Rash driving is charged under more than one statute, and the answer depends on which provision has been invoked. The first thing to do with a first information report or a notice is to read the sections, not the description.
The offences that describe the conduct
- Section 281 of the Bharatiya Nyaya Sanhita, 2023. 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 which may extend to six months, or with fine which may extend to one thousand rupees, or with both. For conduct before 1 July 2024, the earlier Penal Code and transitional rules need to be considered.
- Section 125 of the Sanhita. An act done so rashly or negligently as to endanger human life or the personal safety of others is punishable with imprisonment up to three months, or a fine up to two thousand five hundred rupees, or both, rising to six months or five thousand rupees where hurt is caused, and to three years or ten thousand rupees where grievous hurt is caused.
- Section 106(1) of the Sanhita. Causing the death of any person by a rash or negligent act not amounting to culpable homicide is punishable with imprisonment of either description which may extend to five years, and fine. That is the provision where a road accident has caused a death, and it is on a different scale from the two above.
- Section 184 of the Motor Vehicles Act, 1988. Driving dangerously, punishable for a first offence with imprisonment which may extend to one year but shall not be less than six months, or a fine of not less than one thousand and up to five thousand rupees, or both. Its Explanation lists jumping a red light, violating a stop sign, use of handheld communications devices while driving, unlawful overtaking and driving against the authorised flow of traffic.
The arrest powers
Section 202(1) of the Motor Vehicles Act provides that a police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under Section 184, Section 185 or Section 197. Section 202(2) permits arrest without warrant of a person who has committed an offence under the Act and refuses to give his name and address.
For the offences under the Sanhita, the general power is in Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Under Section 35(1)(a) a police officer may arrest without warrant a person who commits a cognizable offence in his presence. Under Section 35(1)(b), where the offence is cognizable and punishable with imprisonment which may be less than seven years or may extend to seven years, an arrest may be made only if the officer has reason to believe the person committed it and is satisfied that arrest is necessary on one of the listed grounds, which include preventing a further offence, proper investigation, preventing evidence from disappearing, and ensuring the person's presence in court. He shall record his reasons in writing while making the arrest, and a proviso requires reasons in writing for not arresting.
Section 35(3) requires the officer, in all cases where arrest is not required under sub-section (1), to issue a notice directing the person to appear before him or at the place specified, and sub-section (4) makes it that person's duty to comply. Sub-section (5) provides that where he complies and continues to comply, he shall not be arrested for the offence referred to in the notice unless, for reasons to be recorded, the officer is of the opinion that he ought to be. Sub-section (6) allows arrest where he fails to comply or is unwilling to identify himself. Compliance is your protection, and ignoring the notice removes it. What such a notice can and cannot require is set out in our guide on what a police notice under the new criminal procedure means.
How the classification decides the question
Whether the police may arrest without a warrant, and whether bail is a matter of right, follow from how the offence actually charged is classified in the First Schedule to the Sanhita. That is why the section numbers on the paper matter more than the label. A charge under Section 281 alone, with a maximum of six months, sits at one end. A charge under Section 106(1) after a fatal accident, with a maximum of five years, sits at the other.
What to do
- Get a copy of the first information. Section 173(2) of the Sanhita requires a copy of the information as recorded to be given forthwith and free of cost to the informant or the victim.
- Comply with any notice, in writing and on time. Section 35(5) protects the person who complies, and nothing else does.
- Do not treat the licence side as an afterthought. Section 206(4) requires seizure of the licence and its forwarding to the licensing authority for proceedings under Section 19 where the officer believes an offence under Section 184, among others, has been committed. That proceeding is mapped in our guide on drunk driving penalties and licence suspension.
- Keep the compensation case separate. A criminal charge and a claim before the Motor Accidents Claims Tribunal proceed on different standards and timetables, and the claim side is set out in our guide on motor accident compensation claims.
- Say nothing about the manner of driving until you have advice. Rashness and negligence are conclusions drawn from described facts, and a description offered to be helpful is the material from which the conclusion gets drawn.