(1.) Complainant before court below has filed this petition for special leave to appeal against the judgment acquitting the accused. Office noted the defect that petitioner cannot maintain this application for special leave to appeal because he was not a party to the proceedings before trail court. Proceedings before Trial Court was initiated on a police charge. Present petitioner, being only a witness before court below should canvass the correctness of acquittal by filing a revision petition. Learned counsel representing the petitioner took the view that proceedings before court below had its origin on the complaint filed by petitioner and hence petition for special leave to appeal alone is maintainable. To resolve this controversy, office has sent up the matter.
(2.) Petitioner lodged a complaint alleging offences under S.448, 506(2) and S.427 read with S.34 IPC. Learned Magistrate without taking cognizance of that complaint forwarded the same to police for investigation under S.156(3) of the Code of Criminal Procedure. On that basis police registered crime 40/87 of Varandanappilly police station. After investigating the same police laid charge before court. It was entertained by the Magistrate as C.C. 240/87. Petitioner herein was examined as PW-1. In State of Kerala v. Wilfred ( 1968 KLT 57 ) this court had to consider the question whether a complaint forwarded by the Magistrate to police for investigation and report under S.156(3) of the Code would continue to retain its character as complaint eventhough the police after investigation had sent up final report charging the case. Sadasivan, J., took the view that investigation of the complaint, which was forwarded under S.156(3), by the police and report filed thereon will not in any way change the character of the complaint and the proceedings will continue to be proceedings initiated on private complaint. Learned Judge observed:
(3.) The facts of the case that came up before the Supreme Court, in short, are as follows: A private complaint was filed before the Magistrate. The Magistrate after examining the complainant on oath made an order asking Sub Inspector of Police to institute a case and report. Ultimately, a chargesheet was filed by police. Accused persons were committed to the sessions court. Sessions trial ended in acquittal. Against the order of acquittal complainant filed an appeal before High Court. High Court set aside the order of acquittal and convicted accused. That conviction was challenged before the Supreme Court. In that appeal, maintainability of the appeal before High Court was in issue. The Supreme Court took the view that the Magistrate had taken cognizance of the case by examining the complainant and thereafter he ordered investigation by police under S.202 of the Code. The Magistrate had not referred the complaint to police for investigation under S.156(3) of the Code. In these circumstances it was held that the case was one instituted on a complaint filed by the complainant and not on police report submitted later as directed by the Magistrate.