DE K1RETSER J.—De Silva and Fort Police.
1944Present: de Kretser J.RE SILVA, Appellant, and FORT POLICE, Respondent.
1,011—M. C. Colombo, 48,949.
Omnibus—Conviction ofconductorfor overloadingbus—Chargeagainst driver
for aiding and abetting—What abetment of offence means—Motor CarOrdinance, No. 45 of 1938, s. 151.
Where, on the conviction of the conductor of an omnibus for over-loading, the driveris chargedwith aiding andabetting theconductor.
Held, that mereknowledgeon the part of adriver thatthe bus was
overloaded was notsufficient to convict him ofaiding andabetting as it
w<js no part of his dutji to interfere with the conductor and the offence ofabetment requires more than abstention from interfering.
The abettor must actively aid with the intention of aiding the offenderor illegally omit to perform a duty with such intention.
^^PPEAL against a conviction by the Magistrate of Colombo.
NihaJ Gunesehere for the appellant.
H. A. Wijemanne, C.C., for the respondent.
Cur. adv, vult.
November 13, 1944. db Kretser J.—
The appellant was the driver of an omnibus licensed to carry 27passengers. On the day in question i± carried 41. It appears an allowanceis made of 5 passengers in view of prevailing conditions. The conductorof the omnibus has been duly prosecuted- Now, the driver of the omnibusis charged with aiding and abetting the conductor. He has been convictedand appeals.
Under section 111 (2) of the Motor Car Ordinance, No. 45 of 1938, theconductor is made liable in case too many passengers are carried.
Under section 151 anyone abetting any one of the many offencesmentioned in the Ordinance may be charged and convicted.
No previous case has been cited to me and I was told that other casesawait the decision in this appeal.
It seems to me that the Legislature being aware of the fact, that everyomnibus has a driver did not make the driver liable for overloading. Insection 111 (1), however, it makes the driver liable in respect of a motorcab. His business is to drive the omnibus. The conductor is the person■who sees to the passengers and to the goods. He is, as his name indicates,the conductor of the omnibus. Under section 120 it is he who issuestickets to passengers. ' The driver is made liable for improper driving andthe conductor does not come in then. The duties and liabilities of the twoare kept distinct. The driver’s position is much the same as the driverof a train and the difference that he is close up to the passengers shouldnot make any difference in his position. It would be intolerable if thedriver had to perform the duties of a conductor as well. In the presentcase the Magistrate has convicted the driver, not on any special circum-stances, but because the driver must be held to be aware of theoverload ” and failed to get the extra passengers set down.
DE KkETSER J.—De Silva and Fort Police.
1 do not think the conviction is justified. Considering that the omnibuswas so full, there is no reason to hold that the accused had reason tobelieve that an already fully loaded omnibus was loaded to a "particularextent and not to something less- But if he did know, that knowledgeof his could not constitute abetment, both because it was no part of hisduty fe> interfere with the conductor and also because abetment requiressomething more than abstention from interfering. The abettor mustactively aid with the intention of aiding the offender or illegally omit toperform a duty with the intention of aiding the offender. There was nolegal duty cast on him to see that, the omnibus was not overloaded. Theprosecution is seeking to implement the provisions of the Ordinance bybringing in a charge of abetment.<.
There may, of course, be special circumstances when a driver, likeanyone else, may be guilty of abetment, e.gif he instigates the conductor,but no such special circumstances have been proved.
In S. Thangiah, S.I., Police v. Batchi Ap-pu1 Moseley J. dealt with avery similar situation and refused to see abetment even though -in thatcase the driver was out of his seat and might have seen the overloading ofgoods.
In my opinion section 151 indicates the position of the driver in regardto offences other than those specially provided for and then makes himliable only if it is proved that the contravention was due to any act,omission, default or neglect on his part. If that is his position in the caseof such offences his position cannot be worse where special provision ismade making only a particular person liable for the contravention.
In my opinion the conviction is not justified. It will accordingly be setaside and the accused will be acquitted.
* 5 Cl. J. 214.
DE SILVA, Appellant, and FORT POLICE, Respondent