Motorists talking on cellphones cannot be charged under a Kerala Police Act, the state's high court has said and ruled in favour of a man, saying there was no provision in law barring use of the gadget.
"In the absence of any 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 Kerala Police Act," the bench, comprising justices A M Shaffique and P Somarajan said in its recent order.
Section 118(e) of Kerala Police Act, 2011, deals with acts causing danger to public or failure in public safety.
The bench passed the order on a petition by M J Santhosh, challenging the police filing a charge sheet against him for the offence under the Act.
He contended that his action would not fall within the ambit of Section 118(e) of the Act.
The prosecution case was that Santhosh was found driving a car through a public road at high speed and was talking over the mobile phone.
The single judge referred the matter to the bench, as separate orders had been passed in other cases. He had then noted that using a mobile while driving a vehicle through a public road would also constitute the offence under Section 118(e) of the Act.
The bench observed that 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.
"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.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 bench said.
The "act" contemplated by the prosecution is using a mobile phone while driving a vehicle and thereafter assuming it may cause danger to public or failure in public safety, the bench said.
"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 process," the bench said.
Speeding drivers, however, can still be booked under Section 184 of the Motor Vehicles Act, 1988 or under Section 279 of the Indian Penal Code.
The Act penalises those driving dangerously with up to six months imprisonment of fine of up to Rs 1,000 for committing the first offence. For a second or subsequent offence in three years, the person will face two years in prison and up to Rs 2,000 fine.
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