A conductor's suggestion to a passenger to travel on the roof of a bus does not, in itself, constitute a prima facie case of culpable homicide under Section 304A of the IPC, especially when the passenger's own negligence in voluntarily traveling on the roof contributed to the accident.

( 1 ) THIS Revisional Application has been filed under Section 401 read with section 482 of the Cr. RC. against the order dated 09. 07. 2003 passed by the learned Judicial Magistrate, 3rd Court, Bishnupur, District Bankura in G. R. Case no. 38 of 2003 arising out of Joypur Case No. 5 of 2000 under Section 279/ 304a I. P. C. Case of the petitioner is that, the above mentioned Criminal Case was started on the basis of the written complaint submitted by one Pirupada dey on 22. 02. 2000 stating therein that his brother-in-law Hari Nandi was travelling by S. B. S. T. C. bus bearing No. WB-39-3604. Said Hari Nandi was travelling on the roof of the Bus and in so doing, he received injury on his head by a branch of a tree and he was sent to Joypur Primary Health Centre for treatment by the public. Subsequently he was transferred to Bishnupur Hospital and from there to the P. G. Hospital, Kolkata where he expired on 26. 7. 2003. It has been alleged in the written complaint that due to the rash and negligent driving on the part of the driver as well as due to the negligence of the conductor of the said bus, the victim sustained injury. On the basis of the said written complaint, the case was investigated and after investigation charge sheet under section 279/304a, l. P. C. was submitted against the driver as well as the conductor of the said bus. On 9. 7. 2003 the case was fixed for recording the plea of the accused persons. On that day, after hearing both the sides, Ld. Magistrate was of the opinion that there was no case against the driver of the vehicle under Section 279/304a, l. P. C. and as such he was discharged from the case. But the Ld. Magistrate at the same time was of the opinion that there was prima facie case against the conductor under Section 304a of the l. P. C. So the substance of accusation under Section 304a of the l. P. C. was read over and explained to the accused/petitioner who pleaded not guilty and so the Ld. Magistrate fixed a date for recording evidence. Being aggrieved and dissatisfied with the said order of the Ld. Magistrate, this Revisional Application has been preferred alleging therein that the Ld. Magistrate was not at all justified in holding that there is a prima facie case under Section 304a of the l. P. C. against the accused/conductor.

( 2 ) I have heard the submissions of the Ld. Advocate for the petitioner and the Ld. Advocate for the State. It is tne admitted position that the deceased at the relevant time was travelling by the roof of the bus and while doing so he was hit on his head by a branch of a tree and as a result of that he sustained injury and ultimately died. The very basis of the prosecution case is that the driver was driving the said vehicle in a rash and negligent manner and as such the accident took place. But it appears from the order of the Ld. Magistrate that he was of the opinion that there was no prima facie case of rash and negligent driving against the driver of the said vehicle. So the very basis of the case goes. Considering that aspect, the Ld. Magistrate was pleased to discharge the main accused, that is the driver of the vehicle. But at the same time he was pleased to proceed against the conductor presumably on the basis of the statements as made under Section 161, Cr. P. C. wherein some of the witnesses have stated that it was the conductor who suggested the deceased to travel on the roof of the bus. Even if it is accepted that the conductor gave such proposal to the deceased, then also it can not be said that a prima facie case under section 304a of the l. P. C. has been made out so far as the conductor is concerned. No criminal liability can be attached with this act allegedly done by the conductor. At best it can give rise to a civil responsibility. We cannot shut our eyes to the fact that the concerned passenger also contributed to the negligence, if any, by voluntarily travelling on the roof of the said bus. Under such circumstance, I have got