It is interesting to observe that while Section 304A was made applicable in general to circumstances where the death of a person was caused by doing a rash or negligent act, it did not specifically deal with the issue of rash and negligent driving as has been exclusively provided under Section 106(2) of BNS. Further, Section 106(2) makes an important distinction from Section 304A by adding the word “and” between rash and negligent as compared to “or” in rash or negligent under 304A, and has further qualified this by the word “driving” to make the provision specific to acts of rash and negligent driving. Now, the prosecution has to prove beyond reasonable doubt both “rash” and “negligent” act of the accused compared to the earlier rash “or” negligent act. Therefore, it can very well be argued that where on the one hand the provision could have acted as a deterrent to check rash and negligent driving, on the other hand it has also made it equally difficult for the prosecution to prove the twin test of rash and negligence.
In a society which is always short on temper, we often read reports where the driver fled from the scene, often abandoning the vehicle behind to escape not only being caught, but from the threat of mob fury. Interestingly, Section 134 of the Motor Vehicles Act, 1988 (“MVA”), which also deals with road accidents (however, it limits itself to instances where only injury is caused, and not death), provided a safeguard to drivers. The Section, while requiring the driver of a motor vehicle to take reasonable steps to secure medical attention for the injured person also carves out an exception for the driver to assess and analyze the ground situation with respect to his own safety from mob fury or any other reason beyond his control, thereby providing a safeguard to his own life from immediate threat. It further allows the driver / person in charge of the vehicle to report the accident and injury within twenty four hours of occurrence.
It is evident that the law engrafted under Section 106(2) does not provide any protection to drivers like Section 134 of MVA. However, one can argue that the gravity of the offence is also much higher under Section 106(2) as compared to Section 134 and that, therefore, there is no need to add any such safeguard.
The enhancement in the sentence of imprisonment under section 106(2) BNS had spurred panic, particularly amongst the truck drivers, that if they were legally duty bound to stay at the scene of incident, they could be subjected to mob fury and that if they escape from the crime scene, it would attract enhanced liability (imprisonment) under Section 106(2). Considering inter-State travel by trucks, buses and taxis, etc. this could be seen as a catch-22 situation – a matter of concern not only for the drivers but also business owners. Due to the widespread protests by various unions, the operation of the Section was kept in abeyance till the government reconsidered its decision afresh.
Source: Barandbench
