The Gauhati High Court, in Ritumani Deka v. Union of India & Ors. (PIL/74/2024), addressed the improper registration of cases under Section 106(2) of the Bharatiya Nyaya Sanhita (BNS), 2023, a provision that has not yet been brought into force. A Division Bench comprising Chief Justice Vijay Bishnoi and Justice Kaushik Goswami directed the Director General of Police (DGP), Assam, to issue instructions to police stations under his jurisdiction to refrain from registering cases under this provision. The Court observed that registering FIRs under a provision that is not yet enforceable violates legal principles and fundamental rights.

The petitioner, Ritumani Deka, filed a Public Interest Litigation (PIL) challenging the constitutional validity of Section 106(2) of the BNS, arguing that it violates Article 20(3) of the Indian Constitution. Section 106(2) prescribes punishment for causing death by rash and negligent driving, coupled with a failure to report the incident to a police officer or magistrate. The provision states, “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 for a term which may extend to ten years, and shall also be liable to fine.”

The petitioner argued that this provision compelled an accused person to report the incident, effectively forcing self-incrimination, which is prohibited under Article 20(3). The constitutional safeguard ensures that no person accused of an offence shall be compelled to be a witness against themselves. The petitioner also brought to the Court's attention that, as per a notification dated February 23, 2024, issued by the Government of India, most provisions of the BNS came into effect on July 1, 2024, but Section 106(2) was explicitly excluded from this enforcement timeline.

Despite this, the petitioner presented evidence of FIRs being registered under this provision, including a case filed by Mukalmua Police Station in Nalbari District on September 2, 2024. This, the petitioner argued, represented a clear misuse of a non-enforceable legal provision.

The High Court carefully examined the petitioner’s claims and the notification governing the BNS. The Court unequivocally noted that Section 106(2) had not been brought into force. Referring to the notification, the Bench observed, “From the above notification, it is clear that the provision of sub-section (2) of Section 106 of the BNS has not come into force till date.”

On the petitioner’s broader constitutional challenge to Section 106(2), the Court stated, “In such circumstances, the challenge of the petitioner to the provision of sub-section (2) of Section 106 of the BNS is premature, and therefore, the question of granting the relief, as prayed for in the writ petition, by declaring the provision of sub-section (2) of Section 106 of the BNS as unconstitutional, the same being violative of Article 20(3) of the Constitution of India, does not arise.”

The Court acknowledged that registering FIRs under a non-operative provision was a procedural and legal anomaly. It stated, “If the police is registering cases under sub-section (2) of Section 106 of the BNS, though it has not come into force till date, the individual person against whom any such FIR is filed is free to avail appropriate remedy available to him by approaching the competent court of law.”

To address the misuse of Section 106(2), the Bench directed the DGP, Assam, to take immediate action. The Court emphasized, “The Director General of Police, Assam, should take note of this fact and issue necessary direction to the police stations under his jurisdiction not to register any case under the provision of sub-section (2) of Section 106 of the BNS, 2023, which has not come into force till date.”

The Court also granted the petitioner liberty to provide a copy of the order to the DGP to ensure compliance. It remarked, “The petitioner is at liberty to place a copy of this order before the Director General of Police, Assam.”

The Court concluded, “This PIL petition is disposed of with the above observations and directions.”

Case Title: Ritumani Deka v. The Union of India & Ors.

Case No.: PIL/74/2024

Bench: Chief Justice Vijay Bishnoi and Justice Kaushik Goswami.