CHEERAN SANKARAN Vs. NARAYANAN RAJAPPAN

JUDGEMENT

(1.) This appeal is by special leave under S.417(3), Crl. P.C., against an order of acquittal. P. W. 1, claiming to be lessee of the property in dispute, complained that on March 16, 1965, at 8 p.m., the accused formed themselves into an unlawful assembly, criminally trespassed into the property in his possession, and took away sedimental earth worth Rs. 100/-. The complaint that he filed before the Additional First Class Magistrate, Shertallai, on March 17, 1965, was forwarded by the Magistrate to the Sub Inspector of Police, Muhamma, for investigation, under S.156(3) of the Criminal Procedure Code. After investigation the Sub Inspector filed a charge sheet against the accused, for offences under S.143, 447 and 379, I. P. C. The accused in their turn claimed themselves to be in possession as varamdars and P. W. 1 to have never been in possession of the property. The Magistrate found possession not been proved with P. W. 1 and therefore acquitted the accused. P. W. 1 has come up in appeal against that order.

(2.) Counsel for the accused here pointed out that the case having been instituted on police report an appeal by P. W. 1 is incompetent.

(3.) Under sub-s.(1) of S.417, Crl. P. C., the State Government may file an appeal from an order of acquittal "in any case", and under sub-s.(3) special leave may be given to a complainant to appeal from an order of acquittal "in any case instituted upon complaint." The question therefore is whether this case is one "instituted upon complaint." Counsel for appellant contends that a complaint having been the first proceeding in the case, it should be deemed to have been "instituted upon complaint"; and counsel for the accused contends that cognizance of the offence complained of having been taken by the Magistrate only on receipt of a police report it should be held to have been instituted on a police report. The question appears to be covered by authority of the Supreme Court in Jamuna Singh v. Phadai Shah ( AIR 1964 SC 1541 ). In Para.6 and 8 of the judgment, Das Gupta J., speaking for the Court, has observed: