Section 304A IPC vs Section 106 BNS — Causing Death by Negligence (and the Hit-and-Run Sub-section)

In India, Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaces Section 304A of the Indian Penal Code, 1860 (IPC) from 1 July 2024. The maximum rises from two to five years, with fine; registered medical practitioners performing a medical procedure keep a two-year cap. The hit-and-run offence in s.106(2) was excepted from that commencement.

At a glance

What changed

• Minor edit — "Whoever causes the death of any person" → "Whoever causes death of any person".
• Identical — The offence words: "by doing any rash or negligent act not amounting to culpable homicide".
• Modified — Maximum term: "may extend to two years" → "may extend to five years".
• Modified — Fine: "or with fine, or with both" → "and shall also be liable to fine". The IPC allowed fine alone; on the BNS text imprisonment is prescribed and the offender is also liable to fine.
• New — The medical-practitioner limb: "and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine". This is a clause of s.106(1) joined by "; and", not a proviso.
• New — The Explanation defining "registered medical practitioner": a practitioner with a qualification recognised under the National Medical Commission Act, 2019, whose name is on the National Medical Register or a State Medical Register under that Act.
• New — Sub-section (2), hit-and-run: rash and negligent driving of a vehicle, death not amounting to culpable homicide, and escape without reporting to a police officer or Magistrate "soon after the incident". Up to ten years and fine. The Gazette text reads "imprisonment of either description of a term", where s.106(1) says "for a term".
• New — Commencement split. The BNS came into force on 1 July 2024 "except the provision of sub-section (2) of section 106". BNS s.1(2) allows different dates for different provisions.
• Modified — Classification: bailable (s.106(1)), as under the CrPC for s.304A; a new non-bailable entry for s.106(2).

Statutory text (relevant extract)

IPC s.304A (original text) — inserted by Act 27 of 1870, s. 12

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.

BNS s.106 (Gazette text)

(1) Whoever causes 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 fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

(2) 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.

Commencement footnote (official BNS text, footnote 1 to s.1) — "1st July, 2024, except the provision of sub-section (2) of section 106, vide notification No. S.O. 850(E), dated, 23rd day of February, 2024".

How it works — ingredients

Section 106(1), general limb

1. Death of a person caused by the accused's act.
2. A rash or negligent act — "or", so either suffices on the text. Jacob Mathew (below) held that, for criminal liability, the negligence must be "gross".
3. Not amounting to culpable homicide — no intention to cause death or likely-fatal injury, and no knowledge that death is likely (BNS s.100). If any of those is proved, the case belongs under s.105 or s.103, not s.106.
4. Causal link — Jacob Mathew quoted earlier case law for the rule that the death must be the direct result of the act, which must be its "proximate and efficient cause".

Section 106(1), medical-practitioner limb. The same four elements, plus: the accused is a "registered medical practitioner" within the Explanation, and the act was done "while performing medical procedure". The limb changes the maximum sentence (two years), not the definition of the offence. On a reading of the text, a practitioner's act outside the performance of a medical procedure falls under the general five-year limb.

Section 106(2), hit-and-run (excepted from the 1 July 2024 commencement by S.O. 850(E); no later notification recorded in the official text)

1. Death caused by driving of a vehicle that was rash and negligent — s.106(2) says "and" where s.106(1) says "or";
2. not amounting to culpable homicide;
3. the driver escapes; and
4. without reporting it to a police officer or a Magistrate soon after the incident.

On a reading of the text, unless and until s.106(2) is brought into force by notification, a death caused by rash or negligent driving falls under s.106(1), and escape, if proved, is relevant to the facts but does not engage s.106(2).

Neighbouring provisions:

What this means in practice

For the family of the deceased. The offence is cognizable, so the police register an FIR under BNSS s.173. At sentencing, BNSS s.395(1)(c) lets the court apply any fine to compensate persons entitled under the Fatal Accidents Act, 1855. Where fine is not part of the sentence, s.395(3) allows a separate compensation order.

For the accused. Section 106(1) is bailable, so bail is a right under BNSS s.478, as it was for IPC s.304A. The trial is before a Magistrate of the first class. The sentencing exposure is now five years, not two. Dalbir Singh (below) held that release on probation under s.4 of the Probation of Offenders Act, 1958 should not be granted for rash or negligent driving deaths under s.304A. On a reading, the same reasoning bears on s.106(1), which repeats the offence words.

For doctors and hospitals. The two-year cap applies only to a registered practitioner "while performing medical procedure". Jacob Mathew framed guidelines for prosecuting doctors: a private complaint should be supported by a credible opinion from another competent doctor, the investigating officer should obtain an independent medical opinion, and arrest should not be routine. They were framed for s.304A IPC, and the Court said they would govern until statutory rules or executive instructions were issued. On a reading, they bear on s.106(1), whose operative words are the same.

For investigating officers in road deaths. Record facts that separate s.106(1) from s.105: speed, intoxication, the place (a pavement or a crowded road), and what the driver knew. Alister Anthony Pareira (below) turned on those facts. Record whether and when the driver reported the incident. Do not charge s.106(2) unless its commencement has been verified in the Gazette.

Judgments that still matter

The offence words of s.106(1) — "rash or negligent act not amounting to culpable homicide" — repeat s.304A. On a reading of the text, the Supreme Court's construction of those words remains relevant. No Supreme Court judgment applying BNS s.106 was read for this page.

Jacob Mathew v. State of Punjab, [2005] Supp. 2 S.C.R. 307 (2005 INSC 334) — 5 August 2005; R.C. Lahoti CJ, G.P. Mathur and P.K. Balasubramanyan JJ; judgment by Lahoti CJ. A patient died in hospital; the complaint concerned the non-availability of an oxygen cylinder, and the appellant doctor was prosecuted under s.304A read with s.34. The Court held that negligence in criminal law differs from negligence in civil law. "The word 'gross' has not been used in Section 304A of IPC", yet for criminal liability negligence must be "gross or of a very high degree", and the expression "rash or negligent act" "has to be read as qualified by the word 'grossly'" (conclusions (5)–(6); report pp. 332, 339). It laid down the prosecution guidelines summarised above and quashed the prosecution. Why it matters: s.106(1) carries the same words, and its new medical-practitioner limb makes the medical case explicit in the statute.

Alister Anthony Pareira v. State of Maharashtra, [2012] 1 S.C.R. 145 (2012 INSC 18) — 12 January 2012; R.M. Lodha and Jagadish Singh Khehar JJ; judgment by Lodha J. The Court said s.304A applies to deaths caused "neither intentionally nor with the knowledge" that the act is likely to cause death. It requires (1) death of a human being, (2) caused by the accused, (3) by a rash or negligent act not amounting to culpable homicide (para 37). Rash or negligent driving done with knowledge of its likely dangerous consequences may be punishable under s.304 Part II instead (para 40). Upholding the Part II conviction for a car that killed seven people on a pavement, it added: "It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC" (para 78). Why it matters: it marks the line between s.106(1) and the knowledge limb of s.105. This page records the observation and s.106's higher ceiling side by side; it draws no link between them.

Dalbir Singh v. State of Haryana, [2000] 3 S.C.R. 1000 (2000 INSC 284) — 4 May 2000; K.T. Thomas and Doraiswamy Raju JJ; judgment by Thomas J. A bus driver who crushed a cyclist to death was convicted under ss.279 and 304A. The Court refused him probation under s.4 of the Probation of Offenders Act, 1958. It held that "criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4", and that in sentencing for death by rash or negligent driving "one of the prime considerations should be deterrence" (report p. 1005). Why it matters: on a reading, its sentencing reasoning bears on the same offence under s.106(1).

Which law applies to your case

Section 358(2) BNS provides that the repeal of the IPC does not affect penalties or punishments incurred for offences committed against it, and that proceedings may continue "as if that Code had not been repealed". Article 20(1) of the Constitution bars a heavier penalty than the law in force when the offence was committed. On a reading of those provisions, a negligent death before 1 July 2024 is dealt with under IPC s.304A, with its two-year maximum, and s.106(1) governs acts on or after that date. Section 531(2)(a) BNSS keeps pending trials under the CrPC. See Offence before 1 July 2024 — which law applies.

Frequently asked questions

What is the BNS equivalent of Section 304A IPC? Section 106(1) of the Bharatiya Nyaya Sanhita, 2023. It uses the same offence words (causing death by a rash or negligent act not amounting to culpable homicide) but raises the maximum imprisonment from two years to five years and makes the offender also liable to fine. It is cognizable, bailable and triable by a Magistrate of the first class.

Are doctors treated differently under BNS Section 106? Yes, on sentence only. If the rash or negligent act is done by a registered medical practitioner while performing a medical procedure, BNS Section 106(1) caps imprisonment at two years, with liability to fine. The Explanation defines a registered medical practitioner by reference to the National Medical Commission Act, 2019 and the National or a State Medical Register. The offence itself is the same.

Is the hit-and-run provision in BNS Section 106(2) in force? Footnote 1 to Section 1 of the official BNS text records that the Sanhita came into force on 1 July 2024 except sub-section (2) of section 106, under notification S.O. 850(E) dated 23 February 2024. The official text records no later notification bringing Section 106(2) into force. This page does not state that it is in force; check the Gazette before relying on it.

What does BNS Section 106(2) require? Section 106(2) applies where a person causes death by rash and negligent driving of a vehicle, not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident. The punishment is imprisonment of either description up to ten years and fine; the BNSS First Schedule lists it as cognizable, non-bailable and triable by a Magistrate of the first class.

When is a death caused by driving culpable homicide instead of death by negligence? Section 106 applies only to acts not amounting to culpable homicide. In Alister Anthony Pareira (2012) the Supreme Court held that rash or negligent driving with knowledge of its likely dangerous effect may be culpable homicide not amounting to murder under Section 304 Part II IPC, now the knowledge limb of BNS Section 105, which carries up to ten years and fine.

Is death by negligence bailable? BNS Section 106(1) is bailable under the BNSS First Schedule, as IPC Section 304A was under the CrPC First Schedule, so bail is available as of right under BNSS Section 478. Section 106(2) is listed as non-bailable, so bail under it would be discretionary under Section 480.

Which law applies to a death caused before 1 July 2024? BNS Section 358(2) keeps penalties incurred under the repealed IPC and lets proceedings continue as if the IPC had not been repealed, and Article 20(1) of the Constitution bars a heavier penalty than the law in force when the act was done. On a reading of those provisions, a negligent death before 1 July 2024 is dealt with under IPC Section 304A, with its two-year maximum.

Related

• Fatal road accident and hit-and-run — BNS 106 vs IPC 304A
• Punishment for culpable homicide not amounting to murder — IPC 304 vs BNS 105
• When a killing is culpable homicide not amounting to murder
• Bail provisions — old vs new
• Offence before 1 July 2024 — which law applies

Sources

Acts and sections read (primary text):

• Bharatiya Nyaya Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250883): ss.1(2) with the S.O. 850(E) commencement footnote in the official text, 100, 105, 106, 125, 281, 358.
• Indian Penal Code, 1860 (original text): ss.279, 304A (with the Act 27 of 1870 footnote), 336–338 headings.
• Bharatiya Nagarik Suraksha Sanhita, 2023: ss.173, 395, 478, 480, 531(2)(a); First Schedule entries for BNS s.106(1) and (2).
• Code of Criminal Procedure, 1973: First Schedule entry for IPC s.304A.
• Constitution of India: Article 20(1).

Judgments read (Supreme Court, judgment text):

• Jacob Mathew v. State of Punjab, [2005] Supp. 2 S.C.R. 307 — corpus file S_2005_2_307_341_EN.md.
• Alister Anthony Pareira v. State of Maharashtra, [2012] 1 S.C.R. 145 — corpus file 2012_1_145_194_EN.md.
• Dalbir Singh v. State of Haryana, [2000] 3 S.C.R. 1000 — corpus file 2000_3_1000_1006_EN.md.

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.