K DAMODARAN Vs. V K SIPPI

JUDGEMENT

(1.) I do not think that this appeal against acquittal; sought to be presented under S.417 (3) of the Criminal Procedure Code, lies. For, although there was a complaint by the appellant to the Sub-Divisional Magistrate, Tellichery it was not on that cognizance was taken. That complaint was merely forwarded to the police for investigation under S.156 (3) of the Code, and, it was on the final report made by the police pursuant to that investigation, that the court took cognizance. Under S.417(3) it is only where an order of acquittal is passed in a case instituted upon complaint that the complainant may present an appeal against the acquittal. And it seems to me that, both as a matter of plain English (for a case is not instituted in a court until the court takes cognizance of it), as also on a consideration of the scheme of the Code, the words, in any case instituted upon complaint appearing in the section mean, in any case of which the court has taken cognizance upon complaint and, complaint as we learn from S.4(h) does not include a police report. The Division Bench rulings in Sk Gaman Gani v. Baramdeo Singh (AIR 1959 Calcutta 145) and Huchappa v. Venkataswami (1959 Mysore Law Journal 946) where the matter is considered at length are directly in point and, with great respect, I have little hesitation in following these decisions in preference to the Single Judge ruling in Kshetrabashi v. Lalit Kumar (AIR 1959 Calcutta 595) where, without reference to the earlier Division Bench ruling, and without any discussion of the several relevant provisions of the Code, it was observed that, be cause there was a complaint to a magistrate on the basis of which the police made an investigation and submitted a final report, it could safely be concluded that the case was instituted upon complaint.

(2.) It is argued that special leave to appeal having been already granted under S.417(3), the competency of the appeal is no longer open to question and must be deemed to have been decided on the application for special leave. For, it is as much a requisite for making such an application as for presenting the appeal that the case should have been instituted upon complaint. The argument is unacceptable. It might be that the grant of leave necessarily implies a finding that the case was instituted upon complaint; but then the application for leave is an entirely separate though perhaps ancillary proceeding, and a decision there cannot amount to a decision in the appeal that the appeal is competent. A complainant may present an appeal to the High Court under S.417(8) only if the case was instituted upon complaint, and therefore it is incumbent on me, before hearing the appeal, to decide whether this is such a case.

(3.) It is also said that the appeal having been already admitted, the question of its competency no longer arises. I have never heard it said that the admission of an appeal precludes a party from questioning, or the court from considering, whether it lies at all. And, in fact, the only judicial order so far passed in this case is that the application for leave to appeal has been granted. Admission, in the technical sense of the term, so far as the practice of this court is concerned, is in cases like present, automatic.