The main legal point established in the judgment is the interpretation of a 'rash and negligent act' leading to the death of a person, and the distinction between Section 304A and Section 304 Part II of the Indian Penal Code.

TIRTHANKAR GHOSH, J.

1. The revisional application has been filed challenging the order dated 29th March 2018 passed by the learned Additional District & Sessions Judge, Fast Track Court No.2, Barasat North 24 Parganas, in Criminal Revision no. 162 of 2017 arising out of the order dated 28.06.2017 passed by the learned Additional Chief Judicial Magistrate, Bidhannagar in GR Case No.263 of 2013.

2. The brief facts of the case relate to a letter of complaint which was addressed to the Inspector-in-charge Lake Town Police Station by Ramuna Mistry, alleging that:

"Today at about 11.15 AM while my grandson namely Master Shubham Sharma, aged about 07 years, was returning back from his school along with his father Mr. Anand Sharma, a Chevrolet Spark car bearing registration no. WB06A 8056 driven by a lady (along with another person sitting beside the said lady), who seemed to have been learning to drive the said car and who did not had (have) any driving licence, suddenly hit the said minor child with full impact and crashed the said car along with the minor child on a nearby wall and thereby causing (caused) severe injuries to the said child. Subsequently Mr. Anand Sharma the child's father immediately took him, in a severely injured condition, to the nearby Daffodil Nursing Home and was declared dead by the said hospital. The said incident took place in front of House no.330, Canal Street, Kolkata - 700048. The said lady was learning to drive the car, in bright daylight, on a heavily trafficked road in spite of having full knowledge and being fully aware of the consequences of her actions".

3. On the basis of the aforesaid letter of complaint Lake Town Police Station Case no. 283/13 dated 05.10.2013 under Sections 279/304 of the Indian Penal Code was registered for investigation.

4. Investigating agency on completion of investigation submitted charge-sheet against the accused Shreya Sarbadhikari under Section 279/304 of Indian Penal Code, citing 10 witnesses and number of documents in support of their contention. After submission of charge-sheet and compliance of the relevant provisions of Section 207 of Criminal Procedure Code the instant case was committed to the Court of the learned District & Sessions Judge, Barasat. The case was thereafter transferred to the Court of the learned Additional Sessions Judge, 4th Court Barasat, North 24 Parganas. From the order dated 8.9.2015 passed by the learned Sessions Court it is seen that a discharge petition was preferred by the accused/opposite party no.2. The learned Sessions Court on consideration of the submissions made by the learned Advocate for the accused and the learned Public Prosecutor-in-charge was pleased to hold that the offence committed by the accused were under Section 279/304A of the Indian Penal Code which are Magistrate triable offence and accordingly remitted the case back to the learned ACJM Bidhannagar for trial, after framing charges under Section 279/304A of the Indian Penal Code. It would be pertinent to state over here that the learned Public Prosecutor-in-charge conceded to the submissions made by the learned Advocate for the accused/opposite party and did not apprise the learned Court regarding the materials collected by the investigating agency. It is further surprising that the learned Sessions Court without analysing the statement of the relevant eye witnesses observed:

"I do not find any material either in the materials in the C.D. or in the materials in the L.C.R. that the act of the accused by which the death is caused is done with the intention of causing death or with the knowledge that it is likely to cause death of the victim and the act of the accused by which death is caused is nothing but a rash and negligent act not amounting to culpable homicide."

5. On receipt of the case records from the Sessions Court the learned ACJM Bidhannagar after framing charges under Section 279/304A of the Indian Penal Code proceeded with the trial of the instant cas