Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Emperor vs Bhangda Fakira on 12 July, 1926
Equivalent citations: AIR 1926 Bom 530
Author: Fawcett


Fawcett, J.

1. This is an appeal against the acquittal of the accused by the Honorary Bench Magistrates, Ankleshvar, in respect of an alleged offence under Section 61, Clause (a) of the Bombay District Police Act (IV of 1890). That clause refers to driving a vehicle of any description at any time between half an hour after sunset and half an hour before sunrise without a sufficient light or lights, either without lawful cause, or except when there is sufficient moon light to render such light unnecessary. In the present case the prosecution case was that the accused was driving his cart without a light at 8 p.m. on a road in the local area, to which that clause applies. The accused admitted this and said:

I had gone to Broach with the Patel to bring a buffalo. It was late there. It was not possible form to go to the village without crossing the road. So I went to the ‘Bhagol’ (outskirts) of Piraman and got my name noted down there. I was warned to light a lamp, but I had no lamp with me, so how can I light one? We had gone to Broach in the morning and it was late there, so that the lamps had already been lighted (thereto).

2. The judgment of the Chairman of the Bench quotes the explanation about the accused having gone to Broach and having to cross the road. Then they say:

Again the accused was asked by the Court Why was it that he did not observe the order of the Carriage Constable to ignite light. He says he had no lights nor had he any material to make a light and consequently ho was unable to keep a light. We, therfore, hold this excuse as a ‘lawful excuse’ under Section 61, Clause (a); of the District Police Act.

3. It has been urged before us that the case falls within the words “lawful excuse,” because the accused, who went to Broach, intended to get back before dark, but had to stay at Broach longer than he expected, so that he had a good excuse for not having a light on his cart.

4. This contention, however, in my opinion, roads into the accused’s statement a good deal that is not there. There is no express statement of the accused that he expected to get back to his village before dark; and for all the statement says to the contrary, it may be that he all along had intended not to leave Broach for his village until it was dark or nearly dark. Under Sections 105 and 106 of the Indian Evidence Act, the burden of proving the circumstances, which are alleged to be a “lawful excuse”, rests upon the accused, and under Section 105 the Court has to presume the absence of such circumstances until the requisite evidence is adduced, I cannot say that there is even a necessary implication that the intention was what has been alleged before us. And, in any case, not a title of evidence has been adduced in support of the alleged intention, or even as to the accused’s unexpected detention in Broach. Therefore, in my opinion, the plea of the accused does not amount to the actual excuse which has been set up before us nor is such an excuse proved.

5. Secondly, it seems to me that the magistrates did not acquit the accused on the ground set up before us, but that their acquittal is based on the ground that, as he had no material to make a light, he was unable to keep a light. It is in regard to this that they say. “We, therefore, hold this excuse as a lawful excuse.” They do not say that the “lawful excuse” is that the accused was unexpectedly detained at Broach longer than he intended to stay there.

6. Even, however, if it is assumed that this was the particular excuse which was urged by the accused and accepted by the Magistrates, I still find the greatest difficulty in holding that, in law, it would amount to a “lawful excuse” at all in the circumstances of the present case. In my opinion, the word “lawful” as used with the word ” excuse “, in Clause (a) of Section 61 of the Bombay District Police Act, conveys the idea of an excuse that is (a) reasonable and (b) not opposed to any law or principle of law. As to (a), the fact that a lamp or lantern can be carried on or in a vehicle, so as to be lit when required, is an important factor to be taken into consideration. In England a duty to provide a lamp accordingly is laid down by statute in the Lights on Vehicles Act, 1907 (7 Edw. VII, C. 45, Sections 1 and 2); and even a Taxi Gab Company is criminally liable, if it does not see that lamps are provided : Provincial Motor Cab Co. Limited v. Dunning [1909] 2 K.B. 599.

7. Such a duty is now well-recognized in India, as regards motor cars; but the same principle applies equally to any other kind of vehicle, so that if an owner or driver of a vehicle fails to have a lamp available in cases where he may find such a lamp required by law, he is not “taking all steps reasonably practicable,” to prevent the vehicle being without a lamp. I use the words “taking all steps reasonably practicable,” because they contain a test applied in another English statute regarding the lighting up of the rear plate of a car : see the Motor Car Act, 1903 : 3 Edw. VII, C. 36, Section 2(4). There is, in such a case, it seems to me, an implied duty to have a lamp or lantern available when required; and, therefore, in my opinion, the mere excuse that the accused was unexpectedly kept out till dark is not ordinarily a reasonable one. There might ‘be exceptional circumstances, which would justify its being accepted, but the present case is not one of that kind.

8. Then, coming to the second consideration that the word “lawful” implies that the excuse is one which is not opposed to any law or principle of law, it is obvious that the ready acceptance of such a plea, especially when put in the vague and ambiguous language the accused uses here, and without a title of evidence to support it, would practically render the provisions of Section 61, Clause (a), nugatory. 1 think the words “lawful execute” should receive a construction tending to promote the object of this enactment rather than defeat it. Their is in accordance with the ordinary rule of a beneficial construction in the case of statutes; and it seems to me that generally speaking, an excuse of this kind is not one that “the Act can toler ate,” to use the language of Collins, J., in Dickins v. Gill [1896] 2 Q.B. 310. That was a case where the same words “lawful excuse” were construed.

9. In the present case, I think, the Magistrates were not justified in holding that the accused had established a lawful excuse, under Section 61, Clause (a), of the Bombay District Police Act. Apart from any such excuse, he admittedly committed an offence. Therefore, I would set aside the acquittal, and convict the accused of an offence under that clause. As this has come to us as a test case, I would sentence the accused to a fine of annas eight only.

Shah, J.

10. In this case I have felt some difficulty in arriving at a conclusion. The question in this appeal is, whether, on the statement of the accused, it can be said that he drove a bullock, cart, on the road in question, without a lawful excuse for not having sufficient light with him. The Bench Magistrates who tried the accused, were apparently prepared to accept the statement of the accused so far as it went. And, reading it fairly, it does tend to show this that the accused went to Broach that morning, and that he did not or could not leave Broach in the evening before lamp light time, with the result that when, in order’ to get back to his village Piraman, he had to cross this road, which was within the area to which this Clause (a) of Section 61 of the Bombay District Police Act. applied, he was without sufficient light.

11. The accused was not asked specifically any other questions, and he did not say that he was accidentally and unexpectedly without a light.

12. On taking the explanation at its best it is not sufficient to justify the conclusion that he had any lawful excuse to be without a light. In a similar case, which we disposed of last week, we held that ignorance of law was no excuse within the meaning of the expression “lawful excuse.” In the present case, however, on the facts, the situation is somewhat different. Without attempting to define what a lawful excuse is it seems to me that it is a question, which must be determined on the facts and circumstances of each case. I would be! inclined to take a more lenient view in favour of a villager, who has to go from his village to another, and the best part of the area through which he has to pass is not one to which this clause would apply. At the same time a person, who, while going from one village to another, has to pass through an area to which this section is made applicable, must be required to comply with the rule, unless he has a lawful excuse.

13. In the present case, I accept his explanation to be true, as it has been accepted by the trial Magistrates. I do not think it is sufficient to constitute a lawful excuse within the meaning of this clause. It is difficult to avoid the impression that the trial Magistrates, who were not in sympathy at all with the enforcement of this rule, as disclosed in their judgment in the other case, were possibly much too ready to accept an explanation offered by the accused as sufficient to constitute, a lawful excuse, which, on a fair examination, cannot be said to be sufficient for the purpose.

14. On the whole, therefore, I have come to the conclusion that the accused, in driving on the road his bullock cart, without light at 8 p.m., when there was no sufficient moonlight, under the circumstances stated by him, had no lawful excuse to do so. I therefore, concur in the order proposed by my learned brother.

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