AGO SINGHE, Appellant and DE ALWIS ( P. C. 808), Respondent

053-NLR-NLR-V-46-AGO-SINGHE-Appellant-and-DE-ALWIS-P.-C.-808-Respondent.pdf


154
Ago Singhe and de Altcis.
4946Present: Keuneman, Wijeyewardene and Rose JJ.
AGO SINGHE, Appellant and DE ALWIS (P. C. 808), Respondent.
1290—M. C. llatnapura, 41,604.
Omnibus-Conviction of conductor for overloading omnibus—Charge againstdriver for aiding and abetting—Ingredients necessary for conviction—Motor Car Ordinance, No, 45. of 1938, ss. Ill (2) and 151.
Where, after the conductor of an omnibus had been charged anddealt with for overloading, thedriver waschargedwith aiding and
abetting the conductor in the commission of that otfence.
Held, that the driver, by his act of driving the omnibus, could not besaid to have facilitated the commission of the offence and was, therefore,not guilty ofabetment, in theabsence ofevidenceof instigation or
conspiracy.
Mere knowledge on the part of the driver that the omnibus was over-crowded wouldnot be sufficientto make him liablefor abetting the
offence.
C
ASE referred byHoward C.J. toa Benchof threeJudges, under
section 48 of the Courts Ordinance.
H. V. Perera, K.C. (with him G. P. J. Kurukulasuriya and A nan daPereira), for the accused, appellant.—The accused has been charged and■convicted under sections 111 (2) and 151 of the Motor Car Ordinance
Ago Singht and de Alwic.
155
No. 45 of 1938. Seotion 111 (2) speaks of a state of things over whichthe conductor has full control and for which he alone is liable. Theconductor's position in sub-section (2) of section 111 may be comparedwith the driver’s position in sub-section (1) of that section. In view,however, of the decision in Gough v. Rees 1 it is conceded that undercertain circumstances the driver may be convicted for abetting thaconductor in the commission of the offence of overloading.
The accused, in the present case, cannot be said to have done anythingin the nature of abetment, within the meaning of that term in section 100of the Penal Code. His mere presence or failure to interfere when theoffence was being committed by the conductor does not amount toabetment. The decisions in Attorney-General v. JUmes Singho2 andThangiah v. Batchi Appu3 are not inconsistent with the ruling in DeSilva v. Fort Police *. The conductor’s offence of overloading was alreadycomplete prior to the driver’s act of driving.
T. S. Fernando, C.C., for the Crown.—That the offence described insection 111 (2) of the Motor Car Ordinance can be abetted is' beyonddispute—Attorney-General v. James Singho (supra); De Silva v. FortPolice (supra); Gough v. Rees (supra).
What section 111 (2) penalises is not the existence of a state of things,,but the act of carrying passengers in excess of the maximum numberspecified under section 61. In view of the definition of “ passengerin the interpretation section 176, the offence is committed by theconductor when the number of persons found carried in the bus is inexcess of such maximum number. But the driver is the person whoseact makes it possible for the persons to be carried in the bus.
Under section 112 it is not only the conductor who is empowered toprevent persons entering the bus when it is full; the driver has been givena similar power. A duty not to drive when there is an excess of personsshould be implied in view of this power considered in conjunction withsection 42 which makes it an offence for any person to use a motor carin contravention of any of the conditions in the licence.
[Wueyewajidene J.—Can the driver be said to be using the bus bymerely driving it?] Yes, in view of the decision in Gifford v. Whittaker 5.
[Keuneman J.—The charge in this case makes no reference to-section 42 at all. Is it open to us to convict the accused for a contraven-tion of section 42? ]
Section 42 justifies the argument that there is a duty on the drivernot to drive in contravention of the conditions of the licence.
The form of the licence is provided by sections 31 and 34. Form ISin the Second Schedule is the appropriate licence form. It is contendedthat it is a condition of this bus licence that no more than the maximumnumber of passengers shall be carried.
The driver intentionally facilitates the commission of the offencewhen he drives the bus knowing it to be overcrowded. 3
1 (1929) 142 L. T. ‘424.
* (1940) 41 41 N. L. R. 199.
3 (1940) 5 C. L. J. R. 214.* (1944) 45 N. L. R. 551.
(1942) 1 A. E. R. 604.
156
KE INEMAN 0.—.1 go Siitrjlie and dr. Altrii
Abstention from action when action is called for may constitute anabetment-—Provincial Motor Cab Co. v. Dunning 1; Cook v. Stockioell *;Du Gtob v. Lamboume 3; Ruble v. Faulkner *.
Under section 150 (2) the driver would be guilty of the offence describedin section 111 (2) if the contravention was due to any act. omission,-default or neglect on his part. The offence of carrying persons in excesscould not be completed without the act of the driver.
It is submitted that De Silva v. Fort Police {supra) was wronglydecided and should be reviewed.
Cur. adv. vult.
March 20, 1945. Keuneman J.—
This case was referred to a Bench of three Judges under Section 48of the Courts Ordinance.
The accused was charged in that, being the driver of omnibusNo. Z 3717, he did aid and abet the conductor of the omnibus in the•commission of the offence of “ bus over-loading ” punishable undersection 111 (2) of the Motor Car Ordinance, No. 45 of 1938, in breach ofsection 151 of the said Ordinance, and thereby committed an offencepunishable under section 158 thereof.
The evidence of Assistant Superintendent of Police Dep was that hehalted the omnibus in question at Lellupitiya. It was carrying 42passengers when it was licensed to carry 22. The accused was the driver.The omnibus was overcrowded, and some passengers were hangingon the sides. The conductor was charged and dealt with.
The Magistrate held that the omnibus carried an excess of passengers,and that the driver was fully aware of the fact that the omnibus wasoverloaded. He further held that the driver had aided and abetted theconductor in the offence of " overloading ” and found the driver guilty.The appeal is from that conviction.
The first point argued was that the offence set out in section 111 (2)■could not be abetted. This was not pressed in view of the decisions inGough v. Rees 5 and Attorney-General v. James Singho 6. We agree thatthe driver of an omnibus can be charged with abetting an offence by theconductor under section 121 (2) of the Motor Car Ordinance.
It was further argued that the offence of abetment was not made outin this case. Under section 151 of the Motor Car Ordinance “ Any personwho attempts to commit, or abets the commission of, an offence shall beguilty of that offence '. Under the Interpretation Ordinance, section 2,-the word “ abet " has the same meaning as in the Penal Code section 100.In this case there is no evidence of instigation or conspiracy, and theonly part of section 100 which applies relates to international aid, by an-act or unlawful omission. Explanation 3 has a bearing:“ Whoever,
either prior to or at the time of the commission of an act, does anythingin order to facilitate the commission of that act, and thereby facilitatesthe commission thereof is said to aid the doing of that act ",
1 101 L. T. 231.
* 113 L. T. 426.
»L. R. {1907) 1 K.B. 40.
(1940) 1 A. E. R. 285.5 142 L. T. 424.
41 N. L. R. 199.
KEUNEMAN J.—Ago Singhe and de About.
157
Crown Counsel's argument was as follows: —
Section 111 (2) runs thus “ Where the number of passengers foundat any time in an omnibus on a highway exceeds the maximum numberspecified in the licence for that omnibus, or where goods other than thepersonal luggage of a passenger are found in an omnibus on a highway,the conductor of the omnibus shall be guilty of an offence
Crown Counsel emphasized the definition of the word " passenger ”-contained in section 176 as “ a person carried in a hiring car I mayadd that the term " hiring car ” includes an omnibus. Crown Counselargued that the word “ carried ” meant moved or transported, and thatin section 111 (2) one essential of the offence was that the excess ofpassengers must be found in an omnibus in motion, and that persons whomount into a standing omnibus or who are seated in an omnibus whichis halted are not to be regarded as passengers. He therefore argued thatthe driver, by driving the omnibus which had an excess of passengersto his knowledge, was facilitating the commission of the offence undersection 111 (2).
It is true that the word “ carried ” may mean “ transported ", butI do not think it is the only or the necessary meaning for the purposesof the Motor Car Ordinance. The Ordinance uses the word " passengers ”as applicable to persons who are not necessarily being transported. Forexample, " plying for hire ” means standing or waiting to be hired bypassengers. But more to the point is the word “ stopping place " whichmeans a place set apart as a place at which omnibuses may be halted forthe purpose of taking up or setting down passengers. In my opinionthe word “ carried ’’ may include the meaning “ taken up ", and I thinkthat a person is a passenger from the time he is taken up into the haltedomnibus, throughout the journey including all stops, and until he is setdown from the omnibus. Any other meaning would be artificial and•unreal.
In this view movement to transportation is not a necessary ingredientof the offence set out in section 111 (2), adn the driver of an omnibus isnot by his act of driving the omnibus completing that offence, and so the■driver cannot be said to facilitate the commission of the offence by his.act of driving the omnibus.
At the same time it must, I think, be conceded that in its essence theoffence under section 111 (2) is a continuing offence, and if an excess of
passengers ’’ is found at any point in the journey the conductor is•guilty of an offence under that section. Even so the mere knowledge bnthe part of the driver that the omnibus is overcrowded cannot, in my■opinion, make him liable for abetting the offence, for he has in no wayfacilitated the commission of the offence.
Crown Counsel also referred to section 112 which grants both to the■driver and to the conductor of a hiring car (including therein an omnibus)the power to request any person not to enter, when the hiring car is alreadycarrying the full number of passengers. No person shall enter the hiringcar' in disobedience of the request, and if anyone does enter he is guilty■of an offence under section 150 (1). Crown Counsel argued that thefailure to exercise that power may be regarded as- an abetment.
158Justin Fernando <f Inspector of Police, Slave Island.
The first difficulty in this case is to find the evidence that the driverfailed to exercise the power, but even jf it is established that he did notexercise the power it has to be, remembered that while the power is givento the driver no duty is imposed upon him to exercise that power,' andin many cases it would be unreasonable to impose such a duty upon thedriver. Further no power is given to either the driver or the conductorto request persons, who have entered either in disobedience of the requestnot to enter or when the full complement of passengers has already beentaken in, to leave the omnibus, nor is any duty imposed on them to thateffect. I do not ngree with the argument of Crown Counsel.
As distinct from abetment, it has been suggested that section 150 (2)(b) and proviso (i) may be resorted to. But in this case it cannot be saidthat it has been proved that “ the contravention was due to any act,omission, default or neglect ” on the part of the driver. It was necessaryfor the prosecution to show a causal connection between the act, omission,default or neglect and the contravention, and this has not been establishedin the present case.
At one stage Crown Counsel argued that the driver was guilty of anoffence under section 42 in that he used the omnibus in contraventionof the conditions contained in the licence. I do not think it is open tous tq consider that section in connection with the present case. Herethe driver was charged with an offence in which his responsibility for anoffence committed by the conductor was in question. The offence undersection 42 is an independent offence which has no connection with theoffence of the conductor, and it majfe.-raise many defences which havenot been considered in the present case.
We have been referred to the cases of Thangaiah v. Batchi Appu1and D.e Silva v. Fort Police2 where views similar to those I have adoptedwere expressed.
The appeal is allowed; the conviction is set aside and the accused isacquitted.
Wueyewardene J.—I agree.
Rose J.—I agree.
Appeal allowed.