N.H. Bhatt, J.
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 phrases, 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 than two in number in respect of two wheeler vehicles like motor-cycles 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 arresting all such persons, taking them to the police station, keeping them there till the formal complaint was written for the offence under Section 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 Section 279, I..P.C. The prayer was also there for getting declared Section 279 I..P.C. as violative of the guarantee of Article 21 of the Constitution of India. But this point was not pressed. An injunction consequentially 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 a pillion rider but it was conceded practically in para 10 of the affidavit in reply that offence under Section 279, I.P.C. depended upon the road condition, quantum of traffic passing, manner of driving the vehicle and that Section 279, I.P.C. was resorted to only in such circumstances. In para 8 it was practically admitted that Section 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 in charge of the Police Station. In other words, there was an admission that on such alleged offence 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 more than two persons on a two wheeled vehicle can give rise to an offence under Section 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 or injury to any other person, other than the driver. So, we declare that Section 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 negligent from which it can be legitimately felt that human life is endangered or 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 if by itself they committed an offence under Section 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.
4. More often than not and we say that in almost all cases, if there is any offence committed, by mere fact of there being more than (one?) pillion rider, it would be a non-cognizable offence to be dealt with under Section 42 of the Criminal P.C. This section applies in the case of a person committing a non-cognizable offence in the presence of a police officer. All that the police officer can do is to demand from the person his name and address and this man can be arrested if and only if the officer has reason to believe that the name and/or address furnished by the man are/is false. A reason to believe is a stronger term compared to a suspicion. The police personnel should know that they are public servants and whatever power is wielded by them is conferred on them to enable them to discharge their public duties for common good. We hope that the grievance ventilated by the petitioner for the citizens of Baroda will stand mitigated by the above declaration made by us.
5. Rule is accordingly made absolute with no order as to costs.