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Bharatkumar Arvindkumar Dave Vs. Commissioner of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR1411
AppellantBharatkumar Arvindkumar Dave
RespondentCommissioner of Police and anr.
Excerpt:
.....at once. -the state government or any authority authorised in this behalf by the state government, if satisfied 'that it is necessary in the interests of public safety or convenience, or because of the nature of any road or bridge, may by notification in the official gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicle or of any specified class of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 75 at suitable places: power given to the commissioner is only for 'regulating traffic of all kinds' in the public interest..........rider to ride on the two-wheeled vehicles comes into conflict with sections 74 and 85 of the motor vehicles act, 1939. section 74 reads as follows.74. power to restrict the use of vehicles. - the state government or any authority authorised in this behalf by the state government, if satisfied 'that it is necessary in the interests of public safety or convenience, or because of the nature of any road or bridge, may by notification in the official gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicle or of any specified class of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause.....
Judgment:

P.R. Gokulakrishnan, C.J.

1. These two Letters Patent Appeals arise out of ft common judgment passed by Justice Ravani. The petitions have been filed by the appellants for quashing and setting aside the order dated 10-6-85 passed by the Commissioner of Police, Ahmedabad. By that order, the Commissioner of Police has prohibited the public from driving two-wheeled vehicles, viz., mopeds, scooters, motor cycles, etc. with a pillion rider for a limited period of 15 days. Now we are told that this has been extended for a further period ending with 31st July 1985. This extension was subject to certain exception wherein the first respondent has given permission to the children, women and old people to use the vehicle as a pillion rider. This order was purported to be passed under Section 33(1)(b) of the Bombay Police Act, 1951. The first respondent in his affidavit to the main petition has stated that such type of order was passed due to the fact that there are disturbances and miscreants have utilized' two-wheeled vehicles like scooters, motor cycles or even cycles for the purpose of assaults either by knife or by a sharp-edged instrument or for the purpose of throwing acid or burning rags on innocent pedestrians walking or passing on public road or places. That was elaborated in paragraph 10 of the said affidavit.

2. These Special Civil Applications were filed by the appellants who wanted to treat this as 'public interest litigation'. The learned Single Judge of our High Court has given his opinion with regard to the public interest litigation' and on the legal side he has held that the Commissioner has ample power to pass such orders under Section 33 of the Bombay Police Act. Finally, the learned Judge has dismissed both the Special Civil Applications against which the present Letters Patent Appeals have been filed.

3. We are not endorsing or passing any opinion with regard to the observation made by the learned Single Judge of our High Court on the 'public interest litigation'.

4. Coming to the legal aspect of the case, it is submitted by the Learned Counsel appearing for the appellants that the order passed by the first respondent herein will not come under the purview of Section 33 of the Bombay Police Act. Section 33 of the Bombay Police Act gives power to make rules or regulations for traffic for preservation of order in public place, etc. Section 33(1)(b) reads as follows:

33(1) The Commissioner, with respect to all or any of the following matters specified in this sub-section...make, alter or rescind rules or orders not inconsistent with this Act....

(a) ...

(b) regulating traffic of all kinds in streets and public places, and the use of streets and public places by persons riding, driving, cycling, walking or leading or accompanying cattle, so as to prevent danger, obstruction or inconvenience to the public.

The Learned Counsel appearing for the appellants submits that this will not include prohibiting the pillion rider on the two-wheeled vehicles to ride. We are afraid we are not able to appreciate this argument. Section 33(1)(b) definitely states 'regulating traffic of all kinds in streets and public places'. That will include regulating such type of traffic and it can be easily construed that the pillion rider also is a person who is using the vehicle and riding the vehicle. 'Regulating traffic of all kinds in streets and public places' is the power conferred upon the Commissioner and the very same sub-section also gives power to the Commissioner to regulate as regards the use of streets and public places, etc. etc. Hence, prohibiting the pillion rider will come under the regulation of all traffic in streets and public places as envisaged by Section 33(1)(b).

5. The Learned Counsel appearing for the appellants then pointed out Section 33 (6) of the Bombay Police Act and said any rule that has been made by the Commissioner ought to have followed the procedure set up in that sub-section and published in the Official Gazette or affixed copies as contemplated in that sub-section. Sub-section 33 (6) reads as follows:

(6) The power of making, altering or rescinding rules under this section shall be subject to the condition of the rules being made, altered or rescinded after previous publication, and every rule made or alteration or rescission of a rule made under this section shall be published in the Official Gazette and in the locality affected there by affixing copies thereof in conspicuous places near to the building, structure, work or place, as the case may be, to which the same specially relates or by proclaiming the same by the beating of drum or by advertising the same in such local newspapers in English or in the local language, as the authority making, altering or rescinding the rule may deem fit or by any two or more of these means or by any other means it may think suitable:Provided that any such rules may be made, altered or rescinded without previous publication if the Commissioner, the District Magistrate, or as the case may be, the District Superintendent, as the case may be, is satisfied that circumstances exist which renders it necessary that such rules or alterations therein or rescission thereof should be brought into force at once.

It is clear from the sub-section that such type of procedure is contemplated only when any rule is framed by virtue of Section 33, but in this case an order was passed by the Commissioner 'in the interest of the public' and Section 33 of the Bombay Police Act visualises passing of order and also making of rules. In respect of passing of order Section 33 (6) need be followed.

6. It was next contended that the power under Section 33 and especially the power now used by the Commissioner prohibiting the pillion rider to ride on the two-wheeled vehicles comes into conflict with Sections 74 and 85 of the Motor Vehicles Act, 1939. Section 74 reads as follows.

74. Power to restrict the use of vehicles. - The State Government or any authority authorised in this behalf by the State Government, if satisfied 'that it is necessary in the interests of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicle or of any specified class of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under Section 75 at suitable places:Provided that where any prohibition or restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the' circumstances may permit shall be given of such prohibition or restriction.

Section 85 reads as follows:

85. Pillion riding. - No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the cycle behind the driver's seat.

7. Section 85 cannot be construed as limiting the power given to the Commissioner under Section 33 of the Bombay 'Police Act. Sections 85 and 74 of the Motor Vehicles Act, 1939, are only enabling provisions and they do not give any right to the permit-holder to use the vehicle as he likes. Section 33 of the Bombay Police Act cannot be construed as coming into conflict with Sections 74 and 85 'since the. power given to the Commissioner is only for 'regulating traffic of all kinds' in the public interest and the order impugned clearly states that the same has been done in the public interest' taking into consideration the exigencies, the circumstances and the incidents that have arisen in the city of Ahmedabad in the recent days. Such a power utilized by the Commissioner of Police is only 'in the public interest' falling under the category of 'regulating traffic of all kinds in streets and public places' and that cannot be, in any way, construed as conflicting with the enabling provisions under the Motor Vehicles Act, i.e. Section 74 and Section 85 of the said Act. The power exercised by the Commissioner on the facts and circumstances of the present case cannot be said to be unreasonable.

8. For all these reasons, we are of the view that the impugned order is valid and the learned Judge is correct in dismissing the Special Civil Applications on this aspect of the case. Both the letters Patent-Appeals are dismissed. No order as to costs.


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