Mumbai: The defence, during the hearing on Salman Khan’s bail plea in the high court, again questioned the validity of Section 304 Part II (culpable homicide not amounting to murder) of the IPC. The provision of this section was imposed for the first time in Maharashtra in the case of a motor vehicle accident and, that too involving the actor and the legal fraternity seems to be divided on the application of this section in cases of road accidents.

When The Asian Age spoke to retired Justice Palshikar V.G., he said, “It cannot be done.” He elaborated that he thinks so because the necessary ingredient in such cases is knowledge or intention. He said, “Even if a person is driving under the influence of alcohol, it does not make any difference. If a man is drunk and drives rashly and negligently and a man is not drunk and drives rash and negligently, the result is same.”

He further stated that a person driving recklessly has no intention but his act is so rash that it results in death, for which there is punishment of two years under section 304 A.

This categorisation, having been done whenever death occurs due to rash and negligence act, whatever the state of mind of the person committing the act may be, he is responsible for the death, said Justice Palshikar. “Here knowledge or intention is necessary, therefore, in most of the rash and negligence cases, to my knowledge, in 95 per cent cases the person causing death by rash and negligence act is prosecuted under 304 A,” he said.

However, former IPS officer and advocate Y.P. Singh has a different opinion. He said that this section should only be imposed in cases of deliberate drunken driving. “If a person is drunk and knowingly drives a vehicle in that state and he knows that he may not be able to control the vehicle, which may result in an accident that could cause death, then the accused should be charged with Section 304 Part II,” said advocate Singh. He also said that in Delhi’s Sanjeev Nanda case, the Supreme Court has made it clear that part two is required for an individual who is drunk and drives a car knowing it may cause somebody’s death. Otherwise people will start taking drunken driving lightly and that will result in more deaths.

Advocate Amin Solkar said that Section 304 Part II should not be imposed in cases of motor vehicle accidents. He said that whether a person is drunk or not does not make a difference because a person would not drive with knowledge that his vehicle would meet with an accident. In cases of such accidents, a person could be charged only with negligence.