Kerala high court.

KOCHI: Using mobile phone while driving cannot be said to cause danger to public or to affect public safety as there is no legal provision that bars the use of a phone while driving, the Kerala high court has held.

The ruling was given by a division bench comprising justices AM Shaffique and P Somarajan while answering a reference made by a single bench regarding the applicability of section 118(e) of Kerala Police Act, which deals with acts causing danger to public or failure in public safety. The single bench had considered a petition filed by Santhosh MJ against State of Kerala through advocate George Joseph Pulimoottil.

As per prosecution, the petitioner was found talking on mobile phone at 5.45pm on April 26th last year while driving on a public road. The single bench was of the view that using mobile phone while driving will constitute an offence under section 118(e). The matter was referred to a division bench as there were judgments to the contrary by other single benches, including a 2012 judgment (Abdul Latheef vs. State of Kerala) by justice SS Satheesachandran.

In the 2012 judgment, it was held by justice Satheesachandran that section 118(e) cannot be invoked for talking on mobile phone while driving as there is no statutory provision to the effect that such use would amount to a dangerous act to the public. Even if using mobile phone while driving would amount to driving dangerously, it is covered by section 184 (driving dangerously) of Motor Vehicles Act , the court had held.

An offence under section 118(e) is punishable with imprisonment up to three years or with fine up to Rs10,000 or with both. Section 184 is punishable with imprisonment up to six months or with fine up to Rs1,000.

After considering the contradictory judgments by the single bench, the division bench, by referring to a 1963 Supreme Court decision (M Narayanan Nambiar vs. State of Kerala), said a strict interpretation has to be made while analysing a penal provision.

The division bench held, “In the case on hand, unless the ‘act’ of accused causes danger to public or failure in public safety, the penal provision under S.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), the court held while stating that the 2012 decision (Abdul Latheef vs. State of Kerala) lays down the correct law.



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