INTRODUCTION
‘Justice, not retribution’ is asserted to be the purpose of the new Criminal bills. However, one section in the Bhartiya Nyaya Sanhita has caused an uproar among the transporters and drivers around the country, for it seems to be too stringent. This essay will delve into the intricacies of Section 106(2) of the BNS, and focus on the major differences between the proposed law and the provision in the Indian Penal Code.
The Indian Penal Code, 1860 (“IPC”) was repealed and replaced with the Bhartiya Nyaya Sanhita, 2023 (“BNS”) on the 25thof December, 2023. While the BNS is set to come into effect from July 1st, 2024, section 106(2) is under scrutiny and will only come into force after proper consultation with the All-India Motor Transport Congress. The main aim of the new criminal laws was to let go of the draconian laws that were designed to punish and oppress the Indians in the colonial era. The section that is most particularly causing a stir of controversy among transporters and drivers around the country is Section 106(2) of the BNS. This section has been deemed as the ‘black law’ by the protesters in Maharashtra, Punjab, Madhya Pradesh, Uttar Pradesh, Himachal Pradesh, and Jammu& Kashmir.
ABOUT SECTION 106(2) OF BNS, 2023
According to Section 106(2) of the BNS, “Whoever causes the death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.”[1]
The striking feature of this section is that it attempts to plummet the number of hit-and-run cases and aims to punish those who flee the scene after causing the accident. Simply put, a hit-and-run case, is a criminal offence wherein a driver is accused of hitting another person and abandoning the scene without taking any responsibility. [2]The proposed jail imprisonment for this offence is a period which may extend to ten years, and shall also be liable to a fine of Rs.7 lakh. This offence has been classified as non–bailable, which means that bail will not be granted as a right. [3]
This section serves a two-fold purpose. Firstly, to fill the lacuna in the previous law and secondly, to create responsible drivers. According to reports, the number of reported hit-and-run cases in India stood at 67,387 in 2022. The majority of the drivers, fearing mob lynching and imminent imprisonment, flee the scene after the accident. This prevents the victims from getting immediate medical care in the ‘golden hour’, since many incidents occur in isolated areas, away from human contact. The golden hour is the critical period between life and death. It is the period immediately after the accident during which lives can be saved if medical support is provided.[4]
EARLIER LAW
There is no exclusive section under the IPC that deals with hit-and-run cases. Currently, the hit-and-run cases get tried under section 304A of the Indian Penal Code. Under this provision, the culprit is liable to jail imprisonment for up to two years, a fine, or both. A peculiar difference between section 3024A of the IPC and section 106(2) of the BNS, is that offences under section 304A are bailable offences.
Furthermore, section 279 of the IPC deals with driving. It reads, “Any individual who is driving or riding a vehicle negligently, thereby endangering human life, will be punished by law”. The punishment prescribed is punishment upto six months, a penalty of Rs. 1,000, or both.
CONCERNS ABOUT SECTION 106(2) OF BNS, 2023
The BNS leaves scope for drivers to escape harsh punishments under section 106(2). The way of doing this would be, for perpetrators to dialling ‘108’ immediately after the accident (this can be done from a place of safety, where the driver takes refuge to escape mob lynching). Drivers would have to inform the authorities of the passenger/s injured, the vehicle details of the driver, the location of the accident and assurance of cooperation in the investigation. This raises a major concern, as such a procedure can be a violation of Article 20(3) of the Indian Constitution, which guarantees protection against self-incrimination.[5]Furthermore, when taking the nature of the profession under consideration, we find that drivers often have to work in the protracted period of the night, usually coupled with inadequate sleep and the deplorable conditions of Indian roads. Oftentimes, blind turns, poor visibility, and weather conditions cause accidents.
CONCLUSION
India is not the first country that has introduced a strict law for the offence of hit-and-run. According to the Road Safety Annual Report published by the International Transport Forum, countries with strict laws against hit-and-run cases, like the United States, United Kingdom and, France have had lower road fatality data. Thus, this legislation acts as a model to curb the growing number of deaths on the road. Despite the staunch and valid opposition that this provision faces from the drivers and transporters, one cannot overlook the numerous benefits this law brings. It ushers the sense of road safety and responsibility in India, and also leads to more victims getting access to support in the ‘golden hour’. Ultimately, creating awareness about the said law is paramount to mitigate the fear and misinformation in the minds of the drivers.
**Section 106(2) of the BNS, 2023 has been put on hold as of and all the hit-and-run cases are tried under the provisions of the IPC until further notice.**
Author(s) Name : Riya Kulkarni (Government Law College, Mumbai)
Reference(s):
[1] “Three criminal laws to be effective from July 1”( The Hindu, 24 February 2024) <https://www.thehindu.com/news/national/three-newly-enacted-criminal-laws-to-come-into-effect-from-july-1/article67881602.ece> Accessed 3rd April, 2024
[2]Naina Jain, “Infographic: Hit and Rin accidents in India in last 5 years” (Deccan Herald, 04 January 2024)<https://www.deccanherald.com/india/infographic-hit-and-run-accidents-in-india-in-the-last-5-years-2835147>
Accessed 10th April 2024
[3]Satya Muley, “Upholding justice and safety: The Controversy surrounding the new hit-and-run law”(Bar and Bench, 24 February 2024) <https://www.barandbench.com/columns/upholding-justice-and-safety-controversy-surrounding-the-new-hit-and-run-law>
Accessed 10th April,2024
[4]Laura Hoemeke, Nigel Rossiter, Sylvio Augustin, Alejandra Cortés-Rodríguez, Michelle Joseph, “The Golden Hour: the critical time between life and death” (Think Global Health, 7 September 2021)
<https://www.thinkglobalhealth.org/article/golden-hour-critical-time-between-life-and-death>
Accessed 10 April 10, 2024
[5]Saumya Saxena, “Right against Self Incrimination”, (iPleaders, 18 May 2019)
<https://blog.ipleaders.in/right-against-self-incrimination/>
Accessed on 10th April, 2024
