NAIR v. SAUNDIAS

091-NLR-NLR-V-37-NAIR-v.-SAUNDIAS.pdf


Nalt v. Saundias.
439
1936 Present: Abrahams C.J., Dalton S.I*!j., and Akbar J.
NAIR v. SAUNDIAS.
583—P. C. Matale, 13,491.
Motor car—Permitting a private car to be used for hiring—Charge againstthe owner—Owner absent at the time—Elements of charge—Burden ofproof—Ordinance No. 20 of 1927, s. 80 (3) (b)—Evidence Ordinance,s. 105.
Where the owner of a motor car, which was licensed for private useonly, was charged under section 80 (3) (b) with permitting the car to plyfor hire, the owner not being present at the time,—
Held, that the burden was on the prosecution to prove that the ownerdid consent to the commission of the offence or that the offence was dueto an act or omission on his part or that he did not take all reasonableprecautions to prevent the offence.
Section 80 (3) (b) does not cast upon the accused the burden of provingan exception within the meaning of section 105 of the Evidence Ordi-nance.
Sub-Inspector of Police, Chilaw v. Croos1 and Macpherson v. Appu-hamy' overruled.
^ ASE referred to a Bench of three Judges by Koch J. and Soertsz A.J.
The accused-respondent who was the owner of a motor car, whichwas licensed for private use only, was charged with permitting the carto ply for hire in contravention of section 30 (1) and section 80 (3) (b)of the Motor Car Ordinance. The driver of the car, who conveyeda number of passengers for hire, was also charged under section 30 (1)and convicted. The Magistrate acquitted the owner.
The complainant appealed against the acquittal With the sanction
of the Solicitor-General.
» (1933) 35 N. L. R. 189.
2 (1933) 35 N. L. R. 231.
440
Nair v. Saundias.
J. E. M. Obeyesekere, Acting Deputy S.-G. (with him M. F. S. Pulle,C.C.), for the complainant, appellant.—Under section 30 (1) of OrdinanceNo. 20 of 1927, it is an offence to use a motor car for a purpose notauthorized by the motor car licence in force. If a car licensed as aprivate car plies for hire, this is a contravention of section 30 (1). In acharge under section 80 (3) brought against an owner, the prosecutionmust prove—
that something has been done or omitted in connection with a
motor car in contravention of any provisions of the Ordinanceor’ of any regulation or order made under the Ordinance; and
that the accused is the owner of the car.
If the owner is proved to have been present at the time of the com-mission of the offence, he is guilty of an offence. This view is supportedby the decisions in Sub-Inspector of Police, Chilaw v. Croos* and Mac-pherson v. Appuhamy'. These are both cases where a motor vehiclewas found to have defective brakes. In Sub-Inspector of Police v. Raja-lingam‘, Drieberg J. took the same view. That was a case of a privatecar plying for hire;
The only defence open to an owner in these circumstances would beeither to controvert the facts upon which it is asserted that a contraventionof the Ordinance has taken place, or to prove that he was not present.In the case of an absent owner, however, it is open to him to prove thatthe offence was committed without his consent, that it was not due toany act or omission on his part, and that he has'taken all reasonableprecautions to prevent the offence. This provision of section 80 (3) (b) isin the nature of an exception falling within section 10§ of the EvidenceOrdinance. The burden of proving facts bringing himself within theexception is, therefore, on the accused. Counsel referred in this respectto the Full Bench decision in The Mudaliyar, Pitigal Korale North v.Kiri Banda’. Counsel urged, with respect, that the decision of Dalton J.in de Mel v. Balasuriya‘ required reconsideration. If it was intendedto confine section 80 (3) to matters relating to equipment, construction,registration and the like, it was unnecessary to divide the section in theway it has been divided. It must be presumed that section 80 (3) wasintended to provide for something not covered, by section 80 (2). On theother hand, Dalton J. in that case appears to have been influenced bythe fact that the charge could in his opinioq^have been brought unde«rsection 44, which occurs in a chapter which provides that section 80 (3) (b)shall not apply to its provisions. Soertsz, J. in 14 C. L. R. 234 proceededupon the particular facts of that case.
J. L. M. Fernando (with him B. H. Aluwihare), for accused, respondent.—The provisions of the Motor Car Ordinance referred to in section 80,sub-sections (1) and (2) clearly refer to provisions to which a motor carmust conform or comply before they are used, in respect of such mattersas construction and equipment. When considering sub-section (3) ofthe same section, the matters referred to therein must be of the samekind as those in sub-sections (1) and (2). The whole section must be readlt (2833) 85 N. L. R. 189.* (2929) 31 N. L. R. 157.
= (2933) 35 N. L. B. 231* (1009) 12 N. L. R. 304.
s (1934) 36 N. L. R. 218.
ABRAHAMS CJ.—Nair v. Saundias.
441
together and on such a reading, sub-section (3) must refer to mattersof construction and equipment. De Mel v. Balasuriya1 supports thiscontention.
The offence of plying a car for hire without a licence is contemplatedby section 30. If section 80 (3) was also intended to catch up the sameoffence one might expect the same or similar language. But there is noparity of language in the two sections. In fact the words used in thetwo sections are widely different.
This case is the first one in which ah accused has been charged undersection 80 for an offence in connection with the licensing of a car. Inprevious cases, the charge has always been under section 30.(Hooper v.
John ’, Police Inspector v. Siyadoris% Misso v. de Zoysa *.)
Section 105 of the Evidence Ordinance throws the burden of provingthe circumstances bringing the case within the special exceptions of thesection of the law defining the offence on the accused. In this casethe offence of plying a car for hire without a licence has not been sodefined in section 80 (3), so the burden will not be on the accused, assection 105 of the Evidence Ordinance cannot apply to section 80 (3)in the absence of such a definition of/the offence in section 80 (3) .
Further section 80 (3) (a) and (b) is governed by the phrase “ unlessotherwise expressly provided by this Ordinance ”. The Ordinanceexpressly provides for the offence of plying a car for hire without a licenceby section 30. So section 80, sub-section (3) (a) and (b) will not apply.
Counsel for appellant has argued that this case comes under the scopeof section 80 (3) and the onus is on the accused. Even if this were so,section 80 being a penal statute the accused is entitled to the benefitof any doubt in the statute or in its interpretation, and further no wideconstruction of the statute can be permitted to his prejudice.*
Halsbury Vol. 27, p. 277, states that the Court should interpreta penal statute benevolently and the construction of the statute is notto be extended by. equity or enlarged by parity of reasoning, and theperson against whom it is sought to be enforced is entitled to the benefitof a doubt if any.
Maxwell, on the Interpretation of Statutes (1905 ed.) p. 395, statesthat it is the duty of the judicial interpreter to put upon the languageof the legislature its plain and rational meaning. And at page 396,4fcNo violence must be done to its language in order to bring peoplewithin it, but rather care must be taken that no one is brought withinit who is not within its express language..
In the face of these authorities, the construction put upon .section 80by the counsel for the appellant is far too wide and in view of the doubtas to the exact meaning of the section, the appeal cannot succeed.
August 3, 1936. Abrahams C.J.—
The respondent, the owner of a motor car, was charged on the com-plaint of a Police Sergeant with permitting the car to ply for hire incontravention of section 30 (1) and section 80 (3) (b) of Ordinance No. 20of 1927. The driver of the car was himself charged with plying for hire in
36 fit. L. R. 218.3 30 N. L. R. 410.
2 C. L. Br. 410.* 7* L. Rce. .210.
442
ABRAHAMS C.J.—Nair v. Saundias.
contravention of section 30 (1) of the same Ordinance. Apparently, thecar was licensed for private use only and the driver conveyed a number ofpassengers for gain.
'Hie Magistrate convicted the driver and acquitted the owner. Thecomplainant then obtained sanction from the Solicitor-General to appealagainst this acquittal. The appeal was first heard by Soertsz A.J, whoheld that he was faced with conflicting Supreme Court decisions andreferred the matter for the decision of a Bench of two Judges. The casewas then argued before Koch J. and Soertsz A.J. who were unable toagree. Hence this hearing before this Court.
Section 80 upon the construction of which this case hinges reads asfollows: —
"80.(1) If any motor car is used which does not comply with or
contravenes any provision of this Ordinance or of any regulation, or ofany order lawfully made under this Ordinance or any regulation; or
If any motor car is used in such a state or condition or in such amanner as to contravene any such provision; or
If anything is done or omitted in connection with a motor car incontravention of any such provision; then, unless otherwise expresslyprovided by this Ordinance,—
The driver of the motor car at the time of the offence shall be
guilty of an offence unless the offence was not due to any act.omission, neglect, or default on his part; and
The owner of the motor car shall also be guilty of an offence, if
present at the time of the offence, or, if absent, unless the-offence was committed without his consent and was not dueto any act or' omission on his part, and he had ‘taken allreasonable precautions to prevent the offence ”.
As I have said, there have been conflicting decisions as to the liability ofan owner under that section where the driver has been proved to havecommitted an offence thereunder. In the case of Sub-Inspector of Police,Chilaw v. Croos “, the owner of a car was convicted because the car wasdriven when it was not in a fit condition to be driven. The owner was notpresent when it was so driven, but Macdonell C.J. held that the prosecutionhad discharged the onus placed upon it by proving that something hadbeen done or omitted in contravention of the Ordinance, and it was thenfor the owner to satisfy the Court that what had been done or omitted was-without his consent, &c. In Macpherson v. Appuhamy heard the daybefore the above-mentioned case, the learned Chief Justice again upheldthe conviction of an owner. This appeal seems to have been contestedpurely on the evidence, and the learned Chief Justice appears to haveaccepted without any question that there was an onus on the accused toshow that he had done everything which was required of him to preventan offence against • the Ordinance. On the other hand, in de Mel v.Balasuriya *, Dalton J. took the view that the owner was not liable unlesshe abetted the commission of the offence. He said : “ The provisions ofthe Ordinance referred to in sub-sections (1) and (2) are, it seems to me,provisions to which motor cars must comply or conform before they are» 35 N. L. R. 189.’ 35 N. L. R. 931.
a 36 N. h. R. 218.
ABRAHAMS CJ.—Nair v. Saundias.
443
used, in respect of such matters as equipment, construction, registration,licensing, or conditions. One can understand the owner being maderesponsible, for instance, for the proper equipment and safe condition ofthe car he allows his driver to use. Sub-section (3) refers to acontravention of those same provisions. It would appear to provide foranything that may be omitted from sub-sections (1) and (2), for all threesub-sections must be read together. ” The learned Judge went on todecide that as the owner was prosecuted although it was his driver thatcontravened what was described in the Ordinance as a driving rule, theprosecution must fail on this construction of sub-section (3). In the caseof Sub-Inspector of Police v. William Singho this ruling was followedby Soertsz A.J. It will be observed that Dalton J. gave no opinionas to whether the prosecution had done all that the law required byproving that sub-section (3) of section 80 had been contravened, and ^hatit was then for the accused to show that he was excused under paragraph(b) of that, section or whether the onus was upon the prosecution to provethat the accused was not so excused.
While guarding myself against any inference that I agree withDalton J’s ruling in de Mel v. Balasuriya (supra), it is not necessaryf6r me to come to any decision on that side of the case, for I am of theopinion that on a proper construction of paragraph (b) of section 80 therespondent was not proved to have committed any offence.
The Deputy Solicitor-General who appeared in support of this appealargued that section 105 of the Evidence Ordinance placed upon therespondent the onus of proving that he had done everything to preventthe offence within the requirements of paragraph (b). Section 105 of theEvidence Ordinance is an exact reproduction of section 105 of the IndianEvidence Act which reads as follows : —
“ 105. When a person is accused of any offence, the burden ofproving the existence of circumstances bringing the case within any ofthe General Exceptions in the Indian Penal Code; or within any specialexception or proviso contained in any other part of the same Code, orin any law defining the offence, is upon him, and the Court shallpresume the absence of such circumstances. ”
Now in order to see whether the circumstances of excuse in paragraph (b)of section 80 constitute a special exception to an offence, it seems to menecessary that that offence should be defined. I think that one can cometo a speedy conclusion as to what the offence is under paragraph (b) byascertaining what the accused can be properly charged with under thatenactment. Let us. suppose the accused was present at the time some-thing was done in connection with his car in contravention of theOrdinance; it seems to me that the charge against him should runsomething like this: —.,
“That you being the owner of a motor car in respect of which anoffence was committed under section — of Ordinance No- 20 of 1927,were present at the time of the said offence. ”
What the prosecution would have to prove then would .be, that the accusedwas tb®of a car. that an offence in contravention of a certain
• 14 C. L. Rec. 234.
444
DALTON S.P.J.—Nair V. Saundias.
section was committed in respect of the car and that he was present when,that offence was committed. The accused could only exonerate himselfby showing that one at least of these three allegations had not beensatisfactorily proved. But where the accused was an absentee the chargecannot run in that way, nor could he be charged with being absent at thetime when the offence was committed in respect of the car as that is nooffence. There is clearly a differentiation between the responsibility ofan owner who is present when an offence is committed in respect of thecar and an owner who is absent. That difference can be gathered fromthe wording of paragraph (b) to be in the existence of certain circumstanceswhich the prosecution must prove before the accused can be called uponfor his defence. The charge then should run something like this : —
“ That you being the owner of a motor car in respect of which anoffence was committed under section — of the Ordinance, being absentat the time when the said offence was committed, did consent to thecommission of the offence or (as the case may be), that the said offencewas due to such and such an act or omission on your part, or (as thecase may be) that you did not take all reasonable precautions toprevent the said offence ”.
It also seems to me that the prosecution in this case unconsciouslyconceded this construction of paragraph (b) when the accused was chargedwith having permitted the car to ply for hire, for under paragraph (b) thecorrect method of proving how the accused permitted the car to ply forhire would be to show that none of the excusatory circumstances specifiedin paragraph (b) existed.
I think the fallacy underlying this prosecution is due to a misapplicationof section 105 of the Evidence Act to paragraph (b) of section 80 ofOrdinance No. 20 of 1927. What are really the essential elements of an -offence have been mistaken for an exception to the offence.
No doubt this construction of paragraph (b) imposes a very heavyburden on the prosecution. That is not to the point. It may be thatthe legislature actually intended that the owner of a car should provethat he was excused from responsibility for another person’s act oromission in respect of the car, but it does not appear to me that, if thiswas the intention, it can be gathered from the wording of paragraph (b).In my opinion this appeal fails and should be dismissed.
Dalton S.P.J.—
This appeal by the complainant in the Police Court against an acquittal,which originally came before one Judge, was referred to a Bench of twoJudges on the ground that there are conflicting decisions as to theliability of the owner of a car who is charged with permitting an offencewhich his driver has committed, and of which he has been convicted.When the appeal came up for hearing before two Judges they were notable to agree, and the appeal now comes before us.
The first accused, the owner of a private car, was charged with“ permitting the said car to ply for hire,” in breach of section 30 (1) andsection 80 (3) (b) of the Motor Car Ordinance, No. 20 of 1927. The driverwas convicted of the offence, but the first accused, the owner, was
DALTON S.P.J.—Nair v. Saundias.
445
acquitted on the ground that the prosecution had not led any evidenceto connect him with the driver’s offence. The Magistrate purportedto follow a decision given by me in the case de Mel v. Balasuriya
In support of the appeal the Deputy Solicitor-General relies upon twodecisions of Sir Philip Macdonell C.J., namely, Sub-Inspector of Police,Chilaw v. Croos * and Macpherson v. Appuhamy4, which are to the effectthat, when in a charge under section 80 (3) of the Motor Car Ordinance it isestablished by the prosecution that something was done or omitted bythe driver in connection with a'car in contravention of any provision of theOrdinance, the onus is on the owner, if he was absent at the time of thecontravention of the Ordinance, to satisfy the Court that the offence wascommitted without his consent and was not due to any act or omissionon his part, and that he had taken all reasonable precautions to preventthe offence.
Mr. Obeyesekere has urged that de Mel v. Balasuriya (ubi supra) waswrongly decided in so far as it holds that the owner could avoid or escapethe effect of the provisions of section 80 (3) (b), in respect of any limitedclass of offences under the Ordinance. It seems to me that on the factsde Mel v. Balasuriya (ubi supra) can possibly be distinguished from thecase now in appeal before us. I had to decide in the former case Whetheror not the owner was liable under section 80 (3) (b) for a contravention byhis driver of what is described in the Ordinance as a driving rule, andnothing that I have heard in the argument before us has led me to doubtthe correctness of my decision there. I concede that the legislature hasgiven the Courts a difficult puzzle to solve when we are asked to say whatthey really intended by the words they use, but I feel quite unable to givesection 80 the wide construction for which the Deputy Solicitor-Generalcontends. I am still of opinion that the section must be read as a whole,and that the somewhat general words of sub-section (3) must be read ascomprehending only offences of the same kind as those in the twoprevious sub-sections. It is true the two earlier decisions of Sir PhilipMacdonell relied upon by Mr. Obeyesekere were not brought to my noticewhen the case of de Mel v. Balasuriya (ubi supra) was argued. It is not,however, in the circumstances, necessary, in my opinion, in this appeal toconsider whether or not de Mel v. Balasuriya (ubi supra) was rightlydecided, for if one holds that the conclusions in Sub-Inspector of Police,Chilaw v. Croos (supra) and Macpherson v. Appuhamy (supra) were notcorrect, the appeal must necessarily fail. After careful consideration ofthe arguments before us, I must respectfully differ from the conclusionsthere arrived at as to the meaning and effect of the provisions of section80 (3) (b) of the Ordinance.
It is hardly necessary to stress that most highly valued and jealouslyguarded principle of English law, contained, for us- in Ceylon, in thesomewhat brief, cold and formal words of section 101 of the EvidenceOrdinance. An illustration is added to the section. If A wishes a Courtto give judgment that B shall be punished for an offence which A says Bhas committed, A must prove that B has committed the offend®Section 105 of the Evidence Ordinance, upon which Mr QJaeyesekerei 36 -V. L. R. 318.3 So L, R. 189.
» 3o N. L. R. 231,
446
DALTON &PJ.—Nair v. Saundias.
relies, contains no real exception to that general rule, since all the dementswhich go to make up the offence charged have still to be proved by theprosecution against the person charged, before the latter need make anymove to bring himself within any exception relied upon. Even then theonus upon an accused person is not so heavy as that upon the prosecution.There are, however, various Ordinances, which make exceptions to thegeneral rule above mentioned. A useful list of these up to 1920 will befound in Mr. R. F. Dias’s Commentary on the Evidence Ordinance atpages 136 and 137. To take the Penal Code, 1883, it will be found thatsections 392a (b), 449 and 467, in clear and express terms, provide thatthe burden of proof in respect of certain matters, which under the generalrule lies upon the prosecution, shall lie upon the accused person. OtherOrdinances in the list, which I have examined, contain similar andprecise terms as to burden of proof.
In respect of statutes which encroach on the rights of subjects, it is arecognized rule of construction that they should be interpreted, if possible,so as to protect those rights (Maxwell’s Interpretation of Statutes, 7th ed.,p. 245). The learned author points out that the paramount duty ofthe judicial interpreter is to put upon the language of the legislature itsplain and rational meaning and to promote its object. It is to beexpected, however, that if the intention is to encroach upon the rights ofpersons or to impose burdens upon them contrary to other expressprovisions of the law, it will manifest its intention plainly, if not inexpress terms, at least by clear implication.
Further, mens rea, or a guilty mind, is with some exceptions an essentialelement in constituting a breach of the criminal law. Maxwell’sInterpretation of Statutes, p. 88—“ The general rule is that unless thecontrary is expressed mens rea enters into every offence ”. There is ofcourse a large volume of municipal law to which, by enactment, thisrule does not apply, but whether it applies or not depends upon theconstruction of the particular statute concerned.
The question to be answered here is whether there is anything containedin section 80 (3) (b) of the Motor Car Ordinance contrary to the generalrule set out above and throwing the burden of proof upon an owner of acar, whose driver, in his absence, has committed an offence against theOrdinance, of showing that he, the owner, is not guilty, after the prose-cution have merely established that the driver has committed the offenceand that the other person charged is the owner. Sub-section (b) is asfollows : —
. “ (b) The owner of the motor car shall also be guilty of an offence, ifpresent at the time of the offence, or if absent, unless the offence wascommitted without his consent, and was not due to any act or omissionon his part and he had taken all reasonable precautions to prevent theoffence ”.
It will be noted that there are no words here referring to the burden ofproof, as there are in other statutory enactments changing the generalrule to which I have referred. There is no express reference to theburden of proof at all. Further, I can find no words used whence I cansay that it is manifest by clear implication that the legislature intended toeffect any change in the general law governing the burden of proof. It
DALTON S.P.J.—R. M. A. R. A. R. R. M. v. Commissioner of Income Tax. 447
has been argued that the prosecution might have difficulty in leadingevidence against th6 owner as to what he had or * had not done inpreventing the offence, but that kind of argument does not help one. Ihave already pointed out elsewhere that this is not the only section of theOrdinance which is difficult of interpretation. It is suggested that anowner, if present at the time Ms driver commits an offence, is equallyguilty with the driver, without any exception whatsoever, and even if thedriver is acting directly contrary to the instructions of the owner and thelatter is striving to do all he can to prevent the offence being committed.Fortunately, it is not necessary here to decide whether that is so or not.I find it impossible, however, to hold, from the words that are used insection 80 (3) (b), that the legislature intended'to effect any change in thissub-section in the existing law. The words used are not, in my opinion,inconsistent with the general rule. If the legislature intended to put theburden of proof here upon the owner, as urged for the appellant, thatintention must be plainly expressed or clearly implied. I cannot find■that that intention has been expressed in this sub-section in either way.If the conclusion is that the prosecution still has to prove that the accusedperson here has committed the offence with which he has been charged, itmay be asked what is the purport of enacting section 80 (3) (b) at all.It is not for me to supply an answer to that question, but I might suggestas an answer that possibly the legislature was seeking to provide a way inwhich the defence might meet a charge.
In the result the appeal, in my opinion, must fail.
Akbar J.—I agree with my Lord the Chief Justice.
Appeal dismissed.