PRABHUDAS H THAKKER Vs. P K DATTA

JUDGEMENT

(1.) This is a petition by a public spirited citizen complaining of certain unauthorised acts on the part of the police officers under the charge of the respondent No. 1 the Commissioner of Police for the city of Baroda. The petitioner claims to be a social worker and President of Fatehpura Yuvak Mandal and professes to file this petition as public interest litigation. The grievance of the petitioner though is narrated in rhetoric & harsh phrase (many of which are uncalled for) the substance thereof is that the police constables and other officers in the city of Baroda used to arrest citizens who happened to be more that two in number in respect of two wheeled vehicles like motor-cycles and scooters etc. It was alleged that there was a sort of a crusade of the police department to stop such travelling and this was sought to be achieved by arresthay all such persons taking these of the police station keeping then there till the formal complaint was written for the offence under sec. 279 I.P.C. and then they were released on bail. The petitioner complained that not did this amount only to uncalled for harassment of the citizens but it gave rise to the rampant corruption on the part of the policemen. The prayers in the petition were that the respondent No. 1 be directed not to get arrested any citizens who were on the two wheelers and who were more than two in number under sec. 279 I.P.C. The prayer was also there for Constitution of India but this point was not pressed. guarantee of Art. 21 of the Constitution of India but this point was not pressed. An injunction consequently was sought restraining the respondent No. 1 and his subordinates from arresting citizens in such circumstances.

(2.) The matter was admitted by another Division Bench of this Court. Affidavit-in-reply has been filed not by the Commissioner of Police but by his Reader. It is to be found at pages 10 to 15. The affidavit-in-reply shows that as per police from the design of the two wheeled vehicles only one person could be pillion rider but it was conceded practically in Para 10 of the affidavit in reply that offence under sec. 979 I P.C. depended upon the road conditions quantum of traffic passing manner of driving the vehicle and that sec. 279 I.P.C. was resorted to only in such circumstances. In para 8 it was practically admitted that sec. 279 I.P.C. was a bailable offence. but it being a cognizable one the persons were liable to be presented by the police constable who arrested them before the Police Station Officer of the nearest Police Station for the purpose of filing a complaint and thereafter they were being released on bail by the police officer incharge of the Police Station. In other words there was an admission that on such alleged offences having been found to have been committed people were being carried to the Police Station where they were kept till the complaint was lodged and they were released thereafter only by the Police Station Officer.

(3.) On consideration of the petition and the affidavit-in-reply we find that the police personnel of the city of baroda used to arrest not only the man at the steering of the two wheeled vehicles but also the pillion riders carry them to the nearest Police Station make them wait there at the Police Station till the complaint was filed and then they released them on bail. The first question that we are required to decide in this petition is whether the bare fact of there being under sec. 279 I.P.C. A bare look at the text of that section shows that the section is attracted only if the manner of driving is so rash or negligent as to endanger human life etc. So firstly it is the offence of the driver and not of the pillion rider or riders. Secondly that act of driving must be such that can be branded grossly rash and or negligent to such an extent that a reasonable inference could be drawn about the likely consequence of endangering human life or causing hurt of injury to any other person other than the driver So we declare that sec. 279 I.P.C. will stand attracted if and only if the act of driving on a public way is conducted in a manner not ordinarily rash or negligent but so rash and safety of any other person is involved. We therefore declare that any attempt on the part of the police personnel in the city of Baroda to arrest people on the two wheeled vehicles being more than two in number as it by itself they committed an offence under sec. 279 I.P.C. is ex-facie unjustifiable. We also hold that only the driver will be liable if at all he is and not the pillion rider or riders.