B VHUCHAPPA Vs. NVENKATASWAMY

JUDGEMENT

(1.) The question which arises for determination in this Criminal Petition is as to whether the petitioner is entitled under sub-s(3) of S. 417of the Commissioner. P. C. To apply for special leave to appeal from the order of acquittal which has been passed by the First Class Magistrate, Doddaballapur, in Criminal Case No. 12 of 1958 on the file of his Court. In that criminal case, the Police of Dodbelavangala had placed a charge-sheet against the accused persons, for offences under Ss. 454, 451, 427 and 379 I.P.C. The Magistrate has passed an order of acquittal under sub-s. (11) of S. 251-A of the Cr.P.C. Having regard to the fact that it was the Police that had placed the charge-sheet before the Magistrate, the High Court officer entertained a doubt as to whether the present petitioner could under S. 417(3) of the Commissioner. P. C., ask for leave to appeal. The Hon'ble Admission Judge before whom the papers had been placed, ordered that it may be posted for orders on the question of maintainability. Thereafter, the matter came up before this Bench and in view of the importance of the question raised. Shri Shankar Chetty the learned Additional Assistant Advocate General was requested to assist the Court. Sri H. L. Narasimha Sastry has argued on behalf of the petitioner that the application is maintainable under S. 417(3) of the Criminal P. C.

(2.) The stand which have been taken on behalf of the present petitioner is that though the Police had placed the charge-sheet, it was the complainant that first started the proceedings by presenting a complaint to the Magistrate and it was on that complaint, that the Magistrate ordered the investigation which resulted in the Police placing the charge-sheet. The learned Additional Assistant Advocate General's contention is that as the Magistrate took cognizance of the offence not on the complaint of the petitioner, but only on the complaint of the petitioner, but only on the charge-sheet placed by the police, the order of acquittal subsequently passed was not on "any case instituted upon complaint" and that, therefore, Section 417(3) of the Cr.P.C. would not entitle the petitioner to apply for special leave. For the reasons which will be presently stated we are of the opinion that the contention of Sri Shankar Chetty has to prevail.

(3.) On a careful reading of sub-section (3) of Section 417 of the Commissioner. P. C. It will be seen that it is not sufficient for the purposes of that sub-section if merely a complaint had been made and an order of acquittal has been subsequently passed; it is also necessary that such an order of acquittal should have been passed in a "case" instituted upon complaint. The contention of Sri Shankar Chetty is that until a Magistrate has taken cognizance of an offence, there is no "case" before the Magistrate and it is urged by him that as the Magistrate did not take cognizance of the offence on the present petitioner's complaint, the subsequent order of acquittal has not been passed in a "case" instituted upon complaint, within the meaning of sub-section (3) of Section 417 of the Cr. P.C.