This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nyaya Sanhita Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses changes introduced to the provision on death by negligence, including enhancement of punishment and obligatory reporting mechanisms.
Cl. 104(1), BNS seeks to replace s. 304A IPC on causing death through a rash or negligent act which does not amount to culpable homicide. However, Cl. 104(1) enhances the maximum punishment from two years as prescribed in s.304A to seven years and additionally mandates imposition of a fine. The reason for these changes is not clear from the Statement of Object and Reasons in the Bill. The maximum punishment may have been enhanced as a response to repeated observations made by the Supreme Court regarding the inadequacy of punishment under s. 304A, in the context of increased vehicular accidents.[1]
Further, Cl. 104(2) introduces an aggravated form of death by negligence with a maximum punishment of ten years for persons who āescape from the scene of the incident or fail to report the incident to a Police officer or Magistrate soon after the incident.ā This aggravated form of the offence may have been introduced to address hit and run accident cases, to ensure that the accident is immediately reported and the victims receive timely medical support.[2]
However, Cl. 104(2) will apply to all forms of rash or negligent act which may cause death. From a textual reading of the clause, it is unclear whether both requirements regarding āescaping from the scene of the offenceā and āfailure to report to the police officer or magistrateā need to be fulfilled to qualify as an aggravated form of causing death by negligence. There may be situations where a person can fulfil one of the requirements only by violating the other. For example, in case of a vehicular accident where the person does not have a mobile phone, reporting to the police or magistrate may not be possible without leaving the scene of the incident. Similarly, in accident cases, a person might be compelled to leave the scene of offence due to apprehension of assault by bystanders. Such instances may fall within the purview of Cl. 104(2), even if there is no intention to disregard the law.
It should be kept in mind that the provision is not limited to instances of motor vehicle accidents, but to all cases of death by negligence and the requirement to report the incident to the police or the magistrate may be unmet as the person may be unaware of their role in the death of the victim or whether their act was rash or negligent. For instance, in cases of medical negligence where the death may not be immediate, or the cause of the death is unclear or whether it was caused due to the negligence of the medical staff, a person may fail to report the incident to the police or the magistrate, and be liable for a higher punishment.
Finally, the requirement to mandate reporting of the incident to the police or the magistrate may compel a person to be a witness against themselves and violate their right to self-incrimination under Art. 20(3) of the Constitution.
[1] State of Punjab v. Dil Bahadur 2023 SCC OnLine SC 348 para 11; Abdul Sharif v. State of Haryana (2016) 15 SCC 204 paras 4-6; State of Punjab v. Saurabh Bakshi (2015) 5 SCC 182, paras 25-26.
[2] S. 2(12A) of Motor Vehicles Act, 1988, introduced in 2019, defines the term āgolden hourā as the hour-long period following the traumatic injury during which prompt medical care may avert the possibility of death. As per S. 162 in Chapter XI (w.e.f 1.04.2022), insurance companies shall provide schemes for treatment of road accident victims during the golden hour.
