11 March 1970
Supreme Court


Case number: Appeal (crl.) 166 of 1967






DATE OF JUDGMENT: 11/03/1970


CITATION:  1970 AIR 1153            1971 SCR  (1)   1  1969 SCC  (1) 665  CITATOR INFO :  R          1971 SC1977  (13)

ACT: Code  of Criminal Procedure 1898, s.  417(3)--Police  filing chargesheet against two accused--Appellant filing  complaint against third accused--Acquittal of all accused by  Sessions Court--Whether  appellant  entitled  to  file  petition  for special leave under s. 417(3) in the case against the  third accused.

HEADNOTE: The appellant’s house was set on fire and burnt down.  As  a result  of  a report filed by his son  the  police  arrested Respondents  1  and 2 and submitted a  charge-sheet  against them.   The appellant was dissatisfied that the  police  had not  prosecuted  Respondent  No.  3  also  and  he  filed  a complaint  against him, in the same Court.   The  Magistrate inquired   into  the  two  cases  together   and   committed separately   the  first  two  respondents  and   the   third respondent  separately to the Court of Sessions.  After  the Sessions Judge had held all the three respondents not guilty and  acquitted them, the appellant applied under  s.  417(3) Cr.  P.C., for special leave to appeal against the acquittal of the three respondents; but this petition was dismissed by the  High  Court on the ground that the  petitioner  had  no locus  standi  to prefer an appeal when the State  had  pro- secuted  the respondents in the Sessions Court.  A  revision application  filed by the appellant was also  rejected.   On appeal to this Court, HELD  : The appellant was entitled to have a hearing of  his petition for special leave under s. 417(3) and the case must therefore  be remitted to the High Court for  this  purpose. The answer to the question whether the appellant had a right to  move  the High Court for special leave under  s.  417(3) depended  upon  whether there was a case instituted  by  him upon  a  complaint in which an acquittal was  recorded,  for this is the requirement of the special section and also  the condition precedent to the right. [4 B]. On the facts, there could be no doubt that one of the  cases was  instituted  on the report of a police officer  and  the



other  on the complaint of the complainant.  There could  be no question of merger because the identity of the two  cases was  maintained  right upto the end of the  Sessions  Trial. The  case of the appellant proceeded on its own  number  and although  evidence  was  led in  both  cases  together,  the acquittal was recorded separately in each of the two  cases. The appellant was therefore entitled to move the High  Court for special leave in his own case. [6 G] The  fact that the appellant had also applied  for  revision which  was  rejected  and had  applied  for  special  leave- against that order which was refused by this Court, did  not mean  that that must conclude the matter.   The  appellant’s statutory right to move the High Court could not be lost  by reason  of the revision and the result of the revision,  had no bearing upon the matter. [7 B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.166  of 1967. 2 Appeal  by special leave from the judgment and  order  dated November 28, 1966 of the Mysore High Court in Criminal Peti- tion No. 610 of 1966. V. K. Sanghi and M. S. Narasimhan, for the appellant. S. S. Javali and M. Veerappa, for respondents Nos.  1 and 2. R. Gopalakrishnan, for respondent No. 3. S. P. Nayar, for respondent No. 4. The Judgment of the Court was delivered by Hidayatullah,  C.J.-This  is  an  appeal  by  special  leave against  the judgment and order of the High Court of  Mysore dated November 28, 1966 in Misc.  Criminal Petition No.  610 of 1966.  By that order the High Court held that the present appellant  Bhimappa had no locus-standi to invoke S.  417(3) of  the  Code of Criminal Procedure and to ask  for  special leave  to  file  an  appeal against  the  acquittal  of  the respondent.  The appellant questions the correctness of  the order. Bhimappa  (appellant) had a house at Athni,  Taluka  Belgaum District.   It stood in the name of his eldest son  and  his two other sons lived in one part of the house and the  other part  was let out to the first respondent Laxman who  ran  a boarding  house  and  also lived there  with  his  wife  and children and his mistress Champevva, the second  respondent. No  rent  was fixed but the sons of Bhimappa  used  to  have their  meals with respondents Nos. 1 and 2.  Bhimappa  asked his tenant to vacate the house as he wanted to reside in  it himself  and his son Yamnappa (P.W. 14) wanted space  for  a godown  for  400 bags of groundnut purchased  by  him.   The first respondent was asked to vacate a portion of the  house but was reluctant. It  is  not necessary to give the details of  what  happened further.   Suffice it to say that the house was set on  fire to  cause loss to Bhimappa.  All efforts to save  the  house failed and it was burnt down.  Yamanappa then filed a report in the police station.  The police arrested respondents Nos. 1  and  2 and submitted a charge sheet against them  in  the court of Junior Magistrate, Athni. Bhimappa was dissatisfied that the police had not prosecuted Mallappa,  respondent  No. 3 also and he filed  a  complaint against him in the same court.  The magistrate inquired into the  two  cases  together and finding  a  prima  facie  case established  committed  the first two  respondents  and  the third  respondent separately to the Court of Sessions.   The



three  respondents asked that the two cases be  consolidated and a combined charge be framed in the case. 3 The  two  sessions cases were numbered  as  Sessions  Trials Nos..  79-80  of  1965.  They were tried  together  and  the Sessions Judge, Belgaum by his judgment, July’ 13, 1966 held the respondents not guilty and acquitted them. The appellant then applied to the High Court of Mysore under s.  417(3)  of the Code of Criminal  Procedure  for  special leave   to  appeal  against  the  acquittal  of  the   three respondents.   With  the petition he filed a  memorandum  of appeal.   The  High  Court held’ on  November  28,  1966  as follows :               "The petitioner has no locus standi to  prefer               an  appeal when the State had  prosecuted  the               respondent   in  the  Sessions  Court.    This               petition is dismissed.                         Sd/- H. Hombe Gowda,                         Chief Justice,                         Sd/- M. Santhosh," Bhimappa  filed  also  a  revision  application,  which  was dismissed  on December 5, 1966 by C. Honniah  J.  Bhimappa’s request for a certificate was also rejected.  He now appeals to  this  Court.  His contention is that he had a  right  to move  the High Court unders. 417(3) of the Code of  Criminal Procedure  for special leave as the order of ’acquittal  was passed  in a case instituted upon his complaint.   The  High Court could not, therefore, hold that he, had no standing to move the High Court under s. 417(3) of the Code of  Criminal Procedure. Sub-section  3 of s. 417 as an amendment was  introduced  by Act  XXVI of 1955.  Previously the right of  appeal  against acquittal  belonged  only to the State Government.   By  the amendment  this right is also conferred on a complainant  if the  order of’ acquittal is passed in any,  case  instituted upon complaint.  The sub-section may be read here               "3. If such an order of acquittal is passed in               any  case  instituted upon complaint  and  the               High  Court, on an application made to  it  by               the complainant in this behalf, grants special               leave to appeal from, the order of  acquittal,               the complainant may present such an appeal  to               the High Court." Under sub-section 4 the application has to be made within 60 days  from  the date of the order of acquittal  while  under sub-section 5 it the application under sub-section 3 for the grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal shall lie at the instance of the State Government. 4 The  short  question in this case is  whether  the  sessions case  .Started on the complaint of Bhimappa entitles him  to move  the High Court for special leave (a) against  all  the three respondents ,or (b) at least against respondent No. 3. The answer to this question depends upon whether we can  say that  there  was  a  case instituted  upon  a  complaint  by Bhimappa  in which an acquittal was recorded, for these  are the  words  of  the  sub-section  and  also  the   condition precedent  to the right.  The word ’case’ is not defined  by the  Code  but  its meaning is  well  under-stood  in  legal circles.   In  criminal  jurisdiction  means  ordinarily   a proceeding for the prosecution of a person alleged to  ’have committed  In  offence.   In other  contexts  the  word  may represent  other kinds of proceedings but in the context  of the  sub-section it must mean a proceeding which at the  end



results either in discharge, conviction, or acquittal of  an accused person. What is meant by ’instituted’ may next be explained.   There are  three  different ways in which cognizance is  taken  by Magistrates  of offences.  This is stated in s. 190  of  the Code.  They are               "(a)  upon receiving a complaint of the  facts               which constitute an offence;               (b)  upon  a report in writing of  such  facts               made by any police officer; and               (c) upon information received from any  person               other  than a police officer, or upon his  own               knowledge or suspicion, that such offence  has               been committed." The third sub-section, therefore, obviously refers to a case in  which  cognizance  is taken upon a  complaint  of  facts constituting  an  offence.  The word  ’complaint’  has  been defined  in S. 4(1)(h) ,and means an allegation made  orally or  in  writing to a Magistrate, with a view to  his  taking action,  under the Code, that some person, whether known  or unknown,  has committed an offence, but it does not  include the report of a police-officer. The  word ’complaint’ has a wide meaning since  it  includes even an oral allegation.  It may, therefore, be assumed that no form is prescribed which the complaint must take.  It may only  be said that there must be an allegation  which  prima facie  discloses  the  commission of  an  offence  with  the necessary facts for the Magistrate to take action.   Section 190(1)(a)  makes  it necessary that the alleged  facts  must disclose the commission of an offence. The  Code then proceeds to provide different procedures  for different cases arising under s. 190 and also in relation to the 5 seriousness   of  the  offence.   Chapter  XVI  deals   with proceedings instituted upon a complaint, Chapter XVIII  with inquiries into cases triable by the Court of Session or  the High  Court, Chapter XX with the trial of Summons  cases  by Magistrates, Chapter XXI with the trial of Warrant cases  by Magistrates,  Chapter XXII with summary trials  and  Chapter XXIII with trial before High Courts and Courts of Sessions. The offence here was mischief by fire with intent to destroy a house etc. punishable under s. 436 I.P.C. This offence  is triable7  exclusively by the Court of Session.  Section  207 of the Code of Criminal Procedure provides :               "Procedure   in   inquiries   preparatory   to               commitment-               In every inquiry before a Magistrate where the               case  is  triable exclusively by  a  Court  of               Session  or High Court, or in the  opinion  of               the  Magistrate,  ought to be  tried  by  such               Court, the, Magistrate shall-               (a)  in any proceeding instituted on a  police               report,  follow  the  procedure  specified  in               section 207A; and               (b)  in  any  other  proceeding,  follow   the               procedure specified in the other provisions of               this Chapter." Under s. 206 the Magistrate is required to commit an accused to the Court of Session for trial.  In cases triable by  the Magistrate himself he has to follow the procedure for  trial of cases according to the other procedures mentioned earlier by  us.  As this was a case for the application of  sections other than s. 207-A it fell under section 208.  That section provides  for cases of complaint and the is complainant  has



to  be heard when the accused appears or brought before  the Magistrate who has to take such evidence as may be  produced in  support of the prosecution or in behalf of the  accused, or  as may be called by the Magistrate.  Then under  s.  209 the  accused  may be discharged unless the  Magistrate  con- siders  it necessary that the person should be tried  before himself  or  some other Magistrate in which  case  he  shall proceed accordingly.  If he considers that there are reasons to  commit the accused, he shall frame a charge, explain  it to  the  accused,  obtain from the accused  a  list  of  his defence  witnesses.   The Magistrate may in  his  discretion examine  any of these witnesses and then commit the  accused to  stand  his  trial  before the Court  of  Session  or  if satisfied  that  there  are no grounds  for  committing  the accused.,  he  may  cancel  the  charge  and  discharge  the accused. It  will  be  noticed that in a case  involving  an  offence triable  exclusively by the Court of Session  the  procedure under ss. 206-220 6 has  to  be followed if the complaint  is  filed  initially. There   are  other  sections  in  the  Chapter   and   other Supplementary  provisions  Which  are not  relevant  to  the discussion  and,  therefore, reference .to them  is  omitted here. The position regarding other cases triable by the Magistrate himself  or by another magistrate are laid down  in  Chapter XVI.  There the magistrate shall examine the complainant and the witnesses present, if any.  The Magistrate may even send the case to the police for investigation under s. 156(3)  if he  is  empowered to act under S. 190.   This  procedure  of course  does not arise in cases in which the trial is of  an offence  triable  by the Court of Session.  As  we  are  not concerned  with  the problems arising under Chapter  XVI  we refrain from expressing an opinion on the various aspects of the problem arising under that Chapter.  For that reason  we do  not  refer  to cases which were  mainly  concerned  with trials before Magistrate. In  the  present case the police had put  up  a  chargesheet against two respondents only.  Bhimappa filed a complaint in which he charged these two respondents and respondent No.  3 with  the same offence of mischief by fire but with the  aid of s. 34 I.P.C. As he had charged the three respondents with having entered into :a Criminal Conspiracy a charge under S. 120-B I.P.C. was also framed while committing the accused to the  Court of Session.  Mallappa was also charged  under  S. 436  read with S. 109 I.P.C. for abetment of the offence  by the other accused.  The two cases in the Magistrate’s  Court were  registered  under  their own numbers  but  were  tried together  and  were committed separately.  In the  Court  of Session  they  were  also  registered  separately  and  bore numbers  Sessions  Cases Nos. 79 and 80 of 1965.   Both  the cases ,ended in acquittal. Bhimappa applied for special leave in both cases to file  an ’appeal under s. 417(3).  His right to ask for special leave was not accepted in the High Court. Now  there can be no manner of doubt that one of  the  cases was  instituted  on the report of a police officer  and  the other on the complaint of the complainant.  There can be  no question of merger because the identity of the two cases  is maintained  right up to the end of the Sessions trial.   The case  of Bhimappa proceeded on its own number  and  although evidence  was led in both the cases together, the  acquittal was  recorded in each of the two cases.  The police did  not present  a  charge-sheet against Mallappa and the  trial  of



Mallappa can be said to be in the other case and not in  the case filed by the police.  In this view of the matter it  is quite plain that Bhimappa was entitled to move the High 7 Court  for special leave in his own case.  The order  saying that he had no standing cannot, therefore, be sustained. Bhimappa  had also applied for revision and his  application was  rejected.   He applied for special leave  against  that order  but leave was refused by this Court.  It  was  argued that  that  must  conclude the matter.   We  do  not  agree. Bhimappa’s statutory right to move the High Court could  not be  lost  by  reason of the revision.   The  result  of  the revision, therefore, had no bearing upon the matter. Bhimappa was thus entitled to have a hearing of his petition for special leave under s. 417 (3) of the Code.  Whether  he could  ask  for leave against Malappa alone.or  against  the other  two  because  the charge under s.  120-B  I.P.C.  was framed against all the three respondents on his complaint is a  point which we do not decide because it will be  for  the High  Court  to  consider the matter when  his  petition  is considered and only if it is allowed. We  accordingly set, aside the order of the High  Court  and remit  the case for consideration of the petition  under  s. 417(3) filed by Bhimappa. R.K.P.S.                          Appeal allowed. 8