Gauhati High Court Asks Assam DGP To Direct Police Stations Not To File 'Hit And Run' Case U/S 106(2) BNS As Provision Not In Force Yet
LIVELAW NEWS NETWORK
16 Dec 2024 1:40 PM IST
The Gauhati High Court recently asked Assam's Director General of Police to issue necessary direction to the police stations under his jurisdiction, not to register any case under Section 106 (2) of the BNS–pertaining to death by rash driving which is not culpable homicide–which has not come into force till date.
Section 106(2) BNS states that "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 ten years, and shall also be liable to fine".
The said observation was made by the division bench of the Chief Justice Vijay Bishnoi and Justice Kaushik Goswami during the hearing of a PIL challenging the validity of sub-section (2) of Section 106 of the Bharatiya Nyaya Sanhita (BNS), 2023, going against the Constitution compelling the person to be a witness against themselves.
“From the above notification it is clear that the provision of sub-section (2) of section 106 of the BNS has not come into force till date. In such circumstances, the challenge of the petitioner to the provision of sub-section (2) of section 106 of the BNS is premature and, therefore, the question of granting the relief, as prayed for in the writ petition, by declaring the provision of sub-section (2) of section 106 of the BNS as unconstitutional, the same being violative of Article 20(3) of the Constitution of India, does not arise...Having heard the learned counsel for the parties, we are of the view that if the police is registering cases under sub-section (2) of section 106 of the BNS, though it has not come into force till date, the individual person against whom any such FIR is filed, is free to avail appropriate remedy available to him by approaching the competent court of law,” the Court noted.
"However, the Director General of Police, Assam, should take note of this fact and issue necessary direction to the police stations under his jurisdiction not to register any case under the provision of sub-section (2) of section 106 of the BNS, 2023, which has not come into force till date,” the Court added.
It was contended in the PIL that sub-section (2) of Section 106 of the BNS is in violation of Article 20 (3) of the Constitution of India, which provides that no person accused of any offence shall be compelled to be a witness against himself.
It was submitted that the Government of India, in exercise of the powers conferred by sub-section (2) of section 1 of the BNS, has issued a notification dated February 23, 2024 and has appointed July 1, 2024 as the date on which the provisions of the BNS shall come into force. It was noticed that the said notification specifically says that the provisions of the BNS, except the provision of sub-section (2) of section 106 shall come into force from July 1, 2024.
The Counsel appearing for the petitioner submitted that though the provision of sub-section (2) of section 106 of the BNS, 2023 has not come into force till date, but the Assam Police is registering cases under the said provision.
The Court noted that if the police is registering cases under sub-section (2) of section 106 of the BNS, though it has not come into force till date, the individual person against whom any such FIR is filed, is free to avail appropriate remedy available to him by approaching the competent court of law.
Case Title: Ritumani Deka v. The Union of India & Ors.
Citation: 2024 LiveLaw (Gau) 96
Case No.: PIL/74/2024
