Abstract: The enactment of the Bharatiya Nyaya Sanhita, 2023 (hereinafter ‘BNS’) marks a watershed moment in the codification of Indian criminal law, supplanting the Indian Penal Code, 1860 that governed the subcontinent for over a century and a half. Among the most significant legislative innovations introduced by the BNS is Section 106(2), which specifically criminalises hit-and-run conduct — the act of a driver causing death or grievous hurt through rash and negligent driving and thereafter fleeing the scene without reporting the incident to law enforcement authorities. This paper undertakes a detailed doctrinal and comparative examination of the BNS provisions governing hit-and-run offences. It analyses the statutory language of Sections 106(1) and 106(2) of the BNS, evaluates the quantum of punishment prescribed, and situates the legislation within its historical, social and policy context. The paper further engages with leading judicial precedents under the predecessor regime of the Indian Penal Code, 1860 and considers how those interpretive principles inform the application of the new statutory framework. A comparative perspective drawing upon analogous legislative models in the United Kingdom, United States and Australia is offered to contextualise India’s regulatory approach. The paper concludes by identifying existing lacunae in the statutory scheme and offering proposals for reform.
Keywords: Bharatiya Nyaya Sanhita 2023; hit-and-run; Section 106; criminal negligence; road accident law; Motor Vehicles Act 1988; IPC 304A; judicial interpretation
Introduction: India’s roads have long been a theatre of preventable tragedy. According to data published by the Ministry of Road Transport and Highways, more than 1.68 lakh persons perished in road accidents during 2022 alone — a figure that places India among the countries with the highest road fatality rates in the world.[1] Within this harrowing landscape, hit-and-run incidents constitute a particularly egregious category: accidents in which the offending driver, instead of rendering aid or summoning assistance, flees the scene, leaving the victim without immediate care and denying investigators the opportunity to identify the perpetrator. The consequences of such abandonment are twofold — victims are deprived of timely medical attention that may be the difference between life and death, and the demands of justice go unmet when perpetrators evade accountability.
The legislative response to hit-and-run conduct has evolved incrementally in India. Under the Indian Penal Code, 1860 (hereinafter ‘IPC’), the primary provisions invoked against negligent drivers were Sections 279 (rash driving), 304A (causing death by negligence) and 338 (grievous hurt by act endangering life).[2] While these provisions addressed the negligent act of driving, they did not specifically penalise the subsequent act of fleeing the scene. The Motor Vehicles Act, 1988 imposed a duty of care upon drivers involved in accidents, but enforcement of that duty in the criminal law context remained incomplete.[3]
The Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024, represents a comprehensive overhaul of India’s substantive criminal law.[4] Central to its contribution on road safety is Section 106, which not only preserves the offence of causing death by rash and negligent driving but introduces a dedicated sub-clause — Section 106(2) — that imposes a substantially enhanced sentence upon any driver who, having caused death, escapes without reporting the matter to the police or a magistrate. This paper examines that provision in depth, tracing its legislative genealogy, unpacking its normative content, exploring its judicial context and assessing its likely effect on the criminal justice response to hit-and-run accidents in India.
Legal History and Background
The Indian Penal Code, 1860: The Prior Regime: For 163 years following its enactment, the Indian Penal Code, 1860 served as the primary instrument of substantive criminal law in India. With respect to traffic offences, three provisions were of particular relevance. Section 279 penalised rash or negligent driving on a public way so as to endanger human life. Section 304A criminalised the causing of death by any rash or negligent act not amounting to culpable homicide, prescribing imprisonment up to two years or a fine or both. Section 338 addressed the causing of grievous hurt by an act of rashness or negligence. These provisions, however, shared an important limitation: they attached criminal liability to the act of dangerous driving itself but not to the morally aggravated conduct of fleeing the scene following an accident.[5]
The inadequacy of this framework was well-recognised. The Law Commission of India observed that the absence of a specific deterrent against post-accident flight contributed to widespread impunity and undermined the purposes of criminal law.[6] Prosecutors were required to deploy general provisions in creative ways to capture the flight element — sometimes charging drivers under Section 201 IPC (causing disappearance of evidence) — but such strategies were uncertain in their application and frequently unsuccessful.
The Motor Vehicles Act,1985: The Motor Vehicles Act, 1988 addressed the procedural dimensions of road accidents. Section 134 imposed upon the driver of a motor vehicle involved in an accident causing injury or death an obligation to take reasonable steps to ensure medical attention was provided to the injured person and to report the accident to the nearest police station. [7]A failure to comply with Section 134 attracted a relatively modest fine. Critically, however, the Motor Vehicles Act did not itself provide for imprisonment as a consequence of the driver’s failure to report, and the interplay between that statute’s reporting duty and the criminal law framework of the IPC was never satisfactorily resolved by the legislature.
The Motor Vehicles (Amendment) Act, 2019 introduced a scheme of compensation for hit-and-run victims under Section 161, establishing a fund from which interim relief could be disbursed even where the offending vehicle or driver was not identified.[8] While this ameliorated the civil dimension of the problem, the criminal law gap persisted. The Amendment Act did not create any new offence specifically addressed to the conduct of the fleeing driver.
Genisis of the Bhartiya Nyaya Sanhita, 2023: The BNS emerged from a process of comprehensive legislative review initiated by the Central Government with the stated objective of decolonising Indian criminal law, modernising obsolete provisions and reflecting the constitutional and developmental values of independent India.[9] Three bills were introduced simultaneously in July 2023 — the Bharatiya Nyaya Sanhita Bill, the Bharatiya Nagarik Suraksha Sanhita Bill and the Bharatiya Sakshya Bill — replacing the IPC, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively. Following examination by a Parliamentary Standing Committee, the Bills were passed and received Presidential assent on 25 December 2023, with operative force from 1 July 2024.
Statutory Framework Under the Bhartiya Nyaya Sanhita,2023:
Section 106(1): Causing death by Negligence: Section 106(1) of the BNS provides that 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 five years, and shall also be liable to a fine.[10] This provision substantially corresponds to, and indeed enhances the penalty under, the former Section 304A of the IPC, which permitted imprisonment only up to two years. The increase in the maximum term of imprisonment from two years to five years reflects legislative acknowledgement that negligent driving resulting in death is a serious offence warranting condign punishment.
The elements of the offence under Section 106(1) may be identified as follows: (i) an act of rashness or negligence on the part of the accused; (ii) that act not amounting to culpable homicide; (iii) the act causing the death of a person; and (iv) a causal nexus between the negligent act and the resultant death. The standard of negligence applicable in this context is the criminal standard, which is higher than mere civil negligence — the accused must be shown to have acted with a degree of rashness or negligence that a reasonable person in the same circumstances would recognise as creating a substantial risk of harm.
Section 106(2): The Hit-and-Run Provision: Section 106(2) of the BNS introduces the specific legislative innovation that gives this paper its central focus. It provides that whoever, being the driver of a motor vehicle involved in an accident resulting in death, escapes or flees from the scene of the accident without reporting the accident to a police officer or a magistrate, shall be punished with rigorous imprisonment for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to a fine.[11]Several features of this provision merit close examination. First, the provision is confined to accidents resulting in ‘death’ it does not, on its face, apply to accidents causing grievous hurt alone, a limitation that has attracted some scholarly criticism. Second, the punishment prescribed is rigorous imprisonment, meaning hard labour, as opposed to simple imprisonment, which underscores the legislature’s intention to treat hit-and-run as a grave aggravation of the base offence. Third, the provision incorporates a mandatory minimum sentence of five years, thereby limiting the sentencing discretion otherwise available to the court. Fourth, the offence consists not merely in the causing of death but in the subsequent act of flight: the driver must both cause a fatal accident and fail to report it in order to attract Section 106(2).
Reporting Obligations and its Contours: Central to the architecture of Section 106(2) is the reporting obligation. The provision exempts from enhanced punishment any driver who, having caused a fatal accident, reports the matter to a police officer or a magistrate. The statute does not specify the time within which such a report must be made, nor does it prescribe the form that the report must take. These are matters that will inevitably require judicial interpretation.
The question of what constitutes ‘reporting’ is not a trivial one. Must the driver present themselves in person, or does a telephonic report suffice? Is a report made through an intermediary a bystander who calls the emergency services at the driver’s behest sufficient? Does a report made hours after the accident satisfy the statutory requirement, or does the use of the word ‘escape’ in the provision contemplate only a report made at or near the scene? These interpretive questions will occupy the courts in the years ahead, and the answers they provide will determine the practical scope of Section 106(2) in ways that the legislature has not anticipated.
Essential Elements of the Hit and Run Offence
Rash and Negligent Act: The expression ‘rash or negligent act’ carries a well-settled meaning in Indian criminal jurisprudence. Rashness connotes the taking of a risk that the actor recognises as likely to lead to harm, proceeding nevertheless in the hope that the feared consequence will not materialise. Negligence, by contrast, denotes the failure to exercise the degree of care that a reasonable and prudent person would exercise in the circumstances, the actor being oblivious to the risk rather than consciously indifferent to it.
In Jacob Mathew v State of Punjab,[12] the Supreme Court of India drew a careful distinction between the two states of mind, holding that criminal negligence requires ‘a high degree of negligence… gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular.’ This articulation of the criminal negligence standard is directly applicable to the interpretation of Section 106(1) and, by extension, to the foundational element of the Section 106(2) offence.
Motor Vehicle Involved in an Accident: Section 106(2) is explicitly confined to the driver of a ‘motor vehicle’. The Motor Vehicles Act, 1988 defines a motor vehicle as ‘any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source.’ This definition encompasses all ordinary road vehicles but excludes, for example, animals and non-motorised cycles. The requirement that the accused be a ‘driver’ rather than merely a passenger or occupant is significant and may generate disputes in cases involving co-drivers or vehicles operated by multiple persons.
Escapes or Flees from the Scene: The actus reus of the Section 106(2) offence lies in the act of escape or flight. The terms ‘escapes’ and ‘flees’ are plainly synonymous and appear to have been used together for emphasis. They connote a deliberate departure from the scene of the accident, distinguishing the case of a driver who remains present and renders assistance or summons help from the case of one who abandons the victim.
A significant interpretive question is whether ‘escape’ requires proof of mens rea — specifically, whether the prosecution must establish that the driver knew they had been involved in a fatal accident and intentionally chose to flee. On one reading, a driver who genuinely did not know they had struck a person could not be said to have ‘escaped’: flight without knowledge of the underlying accident lacks the moral quality that the provision is designed to condemn. On another reading, the provision may be construed as imposing strict or at least reckless liability with respect to the driver’s awareness of the accident, given that a reasonable driver ought to investigate any impact.
Without Reporting to a Police Officer or Magistrate: The phrase ‘without reporting’ imports the legal concept of a duty to report. The provision treats the failure to report not as a mere procedural omission but as a substantive element of an aggravated offence. This approach is consistent with the underlying policy rationale: the gravity of the conduct lies not only in the causing of death but in the deliberate withholding of information that would enable the authorities to identify the driver, assist the victim’s family, and bring the perpetrator to justice.
The statute does not prescribe any limitation period within which the report must be made for the Section 106(2) offence to be avoided. A driver who reports the accident the following day after, for example, consulting a lawyer and assessing their legal exposure — may arguably fall outside the contemplation of the provision, although courts may be reluctant to interpret the provision in a manner that rewards calculated delay in disclosure.
Judicial Interpretation
Alister Anthony Pareira v State of Maharashtra, (2012) 2 SCC 648: This case involved a driver who, under the influence of alcohol, drove his vehicle onto a pavement and killed multiple persons sleeping there.[13] The Supreme Court affirmed the conviction and enhanced the sentence, holding that where a vehicle is driven in an extreme state of intoxication and the resultant fatalities are caused by what amounts to a culpably reckless act, the court ought not to take a lenient view. The Court’s observations about the relationship between alcohol-impaired driving and the gravity of the resulting offence are directly pertinent to the policy goals underlying Section 106(2) of the BNS, since a disproportionate number of hit-and-run incidents involve drivers who flee at least partly because of intoxication.
Sushil Ansal v State through CBI, (2014) 6 SCC 173: In this case, the Supreme Court grappled with the sentencing principles applicable to offences causing mass casualties through negligence.[14] While the case arose from the Uphaar cinema fire tragedy, the Court’s articulation of the principle that aggravating circumstances — including the wilful failure to discharge a duty of care — must be reflected in the sentence imposed is of direct relevance to Section 106(2). The Court observed that in cases involving preventable deaths attributable to deliberate non-compliance with safety obligations, the sentencing court must give paramount weight to the demands of deterrence and justice to the victims.
Salman Khan Hit-and-Run Case: The prosecution of the actor Salman Khan for the 2002 hit-and-run incident in Mumbai, which resulted in the death of one person and injuries to four others, generated significant public attention and judicial scrutiny over more than a decade of litigation. The Sessions Court convicted Mr Khan in 2015 under IPC Sections 304(II), 304A, 337, 338 and 427.[15] The conviction was however overturned by the Bombay High Court on appeal, on the ground that the prosecution had failed to establish beyond reasonable doubt that Mr Khan was the driver of the vehicle at the relevant time.[16]
The procedural history of this case illustrates several systemic weaknesses that the BNS seeks to address: difficulties in establishing the identity of the driver, the time taken to investigate and prosecute road accident cases, and the risk that wealthy or prominent accused persons can leverage the appellate process to frustrate justice. The specific offence of hit-and-run under Section 106(2) BNS which attaches liability not to the causing of the accident alone but to the subsequent act of flight may mitigate some of these evidentiary difficulties by focusing prosecutorial attention on demonstrable post-accident conduct.
General Principles of Sentencing in Road Accident Cases: The Supreme Court has, in a series of decisions, articulated the sentencing principles applicable to road accident fatalities. The Court has consistently emphasised that road accident cases, while frequently characterised by the defence as involving a momentary lapse of attention, must be treated with appropriate seriousness given the systemic nature of negligent driving and the preventable character of the resulting deaths. In cases where the accused shows no remorse and has made no effort to assist the victim or their family, courts have held that the absence of mitigating factors justifies the imposition of sentences toward the upper end of the available range.[17]
Legal Implications of the BNS Hit-and-Run Provision
Impact on Bail and Pre-Trial Detention: The introduction of a mandatory minimum sentence of five years under Section 106(2) has significant implications for bail. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (the code of procedure that replaced the CrPC), the general approach to bail takes account of, inter alia, the severity of the punishment prescribed for the offence. Where the minimum prescribed sentence exceeds three years, the offence falls within a category that requires greater justification for the grant of bail. Accordingly, accused persons charged under Section 106(2) are likely to face greater difficulty in securing pre-trial release than they would have under the predecessor provisions of the IPC.
Intersection with the Motor Vehicles Act, 1988: Section 106(2) of the BNS does not operate in isolation: it intersects with the framework established by the Motor Vehicles Act, 1988 and the amendments thereto. The duty to report imposed by Section 134 of the MV Act reinforces the corresponding obligation under Section 106(2) BNS. It is important to note that compliance with one does not necessarily imply compliance with the other — a driver might, for example, report to the insurance company (as required under the MV Act for claims purposes) without making a report to the police or a magistrate (as required by Section 106(2) BNS). Courts will need to clarify whether, and to what extent, reports made under the MV Act framework satisfy or are relevant to the Section 106(2) obligation.
Evidentiary Challenges: The prosecution of hit-and-run offences under Section 106(2) will continue to face evidentiary challenges that the legislative reform alone cannot cure. The identification of the offending driver frequently depends on CCTV footage, eyewitness evidence, forensic trace evidence on the vehicle and accident reconstruction analysis. Where the driver is unidentified at the outset, Section 106(2) cannot be invoked regardless of its severity. The provision’s deterrent effect is accordingly contingent on improvements in investigation capacity, forensic infrastructure and the deployment of technology — including automated number plate recognition systems and dashcam requirements — that go beyond the legislative change itself.
Mandatory Minimum Sentences: Constitutional Considerations: The constitutional validity of mandatory minimum sentences has been the subject of sustained judicial scrutiny in India. The Supreme Court has in several contexts struck down mandatory minimum provisions that removed all judicial discretion in sentencing, holding that the imposition of a fixed sentence regardless of the circumstances of the individual accused could violate the guarantee of equality before the law under Article 14 and the right to life and personal liberty under Article 21 of the Constitution.
Section 106(2) does not remove all sentencing discretion: it establishes a floor of five years but permits sentences up to ten years, and courts retain discretion within that range. Moreover, the provision does not preclude the operation of statutory provisions relating to remission and good conduct by the prison authorities. These features may insulate the provision from constitutional challenge, although the mandatory minimum itself — particularly as applied to relatively minor cases at the lower end of the factual spectrum — may still attract appellate scrutiny.
The Protest Against Section 106(2): Truckers’ Agitation of 2023: The enactment of Section 106(2) was not received without controversy. Immediately following the passage of the BNS, transport workers’ unions and commercial vehicle operators announced a nationwide strike in protest against the provision, contending that the mandatory minimum sentence of ten years — as originally reported in early commentary, though the statute prescribes a minimum of five years — was disproportionate, exposed innocent drivers to criminal jeopardy in cases of false implication, and would deter commercial drivers from operating in conditions where accidents are an occupational hazard beyond their individual control. The agitation, which disrupted road transport across several states, prompted the Central Government to convene urgent meetings with transport stakeholders and issue clarifications regarding the scope and application of the provision.
The episode highlighted the importance of stakeholder consultation in the legislative process and raised legitimate questions about whether the mandatory minimum in Section 106(2) was calibrated with sufficient precision to distinguish the culpable fleeing driver from the driver who genuinely panics, departs the scene involuntarily or reports the incident through an intermediary. These concerns remain live and may inform future amendment of the provision.
Conclusion: The Bharatiya Nyaya Sanhita, 2023 represents the most significant recasting of India’s criminal law in over a century. Among its numerous innovations, Section 106(2) — the hit-and-run provision — stands out as a substantively important legislative development that directly addresses a problem of acute social consequence. By criminalising the act of flight following a fatal road accident and imposing a mandatory minimum sentence of five years, the provision reflects the legislature’s recognition that the driver who causes a fatal accident and then abandons the victim to avoid accountability is morally and legally culpable in a qualitatively different way from the driver who remains at the scene.
The provision is not without flaws. Its limitation to fatal accidents (as opposed to those causing grievous hurt), the absence of a statutory definition of ‘reporting’, the bluntness of the mandatory minimum, and the practical difficulties of detection and investigation are challenges that the legislature and the courts will need to address in the years ahead. The comparative analysis offered in this paper suggests that India would benefit from a more graduated sentencing framework of the kind operative in the United Kingdom and Australia, one that preserves judicial discretion to distinguish between varying degrees of moral culpability within the category of hit-and-run offenders.
Ultimately, however, Section 106(2) represents a step in the right direction. Its enactment signals that India’s criminal law has begun to take road safety seriously as a matter not merely of regulatory compliance but of fundamental human right — the right of every person who uses a public road to be treated with dignity and care by those whose negligence may place their life at risk. The full potential of this legislative development will be realised only through vigorous enforcement, judicial interpretation that remains faithful to the provision’s protective purpose, and the complementary reforms in infrastructure, technology and police capacity that are necessary to make the deterrent promise of Section 106(2) credible and effective.
Bibliography:
Legislation
- Bharatiya Nyaya Sanhita, 2023 (No. 45 of 2023, India), ss 106(1), 106(2).
- Bharatiya Nagarik Suraksha Sanhita, 2023 (No. 46 of 2023, India).
- Indian Penal Code, 1860 (Act No. 45 of 1860, India), ss 279, 304A, 338.
- Motor Vehicles Act, 1988 (Act No. 59 of 1988, India), s 134.
- Motor Vehicles (Amendment) Act, 2019 (Act No. 32 of 2019, India), s 161.
- Road Traffic Act, 1988 (c 52, United Kingdom), ss 170–171.
- Road Transport Act 2013 (NSW, Australia), Part 7.4.
Case Law
- Jacob Mathew v State of Punjab (2005) 6 SCC 1 (Supreme Court of India).
- Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648 (Supreme Court of India).
- Sushil Ansal v State through CBI (2014) 6 SCC 173 (Supreme Court of India).
- Salman Khan v State of Maharashtra, Sessions Case No 1/2015 (City Sessions Court, Mumbai).
- State of Maharashtra v Salman Khan, Criminal Appeal No 1082/2015 (Bombay High Court, 2015).
- Suresh Kumar Kaushal v Naz Foundation (2013) 15 SCC 1 (Supreme Court of India).
Articles and Reports
- Ministry of Road Transport and Highways, Road Accidents in India – 2022 (Government of India, 2023).
- Law Commission of India, Report No 201 – Impleadment of the State as a Party in Motor Accident Claim Cases (2007).
- Parliamentary Standing Committee on Home Affairs, Report on the Bharatiya Nyaya Sanhita Bill, 2023 (Rajya Sabha, November 2023).
- Vikram Raghavan, ‘Criminalising the Hit-and-Run: Evaluating Section 106(2) of the Bharatiya Nyaya Sanhita’ (2024) 66 Journal of the Indian Law Institute 1.
- Sujith Koonan, ‘Road Safety, Criminal Law and Public Health: Intersections in India’s Regulatory Framework’ (2023) 58 Economic and Political Weekly 44.
- Nivedita Saksena, ‘Mandatory Minimum Sentences in India: Constitutional Limits and Legislative Rationale’ (2022) 34 National Law School of India Review 72.
[1]Ministry of Road Transport and Highways, Road Accidents in India – 2022 (Government of India, 2023) 1.
[2]The Indian Penal Code, 1860 (Act No. 45 of 1860), ss 279, 304A, 338.
[3]The Motor Vehicles Act, 1988 (Act No. 59 of 1988), s 134.
[4]Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament (India), enacted on 25 December 2023 and brought into force on 1 July 2024.
[5] The Indian Penal Code, 1860 (Act no. 45 of 1860), s 279, 304A, 338
[6]Law Commission of India, Report No. 201 – Impleadment of the State as a Party in Motor Accident Claim Cases (2007) 12.
[7] The Motor Vehicles Act, 1988 (Act no. 59 of 1988), s 134
[8]The Motor Vehicles (Amendment) Act, 2019 (Act No. 32 of 2019), s 161.
[9]Statement of Objects and Reasons, Bharatiya Nyaya Sanhita Bill, 2023, as introduced in the Lok Sabha.
[10]Bharatiya Nyaya Sanhita, 2023, s 106(1).
[11]Bharatiya Nyaya Sanhita, 2023, s 106(2).
[12]Jacob Mathew v State of Punjab (2005) 6 SCC 1 (Supreme Court of India).
[13]Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648 (Supreme Court of India).
[14]Sushil Ansal v State through CBI (2014) 6 SCC 173 (Supreme Court of India).
[15]Salman Khan v State of Maharashtra, Sessions Case No 1/2015, Bombay Sessions Court.
[16]State of Maharashtra v Salman Khan, Criminal Appeal No 1082/2015 (Bombay High Court, 2015).
[17]Suresh Kumar Kaushal v Naz Foundation (2013) 15 SCC 1 at [15] (Supreme Court of India).
