Patna High Court
Rameshwar Prasad vs Bhatu Mahton And Ors. on 14 February, 1956
Equivalent citations: AIR1958PAT11, 1958CRILJ71, AIR 1958 PATNA 11, 1956 BLJR 166
ORDER
1. This is an application for special leave to appeal against an order of acquittal under Sub-section (3) of Section 417 of the Code of Criminal Procedure. That sub-section runs as follows :
"If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
It is clear that an application under this subsection can only lie if the case was instituted upon complaint. In the present case, a first information report was lodged before the police. After investigation of the case, the police submitted charge-sheet. Thereafter, the accused opposite party were put upon their trial. Mr. S.P. Sinha has, however, stated that the petitioner filed a protest petition before the Sub-Divisional Magistrate before the police submitted charge-sheet, that the protest petition must be held to have been a complaint and that thus the case ought to be held to have been instituted upon that complaint.
It is true that it has been held by this Court in several cases that a protest petition, when the prayer in it is for holding a judicial enquiry, for calling for charge-sheet or for putting the accused on trial, is a complaint within the meaning of Section 4 (h) of the Code of Criminal Procedure. The protest petition referred to by Mr. S.P. Sinha in this case, however, was a petition in which the only prayer was that the Magistrate should direct the statements of some of the prosecution witnesses to be recorded under Section 164 of the Code of Criminal Procedure. The definition of "complaint" under Section 4 (h) is as follows:
" 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."
2. Mr, S. P. Sinha has contended that a petition must be treated to be a complaint when it is filed before a Magistrate for taking any action under the Code. This, in our opinion, is entirely incorrect. If, for instance, a person files a petition making some accusation against another person and praying for action under Section 107 of the Code of Criminal Procedure, the petition cannot be treated to be a complaint. The entire definition makes it clear that a petition will be treated to be a complaint only when there is an accusation against some person and the prayer is for taking action as upon a complaint under Sections 200 to 204 of the Code of Criminal Procedure.
As there was no prayer in the petition filed by the petitioner in this case that any action as provided for under Sections 200 to 204 should be taken, the petition cannot be treated to be a complaint.
3. As the present case was not instituted upon a complaint, an application for special leave under Sub-section (3) of Section 417 is not maintainable. It is, therefore, dismissed.