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Published : September 28, 2014 | Author : shankarmegha
Category : Criminal law | Total Views : 2951 | Rating :

  
shankarmegha
BA LLB, FIFTH YEAR FACULTY OF LAW MODY UNIVERSITY OF SCIENCE & TECHNOLOGY
 

License to kill: An Hour for Amendment

“It may be easier for a state to prove gross negligence than proving that she knew she struck a person”.

The above quote has much relevance to a Section under Indian Penal Code, that is, Section 304A, which was inserted by the Indian Penal Code (Amendment) Act, 1870. The language of the Section sounds like a privilege given to those who cause death by negligence. The Code is on its last legs it seems.


Section 304A of Indian Penal Code, 1860 deals with “Death caused by Negligence”. The section reads as “whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”


The maximum punishment that an accused gets for causing the death of a person is two years. Also, he can escape by giving a nominal fine. Even though the imprisonment is of either description, still it is of no use because the punishment is too less for such an atrocious crime. The Law seems to be more in the favour of accused than the victims. How can an accused be slapped with only two years imprisonment for committing murder? By the sustenance of mere two words “rash and negligent”, the accused finds an easy route to evade. Therefore, the section entails and calls for an amendment.


By adducing some of the instances, it will be evident that this section works more in favour of the culprit. A teenager sheared two youngsters and injured 3 people in Panambur District by recklessly driving in an early morning. The teenager as expected was released on bail and a case against the mother who was the owner of the vehicle was booked. The teenager was charged under section 279 of Indian Penal Code, 1860 for rash driving in public way and his mother was charged under Section 304A of the Code for causing death by negligence. Since the teenager was 16 years old and a minor, he would be treated as a juvenile which is a signal for his release on bail by the Court. This was what exactly happened to the teenager. The Panambur police who was investigating the case said that a warrant would be issued against the mother, the owner of the vehicle. Now, as the punishment is in the form of fine and two years imprisonment, any offender would easily accept his mistake and pay a heavy fine and walk off. This has been happening since decades. Considering what law is, the families of the victims will have a tough time in getting any sort of compensation from the accused because that will take years before the Court gives any sort of judgment. “There will be adjournments and the case will take different turns over a period of years and confiscating the property to compensate the victims will be difficult”.

To cite few more examples, in Satnam Singh v. State of Rajasthan, it couldn’t be proved that the truck driver purposefully mowed a man on the scooter and the truck driver was punished under section 304A of the Code. In Murari v. State of Madhya Pradesh, it was critically observed that the truck driver knew that the passengers were sitting on the slabs he was carrying. Even though he drove negligently in spite of the protests by the passengers and thereby caused the death of a woman and two children. In Kannaiyalal Arjandas v. Tribhuvandas , the prosecution was unable to prove that the accused was driving a vehicle. Another connotation regarding the applicability of this section is that if the driver of a motor vehicle does not blow the horn because of the prevailing traffic rules prohibit him in doing so, it can neither be said that he failed to exercise reasonable and proper care nor that the duty to blow horn was imperative upon him, so as to hold him guilty of negligence under this section. Further the Supreme Court has laid down that, to render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little slip or mistake that will make a man so liable. So it can be observed that at times this section creates such conditions, whereby one can use it as a defensive and protective measure in order to escape from the clutches of culpable homicide amounting to murder. In State of Karnataka v. Mohd. Ismail, a 28 year old motor cyclist hit an old man of 82 years who sustained injuries on the head and died on the spot. The death was held to be due to the rash and negligent act. What a marvel! A person can with no trouble take the defense of rash and negligent and evade even though he causes the death of any person by such act.


The instances of rich and powerful drunk drivers going crazy on the roads are becoming too recurrent. The famous BMW-hit-and-run case , the man behind the scene was Sanjeev Nanda. In this case, the accused was allegedly in a drunken state and he drove his BMW so rashly through the police checkpoint that he mowed on the persons who were sleeping. He left seven people dead and injured 8 others. After running through the policeman, he stopped his car and saw people underneath. The prosecution contended that he told his co-passenger Manik Kapoor to run quickly from the spot. His car was later cleaned by his servants. Our tardy law system as expected extended the case for almost a decade. After about ten years and ten months, the Trial Court sentenced Sanjeev Nanda to five year imprisonment. But the Delhi High Court, on July 21, 2009, had overridden the judgment by the former court and awarded him a maximum punishment of two years for rash and negligent driving. The Delhi High Court did not concur with the fact that Nanda had knowledge that such a high speed would result in the death of persons. This is really absurd and derisive. Our Penal Code provides under section 86 that unless a person is voluntarily intoxicated, he commits no crime but he will be blameworthy and culpable if the reverse happens. In the said case, the person was drunk of his own accord. How could he plead a defense that he had no knowledge of any thing that happened? He administered the contents of the alcohol himself. So, knowledge becomes completely irrelevant and inapt to my assessment in this case. The Indian law, sometimes, calls for criticisms and it makes a mockery of itself I guess after every inapt and irrational verdict it gives.


To mention an another famous case of Salman Khan, the popular bollywood figure, taken into custody in the early hours of September 28, 2002 and booked under section 304A for rash and negligent driving. He was also found to be driving under the influence of alcohol. The trial of the case began in 2005. If found guilty, he would be imprisoned for a term of ten years in jail. But he was released on bail. Not only this, he was accused of ramming his SUV into a bakery, killing one person and injuring four others. On March 14, 2011, the prosecution moved an application before the Bandra Magistrate’s Court to enhance the charges against him. Till the charges against him are established, he is free to move the way he wishes. Instead of this, he should have been kept in detention. It’s very obvious that he will find his escape by paying a huge amount. This is the most criticizing aspect of this section.

As per the current situation speaks, if a drunken driver is caught by the police, he is demanded a fine up to Rs 2000 only. Some of them don’t mind paying the amount and they move on. If they repeat the same within three years they will be sent to the prison for six months or so. But the saddest part is rarity of such imprisonments. Escaping by giving fine has become a normal course of business for the drunk drivers. In foreign countries, if a person is found drunk while driving, his license is hung up. There is no such system for the suspension of license in our country. This calls for a change in the present scheme and order. And even if we have one, then today people do not hesitate driving without a license. People love to break rules than to follow them. They believe in the famous line used by most of us today, “rules are meant to be broken”. And later, they reproach the law system that duty holders are corrupt. Today, people are furiously going behind the path which will fetch them more money. So, why will a duty holder keep themselves away if openly money is offered to them? They too belong to the same world and they too have families to support. Why will they keep their hands back? A person found drunk while driving should be kept in detention for a period of at least one month. Besides, the media should play an active and lively role here to publish the photographs of such offenders in news channels and newspapers so that he may think at least twice before repeating the same error again. Also, the term of imprisonment under section 304A should be increased from two years to ten years making it a more stringent punishment so that the drunkards refrain themselves from consuming alcohol before driving. This will work as a safeguard to other road users who come into the chains of such accidents.

The offence under this section is cognizable and bailable. This exhibit to work more in favour of the offenders than the victims. There should be an endeavor to make this offence non bailable. If not attempted then the police will, like it has been doing, arrest and release the accused on bail for even causing the death by such rash and negligent act. The accused is also released without being produced before the Magistrate. In a case where the Trial Court had sentenced the driver to fifteen months imprisonment for causing death of motorcyclist due to rash and negligent driving, the High Court acquitted holding the view that driving vehicle at a ‘high speed’ did not necessarily mean that the accused had driven the vehicle in a rash and negligent manner to invite sections 279 and 304A of the IPC. In this case, if it does not mean rash or negligent act, then what does it connote? If it fair and adequate to acquit a person who is guilty of causing death or such bodily injury that it could have proved fatal to a person? Law here seems to be biased. It can stretch its hands to seek evidence but it has no heart to show pity to those who suffer because of its verdict.


There have been tumultuous changes in society. Human relations have faced many ups and downs. This has not spared even a doctor-patient relationship. The rapid changes in the medical field have strained the age-old good relations between the patient and the treating physician or surgeon. Criminal law is applicable to even doctors and they are no exception to it. It is estimated that about 98, 000 people die every year in United States because of mistakes committed by Medical Professionals. One can well imagine the figures in India. However, law does not punish the doctors for every act but only the negligent ones. Doctors are required to take reasonable care before treating their patient. After the declaration form is duly filled by the family members of the patient, it does not mean that a doctor can evade from his liability. Leaving a scissor, while operating, inside the body is a gross negligence. Here, the doctor will be amenable if such an act proves fatal for the patient. A doctor can also be culpable under this section if he operates a patient not being qualified for the same. According to the recent Supreme Court decision, “the standard of negligence required to be proved against a doctor in cases of criminal negligence especially that under section 304A of Indian Penal Code, should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care”


The Indian Penal Code (Amendment) Bill, 2010 , proposed that in section 304A, for the words “any rash or negligent act” the words “any rash or negligent act, except by any act of rash and negligent driving of motor vehicle,” shall be substituted. After section 304B of the principal Act, a new section 304C was proposed to be inserted which would read as “Whoever drives any motor vehicle, or rides, in any public place in a rash or negligent manner or drives or rides the motor vehicle under the influence of liquor so as to endanger human life, and causes death by his rash and negligent act, shall be committing the offence of murder and shall be punished with death or imprisonment for life and shall also be liable to fine which shall not be less than fifty thousand rupees. The statement of object and reasons which sustained the proposition and incorporation of the above provision in the Bill was that when the section was inserted, there were no motor vehicles in the country. They arrived only during the first decade of the twentieth century. This section was inserted mainly to protect the Britishers who possessed the vehicles that could cause an accident. That is why the offence under this section was made bailable and that too with a minimum punishment to serve their interests. But the conditions have changed now. This works as an advantageous section for the accused. After the passage of one hundred and fifty years and by looking at the present scenario, the provisions should be made more stern and strict. And the deaths caused by such rash and negligent act should be a murder punishable under section 300 of Indian penal Code. Hence, having regard to all this, the Bill for amending the section was to be introduced. But as one can anticipate, the Bill is still pending before the Lok Sabha.

Amendment to Section 304A is of urgent need. If threatening a person under section 506 of Indian Penal Code is made non-bailable then it is really difficult and intricate for one to digest that someone charged under section 304A can get away with a license to kill. Considering what law has been and what it is today, it seems as the families of the victims will have to struggle hard to get any sort of compensation because it takes years for a case to be considered by the Courts. Right to speedy trial is one of the fundamental rights under the wide scope of Article 21 of the Constitution of India. But most of the under trials are the victims of the same. They have to remain in jail for a period greater than their offence. Therefore, not only amendment is required but there should be the establishment of Fast Track Courts. That will help in quickly winding up cases especially under Section 304A of Indian Penal Code. All depends upon the way the Court handles the cases. Unless any reformation in the present legal system is brought, all such suggestions will remain in the pages and it will never get a chance to be made effective. We should remember that good words on paper, which are for the betterment of all, should be respected and an endeavor should be made for its implementation. Otherwise, it will lose its essence and when we look back to them, they will turn their faces around because it will be too late then.

*******************************
[1] Minneapolis & St. Paul taken from http:// www.timesofindia.indiatimes.com as visited on April 16, 2012.
[2] Is IPC section 304A a license to kill, as posted on Wednesday, August 25, 2010, http://www.daijiworld.com as visited on April 15, 2012.
[3] The eminent High Court Advocate PP Hedge Says, taken from http://www.daijiworld.com as visited on April 15, 2012.
[4] December 17, 1999.
[5] February 23, 2001.
[6] May 8, 1997.
[7] Author “Bharat Maheshwari B.A.L.L.B IV Year, New Law College, Bharti Vidhyapeeth University, Pune” taken from http:// www.legalservicesindia.com as visited on April 16, 2012.
[8] June 27, 1988.
[9] January 10, 1999.
[10] Sports Utility Vehicle.
[11] www.deccanherald.com as visited on April 16, 2012.
[12] Taken from “Panorama” http://www.deccanherald.com as visited on April 16, 2012.
[13]http:// www.sampspeak.blogspot.in “Rash and Negligent Driving: What? What is the Penalty?” posted on April 23, 2010 as visited on April 16, 2012.
[14] Taken from http://www.oppapers.com as visited on April 16, 2012.
[15] ”Medical negligence and doctor’s liability” by”Talha Abdul Rehman” taken from http://www.issuesinmedicalethics.org as visited on April 16, 2012.
[16] ”Medical negligence and doctor’s liability” by”Talha Abdul Rehman” taken from http://www.issuesinmedicalethics.org as visited on April 16, 2012.
[17] The Bill was to be introduced before the Lok Sabha by Shri Adhir Ranjan Choudhry, M.P to further amend the Indian Penal code, 1860.
[18] The Indian Penal Code (Amendment) Bill, 2010 which had to be introduced before the Lok Sabha.
[19] 1870




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