Before deliberating on the subject, it would be trite to reproduce Section 279 of The Indian Penal Code, which reads thus:

279. Rash driving or riding on a public way:
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im­prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

It is relevant that in a recent judgment in Criminal Appeal No. 1238 of 2012 in the case of The State of Maharashtra vs. Kuldeep Subhash Pawar decided on 3rd March, 2023, the Bombay High Court has ruled that driving at high speeds alone does not constitute offence of rash and negligent driving under Section 279 IPC.

The brief facts of the case are that the accused was driving a Tata Sumo vehicle and dashed into a bullock cart and a bicycle which resulted in the death of the cyclist as well as the bullock. The driver was prosecuted under Section 279 of IPC. The trial Court acquitted the accused against which the State filed an appeal before the Bombay High Court.

The Bombay High Court dismissing the appeal of the state held that the offence of rash and negligent driving under Section 279 must satisfy both the components of rashness and negligence. The Court held thus:

Act of the driving is punishable only when it is rash and negligence. Rashness implies the speed which is unwarranted. Whereas act of the negligence involves not taking proper care and attention while driving.

Resultantly, the Court upheld the acquittal of a man who had been charged with causing the deaths of a cyclist and a bullock after the car he was driving hit them.

The Court, with due respect, missed that according to the plain reading of the section 279 IPC, it is applicable when someone drives any vehicle, or rides, on any public way in a manner so rash OR negligent as to endanger human life, or to be likely to cause hurt or injury to any other person. The phrase used in the said section 279 is 'so rash or negligent' and not rash and negligent. Thus both components of rashness and negligence are not required to co-exist, as appears to have been erroneously held by the High Court, but rashness or negligence is alone required to be established for invoking Section 279 of the IPC.

In the instant case the accused bangs into a bullock and cycle with his Sumo car because of over-speeding resulting in the death of both the cyclist and the bullock. Such an act falls unambiguously in the ambit of the term 'rash or negligent' driving.

Let us understand what is the legal connotation of terms 'Rash Driving' and 'Negligent Driving'. There are speed restrictions on all National & Regional Highways after the Government conducts study of various factors. There are also speed controls/limits inside the city looking to the population size, number of commuters, condition of roads and traffic hazards. The speed limits are mandated after scientific study and keeping in mind road safety norms and requirements. The moment a driver over speed the limits mandated, his driving becomes 'Rash' and he becomes liable to prosecution not only under section 279 of the IPC but also under section 183 of the Motor Vehicles Act.

Section 183 in The Motor Vehicles Act, 1988 is reproduced as under:
183. Driving at excessive speed, etc

1. Whoever drives a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to four hundred rupees, or, if having been previously convicted of an offence under this sub-section is again convicted of an offence under this sub-section, with fine which may extend to one thousand rupees.
    
2. Whoever causes any person who is employed by him or is subject to his control in driving to drive a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to three hundred rupees, or, if having been previously convicted of an offence under this sub-section, is again convicted of an offence under this sub-section, with fine which may extend to five hundred rupees.

It is noteworthy that the quantum of fines has been recently increased manifold by the Government in order to curb the increasing trend of over speeding.

In simple words, Rash Driving can be described as driving a vehicle without following the safety rules and violating the driving rules as mandated under The Motor Vehicles Act, 1988. Negligence is doing an act which a prudent or reasonable man would not do in the prevailing circumstances. A rash act is always a hurried negligent act done impetuously. Thus, the phrases ‘rash’ or ‘negligent’ are fairly similar & complimentary but they are distinct. In other words, negligence steps in the moment one is driving 'rash'.

The two ingredients of Section 279 IPC necessitates

• Driving or riding in a public way
• Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to self and to others.

Thus, in order to establish an offence punishable under Section 279 of the IPC, it must be proven that the accused was driving the vehicle on a public road in a rash and/or negligent way, threatening human life or likely to cause harm or injury to another person.

It would be apropos to refer to Empress of India v. Idu Beg (1881) ILR3ALL776 wherein criminal rashness and negligence was defined thus:

“Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it will cause injury but without the intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the willful and culpable neglect to take reasonable and proper care and precautions to avoid injury to the public in general or to an individual in particular, taking into account all of the circumstances surrounding the charge”

Thus rash driving implies that the driver was driving the vehicle at a reckless speed which was such that it endangered human life or was likely to cause harm or injury to another person. Over speeding is a crime even when the road is empty and there are no pedestrians or vehicles on the road. In State of Karnataka v Santanam 1998 CriLJ 3045, the Karnataka High Court awarded maximum punishment for being guilty of both rash and negligent driving and held thus:

In view of the fact that the respondent is totally careless and callous unmindful to rules of driving, even not to stop his vehicle after causing accidents despite he being a member from the disciplined force, I am of the view that he should be awarded the maximum punishment for the above offence he had committed under Section 279 of IPC and, therefore, I convict and sentence him for S.I. for six months and further for the fine of Rs. 1,000/- and in default to pay the said fine he shall suffer further S.I. for two months.

The maximum penalty for an offence committed u/s 279 IPC is six months imprisonment, a fine of up to 1000 rupees, or both. Although the penalty is meager but it is nothing but a deterrent to curb negligent & rash driving. The Apex Court in the case of Dalbir Singh v. State of Haryana 2000 (3) SCR 1000 discussed the scope of Section 279 IPC and held thus:

When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of derelication. One of the most effective ways of keeping such drivers under mental vigil is to maintain deterrent element in sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic.
...............
While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion.

He cannot and should not take a chance think that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court.

He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.

According to the court, one of the most efficient ways of keeping drivers under mental surveillance is to have a deterrent effect in the area of punishment. Any amount of freedom in that area would convince them to turn driving into a game. In State of Punjab v. Balwinder Singh (2012) 2 SCC 182, the Apex Court observed thus:

Considering the increased number of road accidents, this Court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act, 1958. We fully endorse the view expressed by this Court in Dalbir Singh (supra).

While considering the quantum of sentence to be imposed for the offence of causing death or injury by rash and negligent driving of automobiles, one of the prime considerations should be deterrence. The persons driving motor vehicles cannot and should not take a chance thinking that even if he is convicted he would be dealt with leniently by the Court. For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt.

It is relevant to refer to Sections 304A, 337 & 338 of the Indian Penal Code which read as under:

304A. 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.

337. Causing hurt by act endangering life or personal safety of others.—Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

Relation between Sections 279, 304A, 337 and 338 IPC
All the aforementioned sections of IPC deal with rash & negligent behaviour which may result in causing injury or death of a person. Section 279 of IPC is limited in application to rash driving or negligence resulting in the death or physical injury of self or other person as a result thereof. However, Sections 337 and 338 of the IPC deal with causing harm by an act endangering personal safety or the lives of others, as well as inflicting serious injuries by an act endangering personal safety or the lives of others.

As far as Section 304A of the IPC comes into operation when the rash or negligent act of a person results in the death of another person. Thus, Section 279 of the IPC applies exclusively to rash and negligent driving in public ways that endanger the lives of others whereas Sections 304A, 337 and 338 of IPC applies in case of death or physical harm to another person due to rash & negligent act of the person.

In a case of rash or negligent driving resulting in injury or death of another person, Section 279 and one of the Section 304A (causing death by negligence) Section 337 (causing hurt by act endangering life or personal safety of others) or Section 338 (causing grievous hurt by act endangering life or personal safety of others) can be conjunctly resorted to for punishing the accused.

It would be apropos to refer to the Apex Court judgment in Ravi Kapoor v. State of Rajasthan (2012) 9 SCC 284 wherein the Court held as under:

12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently.

Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to rash and negligent driving within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words manner so rash or negligent as to endanger human life. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.

13. Negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar consideration would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence.

14. The court has to adopt another parameter i.e. reasonable care in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

The discussion would be incomplete without referring to the Apex Court judgment in Alister Anthony Pareira vs State of Maharashtra 2012 (2) SCC 648 wherein the accused in a drunken state mowed down seven & injured eight hapless workers while sleeping on the footpath in Mumbai. The Court held that such an action of the accused falls within the scope of Section 304 part II and sentenced the accused. It would be relevant to reproduce Section 304 of the IPC, which reads as under:

304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

The Apex Court in Alister case (supra) dealt with Section 304- Part I & Part II and observed as under:

26. The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment.

For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is `culpable homicide not amounting to murder' - since Section 304 does not define this expression - Sections 299 and 300 IPC have to be seen. Section 299 IPC reads as under:

S.-299. - Culpable homicide.
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

The Apex Court dismissed the appeal of the accused and confirmed sentence, as awarded by the High Court, under sections 304 part II and sections 337 & section 338 of the Indian Penal Code and held thus:

'78. World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC.

79. The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime.

Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.

By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.

An important question that arises is whether the Section 279, 304A, 337 & 338 are sufficient to provide deterrence to mounting cases of injuries and deaths due to rash and negligent driving. The answer is a big 'NO'. It is opportune time for the Law Ministry/ Legislature to Revisit these provisions and make them stringent so as to induce deterrence.

The quantum of sentence and fiscal penalty should be increased manifold to reduce deaths, injuries and accidents on road caused due to rash, reckless driving and gross negligence. In-spite of directions of the Apex Court in Alister case (supra) to revisit section 304A of IPC, more than 10 years ago, nothing has been done so far.

The Legislature should make suitable amendments and mandate that FIR be mandatorily filed in cases of Deaths & Injuries caused due to rash & negligent driving also under section 304 Part II of the IPC or in the alternative the Legislature should legislate to increase the sentence and fiscal penalties under sections 279, 304A, 337 & 338 of IPC to put an effective end to rash & negligent driving and foster much needed safety on our roads.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]