Police Act, 2011 (Kerala) - S. 118 (e) - Penalty for causing grave violation of public order or danger - Knowingly does any act which causes danger to public or failure in public safety - Whether using a mobile phone while driving a vehicle through a public road will also constitute the offence ? Unless the 'act' of accused causes danger to public or failure in public safety, the penal provision under Section 118(e) will not be attracted.
Held, When we are analysing a penal provision, a strict interpretation has to be made without mincing any words, or else it will lead to absurd results. Unless the 'act' of accused causes danger to public or failure in public safety, the penal provision under Section 118(e) will not be attracted. The "act" which is contemplated by the prosecution is using of a mobile phone while driving a vehicle and thereafter assuming that it may cause danger to public or failure in public safety. In the absence of any statutory provision which prevents use of a mobile phone while driving a motor vehicle, it may not be possible to infer that danger will be caused in the process. In the absence of a statutory provision to hold that use of mobile phone while driving or riding a vehicle would amount to a dangerous act or it affects public safety, it is not possible to invoke Section 118 (e) of the Act.
Facts of the Case
The prosecution case was that the petitioner was found driving a car through a public road in excessive speed and he was talking over the mobile phone. The incident occurred on 26.4.2017 at 17.45 hours. The petitioner contended that using mobile phone while driving will not fall within the mischief of Section 118(e) of the Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. Shaffique & P. Somarajan, JJ.
16-03-2018
Crl.M.C. No. 5969 of 2017
Santhosh M.J. Vs. State of Kerala
For Petitioner : George Joseph Pulimoottil (Adv.)
For Respondent : C.K. Prasad (Public Prosecutor)
O R D E R
A.M. Shaffique, J.
1. This case has been referred to this Court as per reference order dated 4.10.2017. The petitioner had approached this Court challenging the final report by which he was charge sheeted for an offence punishable under Section 118 (e) of Kerala Police Act, 2011 (for short 'the Act').
2. The prosecution case was that the petitioner was found driving a car through a public road in excessive speed and he was talking over the mobile phone. The incident occurred on 26.4.2017 at 17.45 hours. The petitioner contended that using mobile phone while driving will not fall within the mischief of Section 118(e) of the Act. Reliance was also placed on the orders passed in Crl.M.C.Nos. 1060/2012, 1646/2012 and 8422/2016 which were produced as Annexures A3, A4 and A5 respectively.
3. The learned single judge while referring the matter observed that, using a mobile phone while driving a vehicle through a public road will also constitute the offence under Section 118(e) of the Act and therefore the matter was referred for adjudication by a Division Bench.
4. Learned counsel for the petitioner contended that, though driving a vehicle and simultaneously using a mobile phone would amount to a penal provision coming under Section 184 of the Motor Vehicles Act, 1988 (MV Act for short) or even can be termed as rash and negligent driving which may endanger life or cause injury or harm to any other person as contemplated under Section 279 of IPC, it will not attract the penal provision under Section 118 (e) of Act.
5. As already observed, separate orders have been passed in various other cases produced as Annexures A3, A4 and A5. A learned single Judge of this court had evaluated the scope and effect of Section 118 (e) of the Act vis-a-vis Section 184 of the MV Act in Annexure A3 judgment and observed that in the absence of any statutory provision to hold that use of mobile phone while driving a vehicle would amount to a dangerous act to the public, an offence under Section 118 (e) cannot be made out.
6. In Annexure A4 judgment dated 23.1.2014 it was held that driving a motor vehicle carelessly or negligently will not by itself attract the penal liability under Section 118 (e) of the Act. In order to attract the said Section something more has to be done by the accused, or he must have caused danger to public or to public safety. A mere possibility of such a danger is not punishable under Section 118 (e).
7. In judgment dated 6.3.2017 in Crl.M.C.No.8422 of 2016, another learned single Judge of this Court relying upon the order in Crl.M.C.No.2361/2012 (Saji Kumar v. State of Kerala) held that, Section 118 (e) of the Act will not apply in an instance where a person was driving a motor cycle after consuming alcohol. Said Section apply only if there is a grave violation of the public order or endangering life. It was held that when driving or riding a vehicle after consuming alcohol is a penal provision under Section 185(2) of the MV Act, Section 118 (e) of the Act cannot be invoked.
8. We heard the learned counsel for petitioner and learned Additional Director General of prosecution.
9. Section 118(e) of the Act reads as under:-
"118. Penalty for causing grave violation of public order or danger. - Any person who.-
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(e) knowingly does any act which causes danger to public or failure in public safety;"
A bare reading of the provision itself indicates that, the act of a person which causes danger to the public or failure in public safety alone come under the said penal provision.
10. No specific provision had been brought to our notice by which using mobile phone while driving a motor vehicle is considered to be a penal provision. Learned counsel for the petitioner submits that such an act may amount to dangerous driving as contemplated under Section 185 of the MV Act or it may even amount to rash or negligent driving punishable under Section 279 of the IPC. The argument is that unless the prosecution is able to establish that use of mobile phone while driving amounts to act "which causes danger to public or failure in public safety" the provision will not be attracted. In other words, the provision indicates two aspects. One is that the act should cause danger to public or cause failure in public safety and; second is that the said person should have knowledge that it may cause danger to public or cause failure in public safety. Therefore, the provision indicates a positive act on the side of the offender which causes danger to public or failure in public safety.
11. The learned single Judge while referring the matter proceeded on the basis that, using a mobile phone while driving may cause diversion of attention. He might have either partly or fully immersed in the conversion, which will affect his care and attention required as a driver.
12. When we are analysing a penal provision, a strict interpretation has to be made without mincing any words, or else it will lead to absurd results. The position of law is well settled in Dyke v. Elliot, (1872) LR 4 PC 184, wherein Lord Justice James speaking for the Privy Council stated that "No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence, is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip; that there has been a casus omissus; that the thing is so clearly within the mischief that it must have been included if thought of". This has been followed by the Apex Court in M. Narayan Nambiar v. State of Kerala, AIR 1963 SC 1116. In Principles of Statutory Interpretation by Justice G.P.Singh, Ninth Edition, while considering the issues relating to strict construction of penal statutes, the following propositions had been summed up:-
"(1) If the prohibitory words in their known signification cover only some class of persons or some well-defined activity, their import cannot be extended to cover other persons or other activity on considerations of policy or object of the statute.
(2) If the prohibitory words are reasonably capable of having a wider as also a narrower meaning and if there is no indication in the statute or in its policy or object that the words were used in the wider sense, they would be given the narrower meaning. In other words where after full consideration it is found that the prohibitory words are equally open to two constructions, one of which covers the subject and the other does not, the benefit of construction will be given to the subject.
(3) If the prohibitory words in their known signification can reasonably bear a wider meaning which promotes the object or policy of the statute, the words will receive that wider meaning and their import will not be restricted even if when construed literally they bear a narrower meaning.
(4) If the literal reading of the prohibitory words produces an unintelligible or non-sensual or socially harmful result, but the statute read as a whole gives out its meaning clearly, effect will be given to that meaning by curing a mere defect in phraseology and even by rejecting words as surplusage."
13. In the case on hand, unless the 'act' of accused causes danger to public or failure in public safety, the penal provision under Section 118(e) will not be attracted. The "act" which is contemplated by the prosecution is using of a mobile phone while driving a vehicle and thereafter assuming that it may cause danger to public or failure in public safety. In the absence of any statutory provision which prevents use of a mobile phone while driving a motor vehicle, it may not be possible to infer that danger will be caused in the process.
14. As rightly pointed out by the learned single Judge in Crl.M.C No. 1060/2012 (Abdul Latheef v. State of Kerala), in the absence of a statutory provision to hold that use of mobile phone while driving or riding a vehicle would amount to a dangerous act or it affects public safety, it is not possible to invoke Section 118 (e) of the Act.
15. In the light of the aforesaid observation, we are of the view that the judgment in Abdul Latheef (supra) lays down the correct law as far as the applicability of Section 118 (e) of the Act is concerned.
The reference is answered as above.
Registry shall place this matter before learned single Judge for appropriate orders.
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