M. S. A. Siddiqui, J.

( 1 ) THIS revision is directed against the order dated 16. 12. 1998 passed by the Metropolitan Magistrate, Delhi directing framing the charge under Section 304-A, Indian Penal Code against the petitioner.

( 2 ) BRIEFLY stated, the prosecution case is that on 26. 4. 1996, while playing Golf at the Army Golf Course, the petitioner played a stroke in a rash and negligent manner, causing the fatal injury on right pariet-temporal region of his caddie, namely, Amit James. Immediately thereafter, Amit James was removed to Safdar Jung Hospital. On 2. 5. 1996, the deceased succumbed to the said injury in the hospital. On 27. 4. 1996, deceased s father Soloman Jamesh lodged the FIR at the P. S. Delhi Cantt. regarding the alleged incident. Investigation pursuant thereto culminated in submission of a charge sheet under Section 304-A Indian Penal Code against the petitioner. By the order dated 16. 12. 1998, the learned Magistrate explained particulars of the offecse to the petitioner in the form of a charge under Section 304-A Indian Penal Code Aggrieved thereby, the petitioner has come up in revision before this Court.

( 3 ) LEARNED counsel for the petitioner has strenuously urged that the impugned order has not only resulted in manifest injustice meted out to the petitioner but the same is patently illegal, improper and unjustified. It is worth-mentioning that the facts relevant to this particular case are hardly in dispute. Negligence in this case consists of two factors (a) playing the stroke with considerable velocity and (b) failure to exercise reasonable care to ensure that the deceased caddie was not exposed to any danger. What constitutes negligence has been analysed on Halsbury s Laws of England (4th Edition) Volume 34 Paragraph I (page 3), as follows:

"negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no- legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not -do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of he case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two. "

( 4 ) IN this context, I may usefully extract the following passage from Kenny s Outlines of Criminal Law, 19th Edition (1966) at page 38:-

"yet a man may bring about an event without having adverted to it at all; he may not have forseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful; if harmful the question rises whether there is legal liability for it. In tort (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realized the prospect of harm and would have stopped or changed his c

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