RAMESHWAR MAHTON Vs. RAMBARAN SINGH

JUDGEMENT

(1.) THIS appeal has been preferred by the complainant with special leave under Section 417(3), Code of Criminal, Procedure. It is directed against an order of acquittal vrecorded by the learned trying Magistrate in favour of the three respondents who were tried by him on charges under Sections 397 and 458, Indian Penal Code.

(2.) MRS. Lall appearing for the respondents has taken a preliminary objection as to the competency of this appeal. The contention of the learned Counsel is that section 417(3), Code of Criminal Procedure, is not applicable to the present case inasmuch as the case which has ended in acquittal was not instituted upon a complaint.

(3.) A perusal of the various orders to which I have already referred leaves no room for doubt that this was a case which had not been instituted upon a complaint petition. No doubt a complaint had been filed by the appellant on the 13th August, 1959, and he was also examined on the same day on solemn affirmation, but the case was not instituted upon that complaint. The only action taken upon that complaint was that the order of discharge passed on the 14th August, 1959 was recalled and on the 14th September, 1959, the final report of the police was scrutinised with care and as a result of such scrutiny, the learned Subdivisional Magistrate felt satisfied that a prima facie case had been made out and that a charge sheet should be called for in the case. This order was not passed upon a consideration of the allegations contained in the petition of complaint but upon the basis of the police report. Even cognizance was not taken by the Subdivisional Magistrate until after the receipt of the charge sheet from the police. It is, therefore, manifest that the case was actually instituted upon a police report. In spite of the fact that a complaint had also been filed, cognizance was not taken on the complaint, but it was taken upon the police report submitted under orders of the Subdivisional Magistrate dated the 14th September, 1959.