State of Uttar Pradesh vs Bansraj (And Connected Appeal)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: 115/56 and 83/57

Decision Date: 09/10/1958

Coram: J.L. Kapur, Syed Jaffer Imam

The case titled State of Uttar Pradesh versus Bansraj and the connected appeal was decided on 9 October 1958 by the Supreme Court of India. The judgment was authored by Justice J. L. Kapur, who sat on the bench together with Justice Syed Jaffer Imam. The petitioner in the proceedings was the State of Uttar Pradesh and the respondent was Bansraj, with the appeal also covering related matters. The citation for this decision is reported in 1959 AIR 79 and in the Supreme Court Supplement, volume 1, page 153. The legal provisions that formed the basis of the dispute were sections 42(1) and 123 of the Motor Vehicles Act, 1939 (the fourth amendment). The charge involved driving a motor vehicle in contravention of the conditions laid down in a permit issued under section 42(1), and the question was whether a driver, who was not the owner of the vehicle, could be held liable under section 123.

The headnote of the case explained that the respondents, who were drivers but not owners, had been found operating motor vehicles contrary to the terms of permits granted under section 42(1) of the Motor Vehicles Act. They had been prosecuted, convicted under section 123, and sentenced to pay a fine. The High Court had previously held that section 42(1) imposed a prohibition only on the owner, preventing the owner himself from using the vehicle or allowing its use in breach of the permit conditions. Accordingly, the High Court concluded that if the vehicle was used in violation of the permit, only the owner, and not the driver, could be guilty of the offence under section 123. The Supreme Court, however, held that drivers of motor vehicles were also liable under section 123 for driving in contravention of the permit conditions. The Court observed that section 42(1) not only barred the owner from using the vehicle or permitting its use contrary to the permit but also required that the vehicle itself be used only in the manner authorized by the permit. Section 123, the Court noted, penalises every person who drives a motor vehicle or causes or allows a motor vehicle to be used, or lets out a motor vehicle, in violation of the provisions of section 42(1).

The matter before the Supreme Court was a criminal appellate jurisdiction involving Criminal Appeals Nos. 115/56 and 83/57. Both appeals were taken on special leave from the judgment and order dated 13 September 1955 of the Allahabad High Court in Criminal Reference No. 359 of 1952, which arose out of a reference dated 4 August 1952 made by the Sessions Judge of Gorakhpur under section 438 of the Criminal Procedure Code. Counsel for the appellant, G. C. Mathur and C. P. Lal, appeared in both appeals, while the respondent did not appear. The Court delivered its judgment on 9 October 1958, with Justice Kapur speaking for the bench. The two appeals raised a common question of law, allowing the Court to dispose of them together. In Criminal Appeal No. 115/56, the respondent, Bansraj, was a driver of a public carrier but not the owner. He was found to be carrying twenty‑three passengers instead of the six passengers permitted under permit No. 42‑926/123 issued to the owner. A head constable inspected the vehicle and counted twenty‑three passengers. Bansraj was prosecuted under section 42 read with section 123 of the Motor Vehicles Act.

In this case the Court explained that the Motor Vehicles Act, 1939 (the “Act”), as it stood at the time of the alleged offence, was the governing statute. The respondent Bansraj, who was a driver of a public carrier but not its owner, pleaded not guilty and maintained that the vehicle was carrying only six passengers, the number permitted by the licence. He was tried summarily before a First Class Magistrate at Gorakhpur, who found him guilty under section 123 of the Act and ordered a fine of two hundred rupees, with a default sentence of three months’ rigorous imprisonment. Bansraj appealed the decision to the Sessions Judge at Gorakhpur, arguing that as merely a driver he could not be convicted under section 123. The Sessions Judge accepted this contention, holding that a driver alone could not be liable, and consequently referred the matter to the High Court under section 438 of the Criminal Procedure Code. The reference, numbered Criminal Reference No. 359 of 1952, was initially taken up by Justice Mukherji, who referred it to a Division Bench comprising Justices Desai and Upadhya. The High Court interpreted section 42(1) of the Act to mean that only the owner of a transport vehicle was prohibited from using or permitting the use of the vehicle contrary to the conditions of the permit, and therefore no other person, including the driver, could be convicted under section 123 for violating those conditions. On that basis the High Court accepted the reference, set aside Bansraj’s conviction and sentence, and discharged him. The State, dissatisfied with that outcome, obtained special leave to appeal the High Court’s judgment and order.

The second appeal involved the respondent Vishwanath, who drove a private station‑wagon bearing registration W.B.C. 8744, and the owner of that vehicle, Sunder Singh. Both were prosecuted for transporting thirteen passengers from Moghulsarai to Banaras in a vehicle that did not have a permit for carrying passengers on hire. Of those thirteen persons, eight were paying passengers. The magistrate acquitted the owner, Sunder Singh, on the basis of doubt, but sentenced the driver, Vishwanath, under section 123 of the Act to a fine of five hundred rupees and, in default, six months of simple imprisonment. The higher sentence reflected four prior convictions of the driver under the same Act. Vishwanath appealed to the Sessions Judge at Banaras, who set aside the conviction, holding that a driver could not be convicted under section 123 for contravention of the permit conditions. The State then appealed to the Allahabad High Court, where the same Division Bench of Justices Desai and Upadhya heard the case and dismissed the State’s appeal. The State subsequently obtained special leave to bring the matter before this Court. The question that now arises for determination in both appeals is identical: whether a driver of a motor vehicle may be held liable under section 123 of the Act for a breach of the terms of a permit as contemplated in section 42(1) of the same Act.

In this case, the Court explained that the question of liability depended on how sections 42 and 123 of the Act were to be interpreted. At the time when the respondents were alleged to have committed the offence, section 42(1) of the Act stated: “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….” Section 123 of the Act provided that anyone who drives a motor‑vehicle, causes it to be used, or lets it out for use in contravention of the provisions of sub‑section (1) of section 42 shall be punishable. For a first offence, the penalty could be a fine up to five hundred rupees, and for a subsequent offence committed within three years of a previous similar offence, the fine could not be less than one hundred rupees and could extend to one thousand rupees.

The Act regulates the use of motor vehicles and, for that purpose, its various provisions control both the vehicles themselves and the persons who own or drive them. Chapter II deals with the licensing of motor vehicles, Chapter II‑A with the licensing of conductors, Chapter III with the registration of motor vehicles, and Chapter IV with the control of transport vehicles. Chapter IX sets out offences, penalties and procedural matters. Section 3 in Chapter II carries the marginal note “necessity for driving licences”, while section 22 in Chapter III carries the marginal note “necessity for registration”. The marginal note of section 42 in Chapter IV reads “necessity for permits”. In addition, Chapter VI contains several provisions that control traffic, obliging drivers to observe speed limits, obey duty signals and comply with other safety requirements. The detailed provisions of Chapter IX demonstrate the legislature’s focus on road safety.

Consequently, the Act provides comprehensive control over vehicle owners and drivers, and it contains elaborate rules covering every aspect of motor traffic. The Act also penalises every person who violates its provisions, including the seller of a defective motor vehicle. Section 42 is titled “necessity for permits” and employs prohibitive language, indicating that its mandate is mandatory. The negative wording creates a total prohibition against using a vehicle except as permitted by the conditions of the permit. The phrase “no owner of a transport vehicle shall use or permit the use” in section 42(1) conveys a clear legislative intent that the use of the vehicle is forbidden unless it conforms strictly to the permit’s conditions.

The Court observed that the language of section 42(1) required that the conditions of the permit be indicated and that the clause “authorizing the use of the vehicle in that place in the manner in which the vehicle is being used” referred specifically to the transport vehicle itself, not merely to its owner. Accordingly, the provision did not simply forbid the owner from using the vehicle contrary to the permit; it expressly provided that the permit authorized the vehicle to be used at the specified place and in the specified manner, and that such use had to be in accordance with the conditions of the permit. By this construction, section 42(1) contemplated a prohibition not only against an owner permitting a user to operate the vehicle in breach of the permit, but also against the vehicle itself being used in a way that was not authorized by the permit. The prohibition, therefore, applied to any use of the vehicle that contravened the permit conditions, rather than being limited to the owner’s conduct alone.

Section 123, situated in the chapter on offences and penalties, carried a marginal note indicating that its purpose was to punish every person who drives a motor vehicle contrary to the provisions of sub‑section (1) of section 42. The Court noted that, having held that section 42(1) required the vehicle to be used in accordance with the permit conditions, any person who drives the vehicle in violation of those terms commits an offence under section 42(1). Section 42(1) itself was not a penal provision; the penalty for its breach was supplied by section 123. The legislature deliberately omitted the word “owner” from section 123, thereby extending liability beyond the owner. By stating that “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‑section (1) of section 42” is punishable, the statute covered any person who operates, causes to be operated, permits, or lets out the vehicle in breach of the permit. The use of the term “whoever” demonstrated the Legislature’s intention that no motor vehicle should be driven by anyone in violation of section 42(1), and that any such driver would be liable to the punishment prescribed in section 123.

Reading sections 42 and 123 together, the Court found that the two provisions do not imply that only the owner of a vehicle can be punished under section 123. The expression “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” can logically refer to the owner, meaning that this part of section 123 punishes an owner who breaches the conditions laid down in section 42(1). However, the act of driving the vehicle is a separate issue. The vehicle may be driven by the owner himself or by any other person. Consequently, the words “whoever drives a motor vehicle… in contravention of the provisions of sub‑section (1) of section 42” are understood to include both the owner and a person who is not the owner. What the statute makes punishable is the act of driving a vehicle contrary to the requirements of section 42(1); in other words, no one may operate a vehicle in violation of the permit conditions that apply to that vehicle.

The Court noted that a substantial body of judicial opinion supports the view that a driver who is not the owner and who drives in breach of the permit conditions prescribed by section 42(1) falls within the ambit of section 123. All High Courts except the Allahabad High Court have been consistent in holding that such a non‑owner driver is liable under section 123. This position is reflected in cases such as Public Prosecutor v. Jevan (1), Provincial Government, C. P. & Berar v. Mohan Lal (2), Chandra Deo Singh v. The State (3), Teja Singh v. The State (4), Kalyan Lal v. The State (3), The State v. Ram Chandra (5) and The State v. Motilal (6). All of those authorities have interpreted the phrase “whoever drives” broadly enough to include a non‑owner driver who violates the provisions of section 123. Even an earlier Allahabad decision, Uma Shankar v. Rex (8), wherein Justice Aggarwala expressed the view that a driver contravening permit conditions would fall under section 123, was regarded by the Court as erroneous. Accordingly, the Court allowed the appeals, set aside the orders of acquittal and restored the convictions recorded by the Magistrates against the respondents. The appeals were allowed. (1) A.I.R. 1941 Mad. 845. (2) A.I.R. 1944 Nag 89. (3) (1954) 59 C.W.N. 787. (4) A.I.R. 1952 Punj. 45. (5) A.I.R. 1954 Raj. 250. (6) A.I.R. 1955 Raj. 83. (7) A.I.R. 1957 Raj. 63. (8) A.I.R. 1950 All. 234.