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Difference between negligence in tort and criminal negligence under BNS (Bharatiya Nyaya Sanhita)

Updated: Feb 20

The term "criminal negligence" is not expressly defined in the Bharatiya Nyaya Sanhita, 2023 (BNS). Criminal negligence involves grave and culpable neglect, where an individual fails to perform a duty with reasonable care, leading to injury or death. This neglect can extend to actions such as rash driving, medical negligence, or negligence by transport personnel.


Essential Ingredients of Section 106 BNS:


To establish criminal negligence under Section 106 BNS, certain essential ingredients must be fulfilled:


1. Death of an Individual: Criminal liability arises only when the victim has died due to the negligent act.


2. Negligent Act by the Accused: The death must be a direct result of a rash or negligent act by the accused. This act can include both commission and omission, extending the scope of liability.


3. Exclusion of Culpable Homicide: The accused's act should not fall under culpable homicide, indicating an absence of intention or knowledge to cause death.


4. Mens Rea: While criminal negligence doesn't require explicit intention, there must be a guilty state of mind. This includes recklessness, indifference, or a callous attitude resulting from a negligent or rash act.


Types of Acts Covered:


Section 106 BNS encompasses both rash and negligent acts. Rash acts involve subjective and objective elements, requiring deliberate action associated with foreseeable risks. Negligent acts, on the other hand, involve a lack of reasonable care and caution, with the accused unaware of or having no reason to believe the illegal consequences of their actions.


Now let us examine the differences between negligence in tort and criminal negligence


1. Existence of Mens Rea:


   - Negligence in Tort: The mental element, mens rea, or intention is immaterial. The focus is on the breach of duty rather than the intent behind the actions.


   - Criminal Negligence: Requires the existence of mens rea, reflecting a conscious disregard for the potential consequences of one's actions. The person committing the act or offense must have a culpable mental state.


2. Intensity of the Offense:


   - Negligence in Tort: Even if the wrong of negligence is of lesser intensity, it can still be a basis for civil action, leading to compensation for damages.


   - Criminal Negligence: Demands a higher degree of negligence. Only when negligence reaches a gross level does it become grounds for criminal prosecution; otherwise, there is no case for legal action.


3. Proving the Extent of Negligence:


   - Negligence in Tort: The plaintiff must establish that the defendant owed a duty, which was breached due to negligence. Simple negligence can make the defendant liable for damages in civil cases.


   - Criminal Negligence: Requires a more rigorous standard of proof. The negligence must be gross, demonstrating a severe departure from the standard of care expected in a given situation.


4. Determining the Extent of Liability:


   - Negligence in Tort: The extent of liability is contingent upon the harm or injury caused to the plaintiff. Damages are proportional to the harm suffered.


   - Criminal Negligence: The degree and amount of negligence play a pivotal role in determining liability. The consequences of the negligence weigh heavily in criminal proceedings.


5. Contributory Negligence:


   - Negligence in Tort: Adheres to the Common Law tort rule of contributory negligence. Plaintiffs cannot claim damages if they were also negligent and contributed to the harm caused.


   - Criminal Negligence: The concept of contributory negligence is not directly applicable. Criminal liability focuses on the defendant's actions and their degree of culpability, rather than the plaintiff's conduct.


Conclusion


In essence, negligence in tort allows for a more wider scope, accommodating cases of varying degrees, while criminal negligence demands a higher threshold, reserved for instances of gross negligence.


Difference between negligence in tort and criminal negligence under BNS (Bharatiya Nyaya Sanhita)


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