Section 304A Of Indian Penal Code: The Amendment That Never Happened

The Central Committee for Reforms in Criminal Law has stirred up a lot of debate in the Indian legal ecosystem. While the debate around the Central Committee has mainly revolved around its constitution and lack of representation, it has also brought to the forefront the ever pending reforms needed in the Criminal Justice System.

Most judges, lawyers and academics agree that the heart of Criminal Law in India, i.e., the Indian Penal Code is still stuck in the colonial era; flooded with statutes that no longer satisfy the needs of the nation in the 21st century. The Indian Penal Code, which was originally codified during the British era under the leadership of Lord Macaulay, by and large remains the same today. The Code, which runs into over 500 sections, is quite exhaustive and covers everything from petty offences, heinous crimes to offences against the state. While a few sections have become redundant due to changing times, many continue to be in active use. The code needs reconsideration, both in terms of substantive aspects and well as for the quantum of punishment it lays down. One of the sections which is in dire need of amendment, is Section 304A.

Introduction To Section 304A

The original Indian Penal Code that was drafted in 1860 had no provision providing punishment for causing death by negligence. Section 304A was thus later inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act, 1870. So, this section did not create a new offence but was directed towards the offences which fall outside the range of section 299 and 300 of the Indian Penal Code, 1860. When neither intention nor the knowledge to cause death is present.

Lord Hewart, C.J. In R v. Bateman, laid down the following two principles of criminal liability in the case of negligence:

• To establish criminal liability for negligence in the particular case the fact must be such that, the negligence of the accused went beyond the mere matter of compensation between the subjects and showed such disregard for the life and safety of others, as to the amount to a crime against the state and the conduct deserving punishment.
• Recklessness generally connotes indifference to a risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a degree of negligence, as would justify a conviction.

So to bring a case of homicide under section 304A, of the IPC the following conditions must exist:

1. There must The death of the person in question;
2. The accused must have caused such death; and
3. That such act of the accused was rash or negligent and that it did not amount to culpable homicide.

Section 304A of the IPC reads as follows: Causing death by negligence; Whoever causes the death of any person by doing any rash or 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 provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death.

The section deals with homicide by negligence and covers the types of offences, where death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death, but because of the rash and/or negligent act of the offender. When any of the two elements, namely, intention or knowledge, is present this section will not be applicable.

The section lays down a maximum imprisonment term of 2 years. This, as we shall see, has been found to be insufficient and has even led to the judiciary calling upon the parliament to amend the section.

The Apex Court's View

The Supreme Court of India has been one of the key stakeholders in the debate for an amendment of S 304A of the Indian Penal Code. The Apex Court, on multiple occasions has expressed that the punishment laid down in S 304A is ghastly inadequate. However, the Supreme Court has time and time again reiterated that it is upon the parliament to decide and do the needful.

In 2007, while hearing a criminal appeal in the case of Prabhakaran vs. State of Kerala (2007)14SC C 269, which dealt with a bus driver convicted for negligent driving and causing the death of a 10 year old school going child, the Supreme Court bench comprising of Justice Arijit Pasayat and Justice D. K. Jain noted, "It is contended by the learned Counsel for the State that in a case of this nature two years sentence is grossly inadequate. There is substance in this submission considering the increasing number of vehicular accidents resulting in death of large number of innocent persons. It is for the legislature to provide for an appropriate sentence. But the statute presently provides for a maximum sentence of two years."

A good number of cases under Section 304A of the Indian Penal Code relate to deaths caused by drunk driving. In the case of State of Punjab vs. Saurabh Bakshi 2015(4)SCALE340, which dealt with the deaths of two individuals during a car crash caused by rash and negligent driving, the Supreme Court bench comprising of Justice Deepak Misra and Justice Prafulla C. Pant opined, "Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a non-challant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re-look and re-visit the sentencing policy in Section 304A, Indian Penal Code. We say so with immense anguish."

This was reiterated verbatim by the court a year later in the case of Abdul Sharif vs. The State of Haryana (2016)15SCC204, where the court further added, "We have said that Section 304-A Indian Penal Code should be revisited so that higher punishment can be provided. The aforesaid passage clearly indicates that punishment provided Under Section 304A is absolutely inadequate. We are absolutely conscious, as the aforesaid would convey, it is up to the Parliament."

The Law Commission of India

In June 1971, the Law Commission submitted its 42nd Report for revision of the Indian Penal Code. Clause 127 of the said Bill sought the amendment of section 304A. 'In section 304A of the Penal Code, for the words "two years", the words "five years" shall be substituted.'

The 1978 Bill also proposed the addition of a new section 304B in the Indian Penal Code. "'304B. Causing death or injury by rash and negligent driving. Whoever by rash or negligent driving of any vehicle causes the death of any person or causes any injury which is likely to cause the death of such person, the causing of such death not amounting to culpable homicide, and drives or runs away without informing any police station within a reasonable time, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Accordingly, the government introduced a Bill, namely, the Indian Penal Code (Amendment) Bill, 1978 in Rajya Sabha. That Bill was passed by the Rajya Sabha. However before passing the Bill, the then Lok Sabha was dissolved and the said Bill could not find a place in the book of statutes.

The Law Commission of India in its 156th Report, submitted in 1997, affirmed the changes proposed in the 42nd report for the IPC along with numerous other proposals.

In August 2009, The Law Commission of India, headed by Chairman Dr. Justice AR. Lakshmanan, in its report on Legal Reforms To Combat Road Accidents (Report No. 234) approved of the aforementioned proposals from the 1978 Bill and stated, "The Law Commission of India now feels that even the maximum term of imprisonment of five years in section 304A, IPC would not be adequate on the touchstone of the theory of deterrence keeping in view the present days' practical reality and the same should be increased to ten years (also for the proposed sub-section (2) thereof). It is also felt that the offence under section 304A, IPC should be non-bailable." It further stated, "Causing death of any person through driving under the influence of drink or drugs should be punishable with the minimum term of imprisonment of two years. Any second or subsequent offence under section 304A, IPC, if the rash or negligent act involved is the act of driving other than driving under the influence of drink or drugs, should be punishable with the minimum term of imprisonment of one year." However, these suggestions again failed to end up on the statute books.

Conclusion

If there is one thing that is clear, it is that Section 304A has been in dire need for an amendment for a long time and the same has been reiterated by the Apex Court and Law Commission of India on numerous occasions. The quantum of punishment in Section 304A is highly inadequate. It is believed that a higher term of punishment will severely deter drunken driving and other negligent acts. It remains to be seen if the new Central Committee for Reforms in Criminal Law will take cognizance and propose an amendment of Section 304A in line with the suggestions of the Apex Court and Law Commision Reports.