The Need of Amendment in 304-a of Indian Penal Code

THE NEED OF AMENDMENT IN 304 –A OF INDIAN PENAL CODE
By R. VINOBA SELVANDURAI, GUEST LECTURER, GOVERNMENT LAW COLLEGE, THIRUNELVELI
The dawn of third millennium has seen many ups and downs in human relations. There have been many turbulent changes in the society. This has not spared even doctor-patient relationship. The rapid changes in the medical field have strained the age-old good relations between the patient and the treating physician or surgeon.
Criminal law is applicable to all individuals and doctors are no exception to it. As far as medical practice is concerned patients or relatives usually don’t approach the police. But now-a-days this scenario is also changing. In last few decades as doctor patient relationship has deteriorated, the complaints against doctors have increased (1). According to the provisions of Indian Penal Code 1860 (IPC), any act of commission or omission is not a crime unless it is accompanied by a guilty mind (MENS REA). The acts are not punishable only because it led to some mischievous results unless associated with intention or mental attitude of the person. Most of the times doctors treatment is in good faith, with the consent of the patient and hence most of the provisions of IPC are not applicable to the doctors unless or until there is rashness or gross negligence. The following Sections of IPC are related to medical profession (2):
Sec. 304-A Deals with death caused by a negligent act.
Sec. 336-338 Deals with causing hurt by rash or negligent act.
Section 304 and 304-A
There is lot of discrepancy while applying these sections in cases of professional negligence by doctors and drivers. Most of the times, the police authorities register cases of professional negligence deaths under Sec 304 of IPC. According to this Section the offence is non-bailable. This causes lot of hardship, bad reputation and mental agony to the doctors. In fact the police should register the cases of deaths due to medical negligence under Sec. 304-A of IPC, in which the offence is bailable and the doctor can be released on bail. This judgment has been passed by Bombay High Court in Criminal Revision application no. 282 of 1996 (Dr. Mrs. Mrudula S. Deshpande vs State of Maharashtra) dated 28th November 1998(3). The basic difference is that in Sec. 304 there is intentional act of negligence while in 304-A the act is never done with the intention to cause death.
In the case of Prabha Karan vs. State of Kerala; AIR 2007 SC 2376, Ratan Singh vs. State of Punjab; 1979 A.Cr.R. 484 (SC), Satnam Singh vs. State of Rajasthan; (2001) 1 SCC 662 & State of Karnataka vs. Sharanappa Basnagouda; 2002 (45) ACC 39 (SC), the Supreme Court has held that where a life has been lost due to the rash and negligent act of the accused, no compassion or leniency U/s. 304-A IPC can be shown and two years imprisonment should be awarded to the accused..
In Prabaharan Vs State of Kerala in the 2007 the honourable Supreme Court decided that
Voicing serious concern over the number of road accidents in the country, the Supreme Court has favoured amending the law suitably for enhancing the punishment for reckless driving. But, since under the present IPC provision of Section 304A, the maximum sentence is two years, no higher punishment can be imposed on an offender, a Bench of Justices Arijit Pasayat and D K Jain ruled while reducing to two years, the five years rigorous imprisonment awarded to a bus driver. The driver, Prabhakaran, was charged with reckless driving resulting in the death of a school boy. Quoting statistics, SC said out of the 1.2 million people killed in road accidents across the world, India accounts for 59,927 deaths. "In addition to the devastating human toll, the economic impact of road crashes is also enormous, Many of those injured or killed are wage earners, leaving their families destitute and without means of support," SC said.

The Bench made the observation while holding Prabhakaran. Guilty under Section 304 A (causing death due to rash & negligent action) as against Section 304 II (culpable homicide not amounting to murder) imposed by a sessions court in Kerala While under Section 304 A, the maximum sentence is two years RI, under Section 304 the punishment could extend up to 10 years. "There is substance in this submission considering the increasing number of vehicular accidents resulting in death of large number of innocent persons," the Bench said. "It is for the legislature to provide for an appropriate sentence. But the statute presently provides for a maximum sentence of two years," the Bench said. According to the prosecution, Prabhakaran drove the bus in a rash and reckless manner despite being cautioned by passengers and the vehicle ran over a 10-year-old boy.

SC said that Prabhakaran should have been convicted only under Section 304 A. However, it agreed that maximum imprisonment of two years was insufficient.
News in Times of India dt 23.08.2009 The Law Commission has framed a set of drastic recommendations to deal with rash and negligent driving, including that the punishment be raised from two years to a 10-year term and denial of bail. The Commission has suggested an amendment to Section 304A of the Indian Penal Code which at present pegs the maximum punishment for anyone causing death by rash and negligent driving at two years. "Keeping in view the present day practical reality, the punishment should be increased to 10 years imprisonment," the law panel said in its 234th report. Importantly, it said the offence should be made non-bailable, which means the police would have no power to release on bail a person accused of causing death by rash and negligent driving. The report, submitted by Law Commission's chairperson Justice AR Lakshmanan to law minister Veerappa Moily, seeks to alter the legal regime for rash and negligent driving in a radical way. What weighed on the minds of the Law Commission was the website data of 1 lakh deaths due to road accidents in India every year. It also quoted the website of a leading automobile major to say that "more than a million people are injured or maimed" and "road accidents cost the country some Rs 550 billion every year". Besides, the panel took into account accidents caused by drunk driving and said: "Causing death of any person through driving under the influence of alcohol or drugs should be punishable with a minimum imprisonment of two years." It said road and transport being state subjects, there had been no uniformity in the law and punishment across the country. "There is no comprehensive central legislation to effectively and holistically regulate all kinds of traffic on the roads," it said.

"The Seventh Schedule of the Constitution will be required to be amended for such a comprehensive central legislation. The Law Commission feels that there is a need of a comprehensive Central road traffic law," it said.

Regarding enforcement, it recommended installation of close circuit TV cameras at all vulnerable points to curb unruly traffic and suggested that weigh-bridges be installed at border points to deter overloaded transport vehicles from entering a state. Hence the country needs an amendment in the existing acts or enactment of new laws applicable to the present situation.