403. in a passage cited with approval by Lord Buckmaster in Ormond Investment Co. v. Betts 1928 A.C 143.:
“I think it is clearly established in Attorney General v. Clarkson 1900 1 Q.B 156. that subsequent legislation on the same subject may be looked to in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceeds upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.”
3. Now. S. 123(1) after its amendment by the Motor Vehicles (Amendment) Act, 1956, reads thus:
“(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Sec. 22 or without the permit required by sub-sec. (1) of Sec. 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:
Provided that no court shall, except for reasons to be stated in writing, impose a fine of less than five hundred rupees for any such subsequent offence.”
4. It will be observed that under the amended section the driving of a motor vehicle or the causing or allowing of a motor vehicle to be used in contravention of any condition of the permit relating to that vehicle is now an offence punishable under this section only if the condition relates to the route on which or the area in which or the purpose for which the vehicle may be used. The driver of a motor vehicle which carried more passengers than is allowed by the permit commits no offence under this section; he can be punished only under Sec. 112. This section would therefore appear to be parliamentary affirmation to use the words of Lord Evershed, M.R, in In re Westhy's Settlement5 of the view taken by this Court.
5. Dayal, J.:— Sher Khan, driver of a public service vehicle, was convicted under Sec. 123 read with Sec. 42 of the Motor Vehicles Act, 1939 for carrying passengers in excess of the number permitted by clause (viii) of Rule 79 of the U.P Motor Vehicles Rules 1940. The Sessions Judge Varanasi referred the case to this Court recommending the alteration of Sher Khan's conviction from an offence under Sec. 123 to one under Sec. 112 of the Motor Vehicles Act in view of the decision in the case of Jagrup v. State A.I.R 1952 All. 276. to the effect that only the owner of a transport vehicle could be convicted of the offence under Sec. 123 of the Act as he alone could contravene sub-sec. (1) of Sec. 42 of the Act. This view was confirmed by a Division Bench in the case of Bansraj v. State. It however did not find favour with the other High Courts.
6. This reference came up for decision before Mr. Justice Chowdhry who did not agree with the view expressed in Bansraj's case and, in view of the consensus of opinion in favour of his view, referred the following question to the Full Bench for decision:
“Can only the owner of transport vehicle, and neither the driver of the vehicle nor anybody else, contravene the provisions of Sec. 42(1) of the Indian Motor Vehicles Act (IV of 1939) and is only the owner, and neither the driver nor anybody else, liable to punishment for that contravention under Sec. 123(1) of that Act?.
This question does not really cover the point for decision in the reference. The real question for decision however is whether any person other than the owner of a transport vehicle can commit an offence punishable under Sec. 123(1) of the Act.
7. The relevant portion of sub-sec. (1) of Sec. 42 of the Act is:
“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:—
…………….”
8. Sec. 123(1) of the Act, as it stood at the time of the alleged commission of the offence by the applicant, reads thus:—
“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.”
9. Sec. 123(1) of the Act refers to the driving or the use of a motor vehicle and not only to that of a transport vehicle alone. The expression “motor vehicle” is wider in import than the expression “transport vehicle.” “Motor vehicle” is defined in clause (18) of Sec. 2 of the Act thus:
“‘Motor vehicle’ means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been, attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adopted for use only in a factory or in any other enclosed premises.”
“Transport vehicle” is defined in clause (33) of Sec. 2 of the Act thus:
“‘Transport vehicle’ means a public service vehicle or a goods vehicle.”
“Goods vehicle” is defined in clause (8) of Sec. 2 of the Act thus:
“Goods vehicle” means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adopted when used for the carriage of goods solely or in addition to passengers.”
“Public service vehicle” is defined in clause (25) of Sec. 2 of the Act thus:
“‘Public service vehicle’ means any motor vehicle used or adapted to be used for the carriage of passengers for hire or rewards, and includes a motor car contract carriage, and stage carriage.”
10. Secondly, the persons who can commit an offence under Sec. 133(1) of the Act can be all those persons including the owner of a vehicle who do any of the things mentioned in this sub-section. The word ‘whoever’ would cover every person doing an act mentioned in this sub-section and does not by itself refer only to the owner of a moter vehicle. Both these considerations make Sec. 123(1) of the Act include within its scope persons and vehicles which, would not be covered by Sec. 42(1) of the Act. I do not think that there can be any dispute about this.
11. The driving or the use of a vehicle that is considered to be culpable in Sec. 123(1) is the driving or the use in contravention of the provisions of sub-sec. (1) of Sec. 42 of the Act.
12. The question for determination then resolves itself into the interpretation of the expression “in contravention of the provisions of sub-sec. (1) of Sec. 42.” It appears to me that in the cases of Jagrup and Bansraj this expression has been taken to be synonymous with contravening the provisions of sub-sec. (1) of Sec. 42. I do not consider them to be synonymous.
13. What constitutes the contravention of the provisions of sub-sec. (1) of Sec. 42 is however a different matter from the question as to who contravenes that section. The contravention of the provisions of this section takes place when a transport vehicle is used or permitted to be used in any public place in any manner which is not in accordance with the conditions of the permit granted authorising the use of the vehicle in that place. Such contravention can take place irrespective of the fact whether a transport vehicle is used by the owner or is permitted to be used by the owner or whether the vehicle is actually used by any other person. A person who uses a transport vehicle not in accordance with the conditions of the permit would be using it in contravention of the provisions of Sec. 42(1) of the Act.
14. The provisions of Sec. 42(1) of the Act can be said to be:
(i) that a transport vehicle is to be used in any public place 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; and
(ii) that no owner of such a vehicle shall use or permit its use otherwise.
15. Whenever anything takes place which is against these provisions, that would amount to the contravention of the provisions of the said section. The provisions of the section are contravened when the owner of a transport vehicle acts contrary to what the section requires him to act. They are contravened when any one uses the vehicle in a manner against the conditions of the permit. The contravention, I am of opinion, is of the provision which the doer has to observe and the contravener is always the doer who happens to act against the requirements of the provision.
16. If the owner himself drives the vehicle or causes or allows it to be used or lets it out for use, he will be as much guilty under Sec. 123(1) of the Act as any other person doing any of these acts.
17. The other interpretation sought to be put on Sec. 123(1) restricts its scope to the owner of a transport vehicle alone in spite of the most general language of this section both with respect to the type of vehicle and the persons. If that was the intention of the legislature, that could have been very easily expressed by substituting the expression “whoever contravenes the provisions of sub-sec. (1) of Sec. 42” for the expression “whoever drives a transport vehicle or causes or allows a transport vehicle to be used or lets out a transport vehicle for use in contravention of the provisions of sub-sec. (1) of Sec. 42.”
18. Further, I do not find any similar penal provision for drivers or persons using a motor vehicle other than a transport vehicle in contravention of the conditions of a permit. Of course, their case would lie covered by the provisions of Sec. 112 of the Act which constitute a milder offence. I do not consider that there could have been any particular reason for the legislature to make such a distinction. It used language which could comprise within its scope all types of motor vehicles and all kinds of persons and which language did not restrict itself merely to transport vehicles or to the owners of those vehicles.
19. It is significant to notice that the various sections in Chapter IX of the Act dealing with offences, penalties and procedure are expressed in different forms. Sec. 112 makes a person punishable for his contravening any provision of the Act or of any rule made thereunder if no other penalty is provided for the offence. Sec. 115 makes a person punishable for having something in contravention of Sec. 71 which enjoins that no person shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any public place at a speed exceeding the maximum speed fixed for the vehicle. Sec. 122 makes one punishable for selling or delivering a motor vehicle in such condition that the use thereof in a public place would be in contravention of Chapter V or any rule made thereunder. Chapter V consists of two Secs. 69 and 70. Sec. 69 provides that a motor vehicle shall be so constructed and so maintained as to be under the effective control of the person driving the vehicle, and Sec. 70 enpowers the State Government to make rules regulating the construction, equipment and maintenance of motor vehicles and trailors. Surely the expression “in contravention of Chapter V” would not mean mere contravening the provisions of Chapter V and if that were the meaning it would be only the person making the vehicle or maintaining it who could contravene Chapter V Sec. 122 however in specific terms makes an importer of or a dealer in motor vehicles punishable 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 or any rule made thereunder. Secs. 123, 124 and 125 make persons doing certain things in contravention of the provisions of certain sections punishable. Other sections, namely 113, 114, 116, 117, 118, 120 and 121, make person punishable for something which they do. The legislature must have meant differently by using different expressions in various sections.
20. I am therefore of opinion that a person other than the owner of a transport vehicle can be guilty of the offence under Sec. 123(1) of the Act if he drives a motor vehicle or causes or allows a motor vehicle to be used or lets out a motor vehicle for use in a public place in a manner not in accordance with the conditions of the 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. This view finds support from the cases of Public Prosecutor v. Jevan A.I.R 1941 Mad. 895., Provincial Government, Central Provinces and Berar v. Mohanlal Keshaolal Vyas A.I.R 1944 Nag. 89., Teja Singh v. The State A.I.R 1952 Pun. 45., The State v. Motilal10, Mohammad Jalil v. The State A.I.R 1956 All. 400., Chandra Deo Singh v. The State 59 C.W.N 787. and Uma Shankar Tewary v. Rex A.I.R 1950 All. 239.. I would send this answer to the court concerned for the decision of the revision.
21. Srivastava, J.:— The question which has been referred for decision to this Full Bench is:
“Can only the owner of transport vehicle, and neither the driver of the vehicle nor anybody else, contravene the provisions of Sec. 42(1) of the India Motor Vehicles Act (IV of 1939), and is only the owner, and neither the driver nor anybody else, liable to punishment for that contravention under Sec. 123(1) of that Act?”
22. Sher Khan was the driver of a public service vehicle and used to ply his vehicle in the district of Varanasi. The maximum seating capacity of the vehicle was specified in its certificate of registration and in the permit that had been issued by the authorities for plying it. Sher Khan was found to be carrying more passengers than the vehicle was permitted to carry. He was thereupon presecuted and convicted under Sec. 123 read with Sec. 42 of the Motor Vehicles Act. He questioned his conviction before the Sessions Judge of Varanasi on the ground that Sec. 123 of the Motor Vehicles Act was not applicable to his case and he could not be convicted under that provision. This, contention found favour with the learned Sessions Judge and he made a reference to this Court under Sec. 438 of the Criminal Procedure Code recommending that the conviction of Sher Khan be altered from one under Sec. 123 of the Motor Vehicles Act to one under Sec. 112 of that Act. He rested this recommendation on the decision of this Court in the case of Jagrup v. State which decision has subsequently been confirmed by a Division Bench of this Court in Bansraj v. State. The reference came up for decision before Mr. Justice Chowdhry. He found that the decisions of this court on the question were conflicting and that the case of Bansraj needed reconsideration. He therefore formulated the question mentioned above which the Hon'ble the Chief Justice directed to be laid before this Full Bench.
23. Sec. 123(1) of the Motor Vehicles Act has since been amended, but on the date on which Sher Khan was alleged to have committed the offence it stood like this:—
“Whoever drives a motor vehicle or causes or allows 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.”
24. Before Sher Khan could be convicted under this provision it was to be established that he had
(a) driven a motor vehicle in contravention of the provisions of sub-sec. (1) of Sec. 42, or
(b) allowed a motor vehicle to be used in contravention of sub-sec. (1) of Sec. 42, or
(c) caused a motor vehicle to be used in contravention of the provisions of sub-sec. (1) of Sec. 42, or
(d) let out a motor vehicle in contravention of the provisions of sub-sec. (1) of Sec. 42.
25. In this case it being conceded that at the time of the alleged occurrence Sher Khan was driving the motor vehicle, the only question which was to be decided was whether he was doing it in contravention of the provisions of sub-sec. (1) of Sec. 42.
26. The relevant portion of sub-sec. (1) of Sec. 42 reads thus:
“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:
A careful analysis of this provision will show:
(1) that it is not a punishing section and does not create any offence,
(2) that it does not contain any general prohibition applicable to every one,
(3) that it imposes a responsibility only on owners of transport vehicles and not on any body else, and
(4) that the only prohibition which it imposes on owners of transport vehicles is that they should not
(i) use or permit the use of such vehicles;
(ii) in a public place; and
(iii) in a particular manner except in accordance with the condition of a permit granted or countersigned by the appropriate authorities for use of that vehicle in that place and in that manner.
27. The contention which was raised on behalf of Sher Khan was that as sub-sec. (1) of Sec. 42 imposed a prohibition and laid the responsibility on the owner of a transport vehicle only and that too only in connection with the use of his vehicle in a public place in a particular manner it was the owner alone who could act in contravention of the provisions of the sub-section. No one else could do that. Even the owner could not be held to have contravened the sub-section if he for instance used or permitted the use of his vehicle in a private place or in a manner which was in consonance with the conditions of his permit. If however the owner himself drove the motor vehicle, or caused, or allowed it to be used or let it out for use in a public place in a manner not mentioned by the condition of his permit he would be contravening the provisions of the sub-section and would therefore be liable to be convicted under Sec. 123(1). As sub-s. (1) of Sec. 42 did not apply to a driver or conductor or manager or any person who was not an owner of a motor vehicle, such persons cannot contravene the provisions of the section and cannot therefore, be brought within the ambit of Sec. 123(1) of the Act. On the face of it this contention appears to be logical and unanswerable and appealed to Desai, J. when he was sitting singly in Jagrup v. State and Upadhya, J. when he was sitting along with Desai, J. and was dealing with the case of Bansraj v. State.
28. On behalf of the State it is pointed out that the above interpretation of Sec. 42(1) and Sec. 123(1) of the Motor Vehicles Act was an unduly narrow one and should not be accepted because—
(i) Sec. 123(1) is in terms wider than Sec. 42(1) and the opening words “whoever drives” in the former section shows clearly that the intention of the Legislature was to bring the non-owners of transport vehicles also within the scope of the section. The term “motor vehicle” is wider than the terms “trannsport vehicle” (compare the definition of the term “motor vehicle” in clause (16) of Sec. 2 of the Act with the definition of the term ‘transport vehicle’ as given in clause (33) of the section along with the definition of “goods vehicles” in clause (3) and the term ‘public service vehicle’ in clause (15) of the section.) The fact that the former term is used in Sec. 123 and the latter is used in Sec. 42 also shows that Sec. 123(1) is wider than Sec. 42(1).
(ii) The expression “for contravention of the provisions of sub-sec. (1) of Sec. 42” as used in Sec. 123(1) is not a synonym for “contravening the provisions of sub-sec. (1) of Sec. 42.” The purpose of Sec. 42(1) appears to be to secure that transport vehicles are used in public places in acordance with the terms of permits granted for their use. If anything is done by anybody contrary to that purpose he must be held to contravene the provisions of Sec. 42(1) and whoever he may be, whether an owner or a non-owner, he will be liable to be convicted under Sec. 123(1) of the Act.
(iii) Permits containing conditions are issued in respect of all motor vehicles and not only in respect of transport vehicles. Sec. 42(1) applies only to transport vehicles. If Sec. 123(1) is interpreted to apply to owners of transport vehicles only there appears to be no provision under the Act for punishing with similar severity owners, drivers or other persons using motor vehicles other than the transport vehicles in contravention of the conditions of their permits. Why should the legislature have made a distinction in this respect between the owners of transport vehicles and owners of other motor vehicles.
29. When it is said that the use of the words “whoever drives” in the beginning of Sec. 123(1) makes the scope of the section wider than that of Sec. 42(1) it is overlooked that the words “whoever drives” are not used in relation, but are followed by the expression “in contravention of the provisions of sub-sec. (1) of Sec. 42.” It is therefore not all driving that falls under the scope of Sec. 123. Only that driving can fall under the scope of that section which is in contravention of Sec. 42(1) and as that section imposes a prohibition on the owner alone, the expression “whoever drives in contravention of the provisions of Sec. 42(1)” can cover only that driver who is himself the owner. It cannot include drivers who are not owners because they cannot drive in contravention of Sec. 42(1). An owner can cause or allow his motor vehicle to be used in contravention of the provisions of Sec. 42(1) he can also himself drive the vehicle in contravention of that provision. If he does either of these acts he will be liable to be punished under Sec. 123. By the mere use of the expression “whoever drives,” therefore, it does not follow necessarily that Sec. 123 applies to non-owners drivers also. It is also not possible to give any particular significance to the use of the term “motor vehicle” in Sec. 123(1) and the term “transport vehicle” in Sec. 42(1). There being specific reference in the former provision to the latter provision it must follow that the motor vehicle the use of which is to be punished under Sec. 123(1) can only be the kind of motor vehicle to which Sec. 42 applies. It is not possible on the basis of the mere use of the expression “motor vehicle” in Sec. 123 to hold that owners of all motor vehicles other than transport vehicles can also contravene the provisions of Sec. 42(1) when that sub-section itself does not provide anything of that sort.
30. The assumed distinction between the expression “in contravention of the provisions of sub-sec. (1) of Sec. 42” and contravening the provisions of Sub-sec. (1) of Sec. 42” appears to be a distinction without a difference. It is only the passive voice which is used in the first expression and the active voice in the second. This employment of different voices cannot affect the meaning of the expression in any manner. The dictionary meaning of the word “contravention” includes infringement, opposition, violation, or coming into conflict with. A person can therefore be said to act in contravention of a provision of law only if he does something which he is enjoined by the law not to do or omits to do something which the law requires him to do. If the law does not affect him at all in the sense that it does not impose any duty upon him to do anything and does not prohibit him from taking a particular course of action there can be no question of his infringing that provision of law or acting in contravention of it. Such a person cannot therefore either contravene that provision of law or act in contravention of it. As Sec. 42 imposes a prohibition on the owner of a transport vehicle alone and requires the owner only not to act in a particular manner it is in my opinion only the owner who can contravene the provision or act in contravention of it.
31. The argument is that as Sec. 42 was enacted for the purpose of securing obedience to the conditions of permits any breach of the conditions by whomsoever committed would amount to a contravention of that provision. It is assumed here that Sec. 42(1) is a general provision enacted with the intention of securing obedience to the conditions of permits by every one. Had that been the intention the section would have been framed in a different manner and would have provided something like no transport vehicle shall be used or permitted to be used in any public place save in accordance with the conditions of the permit. That is however not the form in which the Legislature enacted that section. As the section stands therefore it imposes a restriction on the owner alone and the owner only can therefore act in contravention of its provisions.
32. Obedience to the conditions of a permit is apparently of greater importance so far as transport vehicles are concerned as compared to other kinds of motor vehicles. It is also easy to understand that owners of transport vehicles can be in a position to exercise effective control over their use. Ordinarily such vehicles cannot be used in public places except with their express or implied permission or consent. Drivers, conductors, managers in charge of transport vehicles are their subordinates and are expected to act under their directions and for their benefit. In these circumstances it is not surprising if the Legislature was inclined to impose a greater responsibility on owners so far as compliance with the conditions of permits of transport vehicles was concerned. It therefore enacted Sec. 123(1) by providing a larger measure of punishment in the case of owners if they acted in contravention of the terms of their permits. The other persons like drivers and conductors of transport vehicles or owners of motor vehicles other than transport vehicles who do not follow the conditions of the permits of the vehicles were however not allowed to go free. Their cases were to fall under Sec. 112 of the Motor Vehicles Act which provided for a milder punishment. It cannot therefore be said that there is no penal provision for drivers or other persons using motor vehicles in contravention of the conditions of a permit, or that the Legislature has made an unjustified distinction between owners of transport vehicles and other persons.
33. These grounds cannot therefore be said to have much force and in any case appear to be entirely insufficient for establishing that the view taken in the case of Bansraj v. State was unjustified. To me, it appears, if I may say so with respect that the interpretation put on Sec. 42(1) and Sec. 123(1) of the Act in that case was the correct one.
34. Judicial opinion on the point has not been uniform. So far as this Court is concerned, the first case in which the question appears to have arisen is the case of Uma Shanker Ternary v. Rex. where Agarwala, J. following an earlier Madras case of Public Prosecutor v. Jevan took the view that Sec. 123(1) was wide enough to cover the case of a driver. Then came the case of Jagrup v. State in which the contrary opinion was taken by Mr. Justice Desai. The conflict was noticed by Mukerji, J. when the case of Bansraj v. State came up before him, and he referred the case to a Division Bench which upheld the view taken in Jagrup v. State. The decision is reported as Bansraj v. State. Before this case was reported the point arose before Mr. Justice Asthana in Mohammad Jalil v. State and he did not agree with the view taken in Jagrup's case. In Hari Gopal v. State 1956 A.L.J 177. which was decided at about the same time, Brij Mohan Lal, J. took the same view as had been taken in Jagrup's case. The decision of Hari Gopal v. State was reported in 1956 A.L.J 177. But in B.B Lal v. The State A.I.R 1955 All. 618. Kidwai and H.S Chaturvedi, JJ. preferred the contrary view. When the point again arose before Asthana, J. in Mohammad Ismail and Kulwant Singh v. State 1956 A.L.J 271. he changed his view and fell in line with the decision in Bansraj v. State.
35. So far as the other High Courts are concerned, the earliest case in which the point appears to have arisen is that of Public Prosecutor v. Jevan. It was held in that case that a driver could be convicted under Sec. 123(1) if he drove a vehicle in a public place without a permit. A different view was taken by the Nagpur High Court in Emperor v. Amrit Lal A.I.R 1943 Nag. 263.. That Court apparently changed its view in the subsequent decision of Provincial Government, Central Provinces and Berar v. Mohanlal Keshaqlal Vyas holding Sec. 123 to be wide enough to cover the case of a driver. This view found favour with the Punjab High Court in Teja Singh v. State with the Rajasthan High Court in Kalyan Lal v. State A.I.R 1954 Raj. 250. and again in State v. Moti Lal with the Calcutta High Court in Chandra Deo Singh v. State and with the Bombay High Court in State v. Bala Sahib Babu Shirke A.I.R 1957 Bom. 243.. In some of these cases the learned Judges have expressly dissented from the case of Bansraj v. State.
36. A perusal of these contrary decisions will show that in most of them the only ground given for holding that a driver falls within the scope of Sec. 183 is that section is wider in scope than Sec. 42. In the Calcutta case of Chandra Deo Singh it was held that though Sec. 123 was wide enough to cover the case of a driver it did not cover the case of a conductor. In the case of Teja Singh v. State Bhandari, J. disagreed with the view taken in Bansraj's case on the ground that Sec. 123 was intended to be a residuary section and if it was construed to apply to owners alone it would become meaningless and lead to absurd results. As I have tried to show there is no real substance in the contention that Sec. 123 is wider than Sec. 42 and on that basis to interpret it as covering the cases of non-owners. There also appears to be no justification for interpreting Sec. 123 as a residuary section. Really the residuary section in the Motor Vehicles Act is Sec. 112. I am also unable to see how the construing of Sec. 123, as has been done in Bansraj's case, can make the section meaningless or lead to absurd results.
37. After giving my anxious consideration to the matter I think the decision in Bansraj's case is correct and the interpretation put on Secs. 123(1) and 42(1) in Bansraj's case is the right and logical interpretation which follows from the Tjlain meaning of the words used by the Legislature. I would therefore answer the question referred to us by saying that under Secs. 42(1) and 123(1), of the Act as they stood on the date of the alleged offence in the case in hand it is the owner of a transport vehicle alone when he acts in contravention of Sec. 42(1) of the Motor Vehicles Act who can fall within the scope of Sec. 123(1) of the Act. In persons who are not owners fall outside that scope.
38. By The Court—The question referred to the Court is answered as follows:
“Under Secs. 42(1) and 123(1) of the Motor Vehicles Act as they stood on the date of the alleged offence it is the owner of a transport vehicle alone when he acts in contravention of Sec. 42(1) of the Act who can fall within the scope of Sec. 123(1) of the Act. Persons who are not owners do not fall within the scope of that section.”
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