[Opinion] Clarifying Misconceptions Around Hit and Run Provisions – Bharatiya Nyaya Sanhita 2023

Table of Contents

1. New law has not yet come into force, IPC is still the existing law
2. The hit and run provision allows drivers involved in accident to protect themselves

The truck drivers are protesting against the new law on hit and run cases. First things first. This may be due to many misconceptions about the new law which this article seeks to dispel.

1. New law has not yet come into force, IPC is still the existing law.

It is a misconception amongst public that the Bharatiya Nyaya Sanhita, 2023 (BNS), which is to repeal and replace the Indian Penal Code, 1860, has come into force with effect from 25.12.2023 on which date it received the assent of the President of India. Section 1(2) of BNS does not state that it will come into force on that date. Instead, BNS will come into force with effect from the date to be notified by the Central Government in Official Gazette. Central Government will notify date of coming into force after making necessary preparations including making Police Officers and personnel aware of new law, making changes to existing complaints software etc. As of date, hit and run is still governed by provisions of Indian Penal Code, 1860.

2. The hit and run provision allows drivers involved in accident to protect themselves

The following points are noteworthy as regards the proposed new provision of BNS on hit and run:

• Section 106(2) addresses situations where the offender escapes from the scene of the incident without reporting it to a police officer or Magistrate after the incident. In such cases, the punishment is very severe, with a maximum term of imprisonment of ten years and also with fine.
• Section 106(2) of BNS reads as follows:

“Whoever causes 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 10 years and shall also be liable to fine.”

• Punishment under section 106(2) is not attracted merely by virtue of driver escaping from the scene after the incident to escape the wrath of bystanders who might mob-lynch him. Offence is committed only if escape from scene is coupled with non-reporting by him to Police or Magistrate soon after the incident.
• In other words, the intention of the provision is that the driver may escape from accident spot to escape mob fury but he mustsoon afterwards report accident to Police so that the victim receives medical treatment within the “Golden Hour” and victim’s life can be saved.
• The intention is that the driver is entitled to protect himself by escaping from the accident spot to save himself from mob fury but he is also required to spare a thought for the victim and try to save victim’s life by reporting it soon afterwards to the Police.
• If driver escapes from accident spot but does not report the accident to the Police soon after the incident, adverse inference will be drawn against him and it will be treated as a hit and run case attracting higher punishment.
• If he escapes from the spot and reports the accident to Police soon after the accident, he will not be guilty under the stringent hit and run provisions of section 106(2). If it is found that there was rash and negligent driving by him, he will be booked under section 106(1) which is normal provisions for causing death by rash or negligent act under which imprisonment of either description (simple or rigorous) upto 2 years and fine is provided for. If it is found that there was no rash or negligent driving by driver and victim was guilty of such rashness or negligence, driver will not be booked under either section 106(1) or section 106(2).