Prasannachary v. Chikkapinachari And Anr.

ORDER

1. This is an application for special leave to appeal from an order of acquittal parsed by the Second Magistrate, Bangalore City. The Petitioner made a written complaint to the Police that, on the evening of 8-9-1956, the Accused trespassed into his house, assaulted him and caused him hurt. After investigation, the Bangalore North Police placed a charge-sheet against the Accused in the Court below. After inquiry, charges were framed against the Accused for offences under Sections 448 and 324 of the Indian Penal Code and after trial the Accused were acquitted.

2. It is thus seen that the case was one instituted in the Court by the Police and not by the Petitioner. The question for consideration is whether the petitioner is entitled to apply for special leave under Section 417, Sub-section 3 of the Code of Criminal Procedure. It reads :

"If such an order of acquittal is passed in any ease 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."

Section 417 has been amended by the amendment act xxvi of 1955. Prior to the amendment it was only the State Government which had the right to present an appeal from an order of acquittal in any case. The amended section preserves that right to the State Government under Sub-section (1); Sub-section (2) confers on the Central Government the right of presenting an appeal from an order of acquittal in any case in which the offence has been investigated by the Delhi Police establishment: Sub-section (3) provides for an appeal against an order of acquittal in any case instituted upon complaint, but this is subject to the grant of special leave to appeal on an application made to the High Court by the complainant : Sub-section 4 fixes a period of sixty days for making such an application : the last sub-section, i.e., Subsection 5, provides that if leave has been refused under Sub-section 3, the State Government shall not have the right to prefer an appeal under Sub-section (1).

As stated above, prior to the amendment no one other than the State Government could prefer an appeal against acquittal and the State Government could prefer an appeal against an order of acquittal in any case. Therefore, if any person felt aggrieved by an order of acquittal and if he desired that an appeal should be filed against the order of acquittal, the only mode available to him was to move the State Government to prefer an appeal. The result of the amendment has been -- leaving out of consideration the right of appeal granted to the Central Government -- to enable a complainant in a case instituted upon a complaint also to present an appeal against the order of acquittal in such a case, subject to his obtaining special leave to appeal.

3. It is urged by the learned Advocate for the Petitioner that the Petitioner instituted the case, though it was by preferring a complaint to the Police and not to the Court and that being the complainant he is entitled to apply for special leave. He says that he has been described in the Judgment as the "complainant". But the institution referred to in the sub-section obviously refers to institution in Court and means the initiation of criminal proceedings in Court. The petitioner's complaint to the Police, no doubt, was the starting point, but the initiation of proceedings in the Court was not by him but by the Police.

4. It is next urged that, even if the initiation of the proceedings in Court was by the Police, such initiation followed the complaint made by the petitioner to the police, and that, therefore, the case was instituted upon complaint. In other words, it is contended that there is nothing in the language of the sub-section to show that the complaint and the con-

sequent institution of the case must be by the same person or agency.

That might be a possible construction, if the word 'complaint' is to be understood in its ordinary connotation as the expression of a grievance by one person against another. It would follow that the word 'complainant' would connote the aggrieved person, But the word 'complaint' is defined in Section 4(1)(h) of the Code of Criminal Procedure 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 docs not include the report of a police officer."

In interpreting the meaning of any expression in the provisions of the Code of Criminal Procedure the definition of the expression in the Code has to be borne in mind and given effect to unless a different intention appears from the subject or context. The definition of 'complaint' extracted above makes it clear that the allegation whether oral or in writing is to be made directly to a Magistrate if it is to constitute a complaint. Further, the definition specifically excludes the report of a Police Officer. The present case is one resulting from the report of a Police Officer. In other words, it is a case instituted not upon a 'complaint' as defined in the Code but upon a report by a Police Officer,

5. Then the question is whether there is anything in the subject or context of Section 417 of the Code of Criminal Procedure; which warrants giving a different or more extended meaning to the word "complaint" as it occurs in Sub-section 3 of that section. It has been mentioned above that prior to the amendment it was only the Slate Government that had the right of preferring an appeal against an order of acquittal.

The object of the amendment of the section --once again leaving out of consideration the right conferred on the Central Government -- was to grant the right of appeal to complainants in cases instituted upon complaint. In cases instituted upon a police report it is the officers entrusted with the preservation of law and order that initiate proceedings before the appropriate Magistrate and the conduct of the case is in their hands or in the hands of the Public Prosecutor. The State is really the complainant and prosecutor.

But even in other cases, i.e., those instituted by a complaint made by a private party or in any other manner directly to the court, the State was given the right to prefer an appeal against an order of acquittal and that right is preserved in the amended section also. This was because every offence is a matter affecting public order and the safety and security of the community and if in any case instituted even by a private party it was considered by the State Government that public interest required an appeal being preferred against an order of acquittal the State Government was given the right to do so.

If the aggrieved person his, in the first instance, approached the police and they have initiated proceedings in court there is nothing inappropriate it the initiative in respect of further proceedings by way of an anneal against an order of acquittal should continue to he in the hands of the Stale Government and it would still he open to the aggrieved person to move the Government to prefer an appeal. In the case of a complaint made directly to the court the position previously was that if the case resulted in an acquittal, the aggrieved party had to move the State Government to prefer an appeal.

The extention of the right of appeal to a complainant by virtue of the amendment is obviously to enable such a person to approach the High Court directly subject to his obtaining special leave. In other words, it is the High Court that will examine whether there is a prima facie case for entertaining an appeal and not the State Government.

The basis of the amendment extending the right of appeal (subject to grant of special leave) to a complainant appears to be that, since the case was instituted by his taking his grievance directly to the Court, he might also be permitted direct access for the purposes of an appeal if the case resulted in an acquittal.

Thus there is not only nothing in the context and subject of Section 417 of the Code of Criminal Procedure to warrant a departure from the meaning given to the word "complaint" under Section 4 (1) (h) but the context appears to make it clear that the intention was to confine the right to cases instituted directly by a complaint to the Court.

6. The learned Advocate urges that Sub-section (5) which deprives the State Government of the right of preferring an appeal in cases where leave has been refused under Sub-section 3 uses the word 'in any case' and that therefore by implication Sub-section 3 is applicable to any case. There is no force in this contention.

Under Sub-section 1 the State has a right to prefer an appeal against an order of acquittal in any case. That right is taken away in respect of cases where leave has been refused under Sub-section 3. That is because the High Court will have already applied its mind and come to the conclusion that the case is one in which there is no warrant for interfering in appeal.

But the High Court has occasion, to apply its mind to this matter only when an application for leave is filed under Sub-section 3 and such an application is determined by the provisions of Sub-section 2 itself all that the use of the words 'in any case' in Sub-section 5 implies is that if, in any case in which an appeal under Sub-section 3 can be filed, leave has been refused, no appeal can be filed by the State.

7. Further, Sub-section 5 creates an exception to the right conferred on the State Government under Sub-section (1) while Sub-section (3) confers a right of appeal (subject to grant of leave) on a complainant in a case instituted upon complaint. The extent of the right has to be gathered from the terms of the sub-section conferring the right and not from another provision creating an exception, even if the latter provision could be so construed.

8. We therefore hold that the application is not maintainable and it is dismissed.

9. Application dismissed.