@JUDGMENTTAG-ORDER
Newaskar, J.@mdashQuestion as regards the competency of the appeal on the basis of leave granted on a petition by a Public Officer, acting in discharge of his duties, u/s 417(3) of the Criminal Procedure Code has been raised in these two appeal Nos. 259 of 1962 and No. 389 of 1962.
2. A preliminary objection is raised on behalf of the Respondents that it is only the private complainant who can move the Court u/s 417(3) of the Code of Criminal Procedure for obtaining necessary leave for preferring appeal against an order of acquittal and not a complainant who is a public servant and prefers complaint in discharge of his duties as a public servant. Reliance is placed on behalf of the Respondents on the Division Bench decision of this Court
3. Before proceeding to consider the reasoning contained in the aforesaid decision it would be material to refer to the relevant provisions of the Criminal Procedure Code. Section 417, as it stood before the amendment effected under the Code of Criminal Procedure (Amendment) Act, 1955, and as it stands now will also have to be taken into consideration.
4. Section 417 of the Criminal Procedure Code, as it existed before, was as follows:
The State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appeallate order of acquittal passed by any Court other than a High Court.
The amended Section 417 is as follows:
(1) Subject to the provisions of Sub-section (5). the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act,1946, the Central Government may also direct the Public Prosecutor to preseat an appeal to the High Court from the order of acquittal.
(3) 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.
(4) No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquital is refused, no appeal from that order of acquittal shall lie under Sub-section (1).
5. The term ''Complaint'' is defined u/s 4(1)(h) of the Code of Criminal Procedure thus:
''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.
6. Section 190 of the Criminal Procedure Code, which deals with the subject of ''Cognizance of offences by Magistrates'', provides by Sub-section (1) as follows:
(1) Except as hereinafter provided, any Presidency Magistrate, Distrate Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence:
(a) Upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
Section 195 of the Criminal Procedure Code, which deals with ''Prosecution for contempt of lawful authority of public servants'' provides that no Court shall take cognizance of any offence punishable u/s 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Similar restrictions are there with reference to prosecution for certain offences against public justice and it is laid down that cognizance in respect of those offences mentioned in Sub-section (b) of Section 1(sic)5 ought not to be taken except upon a complaint in writing of such Court or some other Court to which such Court is subordinate. Sub-section (c) of of Section 195 of the Code of Criminal Procedure provides for taking cognizance of offences relating to documents given in evidence provides that if if any offence described in Section 463 or punishable u/s 471, Section 475 or 476 of the Indian Penal Code is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding cognizance of such an offence cannot be taken except on a complaint in writing of such Court or of some other Court to which such Court is subordinate.
7. There are special statutes. Apart from the provisions contained in Section 195 of the Code of Criminal Procedure under which cognizance of particular Offences under those statutes could be taken only on a complaint made by a named authority. Section 32 of the Drugs Act for example provides that no prosecution under Chapter IV of the Drugs Act. 1940. shall be instituted except by an Inspector.
8. Section 393 of the Madhya Bharat Municipalities Act, 1954, provides that the Municipal Commissioner or any other officer authorised by the Municipal Council in this behalf in the case of the City Municipality and the Municipal Council or any other officer authorised by the Municipal Council in this behalf in the case of other Municipalities may direct a prosecution for any public nuisance whatever and may order proceedings to be taken for recovery of any penalties and for the punishment of any person offending against the provisions of this act or any rule or bye law made there under etc. Section 48 of the Madhya Bharat Town Improvement Act, 1956. provides that the provisions of Section 104 to 142 and Section 177 to 186 and provisions of Chapter TV of the Municipal Act shall, so far as may be consistent with the tenor of this Act, apply to all areas in respect of which the improvement scheme is in force.
9. The provisions in the Drugs Act and the Municipal Act read with the Madhya Bharat Town Improvement Act are referred to here by way of illustration to show that under certain circumstances public officers are by law required to approach Criminal Court for the purpose of securing convictions of persons who transgress the provisions of special statutes.
10. The question for consideration before us with reference to the preliminary objection which is raised in these two cases is, whether it is competent for the public officer such as the Drugs Inspector the Chairman of the Town Improvement Trust to resort to Section 417 (3) of the Code of Criminal Procedure for securing special leave to appeal from the order of acquittal when the case had been instituted upon a complaint made by them.
11. Upon the wording of Section 417(3) of the Code of Criminal Procedure it seems clear that where any case is instituted upon a complaint it is competent for the complainant to move the High Court to grant such complainant special leave to appeal from the order of acquittal. We have already referrred to the provision of Section 190 of the Code of Criminal Procedure which provides for different modes for initiation of proceedings in Criminal Courts and one of the modes is of filing a complaint of facts which constitute such offence as contained in Clause (a) of Section 190. The word ''complaint'' as has been seen above means the allegations made orally or in writing to a Magistrate with a view to take action under the Code of Criminal Procedure that some person has committed an offence but it should not include a report of a Police Officer. It, therefore, seems that allegations made to a Magistrate with a view to his taking action under the Code by any private person or by any public authority if authorised under the general or special statutes can properly fall within the four corners of the term ''complaint'' and the person thus moving the machinery of the Criminal Court for taking action for bringing the culprit to books will be a complainant. There does not seem to be anything in the four corners of Section 417 of the Code of Criminal Procedure or any where else in the Act to indicate that the word ''Complaint'' as used in Sub-section (3) of Section 417 of the Code of Criminal Procedure should be confined to a private complaint only and should not extend to a complaint by a public officer acting in discharge of his duty.
12. It is well settled that the words of wider import due to generality of language should be construed accordingly unless there are limiting words either in the statute itself indicating the contrary intention or such a narrower cannotation is indicated by the object behind the statute and not to give effect to such object or such construction will lead to an absurdity or unreason ability with the legislature should be presumed not to have intended vide
13. It appears from Clause (1) of Section 417 Cr. P. Code that the State Government could direct the public prosecutor to present an appeal to the High Court in any case against an original or appellate order of acquittal. This was the position even before the 1955 Amendment although the words used then were some what different. There was however, no provision prior to Amendment in Section 417 entitling a complainant to prefer appeal or seek leave as a matter of right to prefer appeal, although the High Court''s revisional jurisdiction could be invocked. The amendment now effected by the Code of Criminal Procedure (Amendment) Act of 1955, introduced a change in this and gave to a private party a right of appeal. The right granted was not absolute and free but was a truncated one and it could be availed of only after he succeeds in securing leave from the High Court for the purpose The Amended provision in Section 417 granted right to the Central Government as well in addition to that of the State Government to direct the public prosecutor to present an appeal in certain cases mentioned in Sub-section (2) and Sub-section (3) of Section 417 then provides that where the impugned order of acquittal is passed in any case instituted upon complaint then on securing leave from the High Court the complainant may present such an appeal to the High Court. The reason for the rule seems to be that the State Government in dealing with cases involving orders of acquittal may not be able to give that special attention which a complainant who was instrumental in putting the criminal law in motion could do and since the safe-guard had been placed to prevent vaxatious appeals or those preferred with improper or ulterior or selfish motives by providing for the leave of the High Court there is no real reason why the provision in Section 417(3) should be confined to private complainant alone. The same reason applies to both the reasons being that the complainant who has set the criminal law in motion and had watched the progress of the case would be in a proper position to pay special attention in the matter.
14. The Division Bench decision in the case reported in
The present application for leave to appeal and the proposed appeal are by the State and not by the Forest Ranger the complainant. Secondly, Sub-section (3) of Section 417 Cr. P. C, confers the right of appeal to the complainant in a case instituted upon the complaint of a private person and not upon the complaint of a _public servant or of a Court, The prosecution on the complaint of a Court or of a public servant acting in the discharge of his official duties being one by the State, and the State having the right of appeal in any case u/s 417(1), Cr. P. C, the word ''complaint'' and ''Complainant'' in Sub-section (3) can refer only to a private complaint and to a private complainant. This conclusion in further reinforced by the fact that before Section 417, Cr. P. C. was amended by Act No. 26 of 1955, the right of appeal against an order of acquittal was available only to the State Government. Before the amendment, a private person had no right of appeal against an order of acquittal and the object of the amendment incorporated in Sub-section (sic) is to confer the right of appeal on a private party with the leave of the High Court.
15. It seems from these observatious that in that case an application for leave to appeal u/s 417(3) was preferred by the State itself. That was how the petition mentioned as the party seeking leave. That was also the High Court''s construction of the petition On such a position as to the party moving the High Court u/s 417(3), there was perfect justification for holding that the State Government itself could have directed u/s 4)7 (1) Cr. P. Code the public prosecutor to present an appeal from the order of acquittal and no occasion could have legitimately arisen for resorting to provision u/s 417(3) for it. The words ''any case'' used there covering all orders of acquittal by the Criminal Courts subordinate to the High Court. Section 417 (3) evidently did not apply to such a case. The second ground no doubt suggested that the word complaint and complainant are confined to a private complaint and to a private complainant The reason for this view was stated to be that since, in the case of complaint by a Court or a public servant, right of appeal is already provided by Sub-section (1) of Section 417, there was no point in granting an additional remedy u/s 417(3). Second reason which according to them reinforced the view regarding limited meaning of the words comlpaint and complainant in Section 417(3) was stated to be that prior to amendment a private party had no right of appeal, the State Government alone being entitled to appeal. The amendment sought to confer this right upon the private complainant
16. As far as we see there is answer to both these reasons As regards the first prior to amendment the State Government was empowered to direct the public prosecutor to present an appeal in any case against an order of acquittal including the case of acquittal in a case instituted upon a complaint by a private party and this position remains unaltered by the amendment. It cannot be said that the State Government could act u/s 417 as it stoped(sic) before the amendment only in the case of cases started on a police report, upon the complaint by a Court or a public officer or on information otherwise received by a competent Criminal Court or. suo moto by such Court. The second reason does not really provide an answer for the limited construction, if we are allowed to say s(sic) with respect. We wish to suggest that the real object behind the amendment in Section 417 seems to be to provide for appeals in those cases were some special interests are involved and when particular persons having such interest have special knowledge and touch with the case. While giving effect to this object care was taken to see that such right granted against an order of acquittal does not become an instrument of undue oppression by a private party or is not used for ulterior or improper motives instead of bringing to books a really guilty person and thereby aid the administration justice. Provision for prior leave of the High Court is meant for that purpose. As at least one of the grounds given in the afore-said decision of this Court is contrary to the line of reasoning adopted by us we deem it proper to reter the case to the Full Bench to be constituted by Honourable the Chief Justice for purpose. 17. Ordered accordingly.
OPINION OF FULL BENCH 19.03.1965
Pandey, J.
18. This case comes before us on a reference made by Newaskar and Sen, JJ, who found themselves unable to concur in the view expressed in the following observations made by another Division Bench of this Court in
There are two answers to this contention. The present application for leave to appeal and the proposed appeal are by the State and not by the Forest Ranger, the complainant, secondly, Sub-section (3) of Section 417, Criminal Procedure Code, confers the right of appeal to the complainant in a case instituted upon the complaint of a private person and not upon the complaint of a public servant or of a court. The prosecution on the complaint of a Court or of a public servant acting in the discharge of his official duties being one by the State, and the state having the right of appeal in any case u/s 417(1), Criminal Procedure Code, the words ''complaint'' and ''complainant'' in Sub-section (3) can refer only to a private complaint and to a private complainant.
19. The facts of the case so far as they are necessary for this reference may be shortly stated. In virtue of the powers conferred upon the Drugs Inspector u/s 32 of the Drugs Act, 1940, he instituted, by means of a complaint filed by him, a prosecution against the Respondents for contraventing the provisions of Section 18 of that Act and thereby committing offences punishable u/s 27 there of. The Respondents, who had been convicted and sentenced to pay fines for the offences committed by them, were acquitted in appeal. The Drugs Inspector then appealed against the acquittal after applying for, and obtaining, special leave so to do under Sub-section (3) of Section 417 of the Code of Criminal Procedure. When the appeal came up for hearing before Newaskar and Sen, JJ, the Respondents raised a preliminary objection grouded upon the observations reproduced earlier that the special leave obtained in this case could not have been given to the Drugs Inspector, who, being a public servant, had filed the complaint in the discharge of his duty as a public servant. Thereupon, as indicated earlier, Newaskar and Sen, JJ made this reference.
20. We may state at the outset that in State v. Daulatsingh (Supra) the application for special leave under Sub-section (3) of Section 417 of the Code was made by the State itself. Since, as provided Sub-section (1) of Section 417 of the Code, the State could directly appeal against acquittal "in any case", including a case instituted upon a complaint, without being obliged to obtain special leave, the application could be dismissed on that short ground and it was not necessary t(sic) consider whether a public servant, who had filed a complaint in the discharge of his duty as a public servant was entitled to apply for special leave under Sub-section (3) of Section 417 of the Code. Even so, since the question arises directly and is of general importance, we proceed to consider it.
21. Section 417 of the Code reads:
(1) Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.
(3) 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.
(4) No application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1).
It is clear from Sub-section (3) that the complainant is entitled to appeal against the acquittal in any case instituted upon "complaint" only if he has obtained special leave to do so. It is no doubt true that, under Sub-section (1) the State may also appeal against the acquittal "in any case" including a case instituted upon complaint. However, the right of the State to appeal against the acquittal in a case instituted upon complaint is, as provided by Sub-section (5), subject to one limitation. Once an application for special leave has been made by the complainant and refused by the High Court, no appeal against the acquittal will lie even at the instance of the State. The basis of this restriction appears to be that the right of appeal against the acquittal recorded in a case instituted upon complaint should not be exercisable at all once the High Court has examined it and not found it a fit one for grant of special leave.
22. Sub-section (1) of Section 190 of the Code, which provides for three ways in which cognizance of offences may be taken by Magistrates, reads:
190(1). Except as hereinafter provided, any Presidency Magistrate, District Megistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
As the opening words of the Sub-section postulate, this general power is subject to restrictions such as those enacted in Sections 195, 196, 196A, 197, 198 and 199 of the Code. Further, by virtue of Sub-section (2) of section and Sub-section (2) of Section 5 of the Code, this provision is also subject to special enactments providing for initiation of proceedings for offences created thereunder. Exceptions apart, generally speaking a Magistrate may take cognizance of offences upon receiving a complaint, or upon a report in writing made by a police officer, or upon information received from a person other than a police officer or upon his own knowledge or suspicion.
23. The word "complaint" as defined in Clause (h) of Section 4(1) of the Code means:
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.
A complaint, which falls within this definition, does not cease to be such merely because it is made by a public servant in the discharge of his duty as a public servant. On the other hand, section 195 of the Code forbids cognizance being taken of certain offences therein specified except upon a complaint made in writing by the public servant or the Court concerned. Even apart from this section, there are special statutes which enact that cognizance of certain offences punishable thereunder cannot be taken except upon a complaint made by the authority therein named. In all these cases, the public servant, the Court and the named authority are regarded as complaints initiating prosecution upon complaints made by them. So, Section 200 occurring in Chapter VI, which deals with complaints to Magistrates, provides:
A Magistate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided as follows:
... ... ... ...
(aa) When the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;
It is obvious that, but for the special exemption enacted in proviso (aa) for purposes of Section 200, it would have been necessary to examine at once the public servant or the Court concerned Even so, the Magistrate taking cognizance of offences upon complaints made by the public servant or the Court concerned may, under Sections 202 and 203 of the Code, postpone issue of process for attendance of the person-complained against, direct an enquiry or investigation and even dismiss them summarily if in his judgment there is no sufficient ground for proceeding. In Section 250 of the Code, we find the expression "in any case instituted upon complaint" which may be contrasted with "in any case instituted otherwise than upon complaint" occurring in Section 245 of the Code. It may be mentioned here that, in all cases instituted upon complaint, the complinant is amenable to action u/s 250 of the Code. Only the Police Officer who makes a police report, is exempted from the operation of that section because he should not be hampered in the performance of his duty by the fear of action being taken against him under that section: Mahomad Meena(sic) v. Datattraya Balaji ILR 1946 Bom 908. Finally, all cases instituted upon complaints, irrespective of whether they are filed by public servants or Courts or private persons are dealt with alike in accordance with the procedure indicated by either Section 207 or Section 251 of the Code. In view of these considerations, except in the case of a police report, a public servant instituting a prosecution in the discharge of his duty as such public servant must be regarded as a complainant and the allegations made by him for taking action against the person complained against must likewise be regarded as a complaint.
24. The question before us is whether, in Sub-section (3) of Section 417 of the Code, a narrower meaning is ascribable to the words "complaint" and "complainant" in the sense suggested by the observations quoted in the opening paragraph. In the first place, there is a presumption that in a given statute the same words are used in the same meaning. In
It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act.
A word used in one part of an act ought not to be construed in a sense different from that which it bears in another part of the Act unless sufficient reason can be assigned for taking that view. Again, the word "complaint" has been defined in the interpretation Clause (h) occurring in Section 4 (I) of the Code. When the Legislature has defined the meaning of the word, it has expressed most authoritatively its intent and this internal legislative construction must be accepted unless the subject or context makes it necessary to depart from that meaning. So, in Vanguard Fire and General Insurance Co Ltd. v. Fraser(sic) and Ross (1990) 3 SCR 857 at page 863, the Supreme Court stated:
Therefore in finding out the meaning of the word insurer'' in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context. In view of this qualification, the Court has not only to look at the words, but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.
In the light of these principles of construction, we have examined the language of Sub-section (3) of Section 417 of the Code. Apart from the consideration that the word "any" in the expression "in any case instituted upon complaint" means ''each and every'', we do not find anything either in the subject or context which makes it necessary for us to depart from the meaning given to the word "complaint" by Clause (h) of Section 4(1) of the Code. This is also the view taken in Prasa (sic)nachary v. Chikkapilachari(sic) AIR 1959 Mys 06.. It is, no doubt possible for a public servant, who has instituted a prosecution by lodging a complaint, to make an endeavour to misuse the right of appeal but we do not consider that to be a sufficient reason for limiting the statutory meaning of the word "complaint" so as to exclude from the purview of Sub-section (3) of Section 417 all complaints other than those made by private complainants. I may add that, in such cases, the need for having to apply for, and obtain from the High Court, special leave to appeal against acquittal is a sufficient sufeguard against abuse of this right of appeal. I also think that this additional right of appeal has been cautiously given to the complainant to subserve special interests in cases in which the State Government is disinclined to prefer(sic) an appeal against acquittal.
25. Having regard to the considerations set out in the foregoing paragraphs, I am of opinion that Sub-section (3) of Section 417 of the Code applies to all acquittals recorded in cases instituted upon complaints, including those instituted by public servants in the discharge of their duty as public servants and such public servants are competent to apply for, and obtain, special leave to appeal against acquittal recorded in such cases, This, I may add, receives some support from the conclusions reached in Udit Narayan v. Ramrao AIR 1557 Pat 687,
Dixit, C.J.
26. I regret I do not find myself in agreement with the opinion recorded by my learned brother Pandey, J. I adhere to the view expressed by me in
27. In the construction of Section 417(3) Cr. P. C. general considerations as to the scope and effect of Sections 190, 200, 249 and 250 of the Code are wholly irrelevant. The question whether when under a statutory provision the court or a public servant is required to file a compaint for initiation of a prosecution such a cover can be regarded as on instituted upon a complaint for the purposes of Section 417(3) turns solely on the meaning of the "complaint" has been defined in Section 4(1)(h) Cr, P. C. as meaning "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". But, as Section 4 of the Code itself says at the very beginning, the words and expressions detailed therein shall have the meanings mentioned therein "unless a different intention appears from the subject or context". Therefore, the meaning to be given to the word "complaint", as used in the provisions of the Code, would ordinarily be that given in the definition clause. But this is not a rigid rule. It can be varied where the subject or context of the provision makes it difficult to read the word "complaint" in the sense given in the difinition clause. In Vangnard Fire and General Insurance Co Ltd. v. Fraser and Ross (1960) 3 SCR 837.; the Supreme Court no doubt said that the meaning of a word used in various sections of an Act would ordinarily be that given to it in the definition clause. But at the same time the Supreme Court emphasized that "this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context. The Supreme Court further pointed out that:
In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances.
28. If it is borne in mind that, when a public servant or a court makes a complaint in the discharge of his or its official duties and does that by virtue of some statutory provision, the prosecution is by the State and not by the Public servant or the Court in his or its private capacity, and that the object of the amendment made in Section 417 Cr. P. C. by Act No. 26 of 1955 was to give to private person a right of appeal, who had before that amendment no such right, then Section 417(3) is clearly a case in which the word "complaint" cannot be understood in the sense given to it by Section 4(1) the of the Code. The view taken in the case of Daulatsingh (Supra) that there are only two prosecuting agencies, namely, the State and a private complainant, and a complaint instituted by a public servant or a court acting in the discharge of his or its official duties is a prosecution instituted by the State, is to a certain extent supported by the observation of the Supreme Court in
On a perusal of the bare provisions of the section and the history of the law on the subject, two things are clear, namely, (1) that the legislature thought it expedient in the interest of justice and public policy that the period of six months allowed to the State Government to appeal from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the duration of the litigation which had already resulted in an order of acquittal; and (2) that in certain cases the High Court should have the power granting special leave to a complainant, as distinguished from the State Government, to come up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous terms that such an application must be made within 60 days from the date of order of acquittal.
Further it was observed-
But in so far as appeal by private prosecutor is concerned, the legislature was astute to specifically lay down that the foundation for such an appeal should be laid within 60 days from the date of order of acquittal.
(Underlining-Italics-is mine)
The use of the words "private prosecutor" in the above observation is not without significance. It is only a pointer to the fact that Section 417(3) is only concerned with the grant of leave to appeal in a case instituted upon a complaint by a private prosecutor and that it does not cover a case instituted upon a complaint made by a public servant or a Court in the discharge of his or its official duties.
29. Some reference was made at the Bar to the decisions in
30. For all these reasons, following the view expressed by me in
Golvalkar, J.
31. I have had the benefit to read the opinions of My Lord the Chief Justice as also that of Pandey J. I gave my most anxious consideration to both the opinions and feel respectfully inclined to concur with that of Pandey J., that the complainant whether he be an official filing the complaint in his official capacity as such or he be a Court, has a right to apply u/s 417(3) of the Code of Criminal Procedure for leave to file appeal against the acquittal of the accused who was prosecuted on his or its complaint.
32. Although the right to have an offender punished by due process of law is well and equally recognised both in the State as also in the injured, there are however, certain acts, both of commission and omission, which are made indicatable only at the instance of and by certain named authorities or officials and of no others. Instances of such Penal acts can be found in Sections 195 to 199 of the Code of Criminal Procedure as also in certain laws and orders, contravention of the provision of which are made punishable Their cognizance for purposes of punishing the offenders can only be taken on the complaints of certain named officials and of no other, even if the others may be aggrieved by those offensive acts. Even the State is not entitled to initiate any criminal proceedings against such offenders. Even if the offending acts may be cognizable or non-bailable, within the meaning of the Code of Criminal Procedure, position with respect to the aforesaid procedure, for initiation of prosecution remains unaffected.
33. Then, it will also have to be borne in mind that such officials or Courts are not only not entitled to delegate their right of proceeding against the offender to any other person or authority but also that no other authority, howsoever superior it may be to such officials or Courts, can proceed to bring the so called offender to book in a criminal Court unless a right to do so is expressly granted to such superior authority. See:
34. It will thus be seen that the officials or authorities or Courts, who alone are recognised by certain laws to be entitled to initiate criminal proceedings, form by themselves into a separate but additional class of complaints, having exclusive jurisdiction to bring the offender to book. This distinct class of complaint, before the amendment of the Code of Criminal Procedure in the year 1955, had also no right of appeal against the adverse decision in the Criminal Prosecution initiated by it. It was placed for that purpose on the same footing as any other complainant, and similarly had to move the State authorities concerned to file such appeal. The complainants were thus found to be at the mercy of the Stale in that matter and by themselves were helpless unless they could successfully move the higher Courts to exercise revisional jurisdiction and disturb the adverse decisions. Even then such interference by the revisional Courts in these revisional proceedings was not only rare but exceptional and limited. The higher superior Courts could only disturb that adverse decision and call upon the lower subordinate Courts to rehear the matter and decide afresh. It was, therefore, to remove this unfair and unwarranted disability, that the Code of Criminal Procedure was suitably amended by providing a right of appeal to the complainants also. But it is subject to this safeguard that such right has been made subject to prior leave to appeal being granted by the Appellants Court. This safeguard had to be provided so as to prevent Court''s prestige being made the sport of personal possesions, while in the case of prosecution by the State it being always presumed that appeal would be filed with due deliberations and circumspection and to exercise right of appeal always in furtherance of the cause of justice rather than for personal ends. This exceptional privilege of filing an appeal, with leave, it will be seen, is conferred in the case instituted on a complaint, the provision in that respect makes no distinction, in its own terms, between one complainant and another, whether the complainant is an official or a Court or a common person. A case can be said to be instituted on a complaint in a Court only when the Court takes cognizance of the offence alleged therein. It is the taking of the cognizance by the Court of an offence alleged in the complaint which is the deciding factor while considering whether a case is or is not instituted on a complaint. See:
35. If the Legislature intended to equate the official or the Court with the State in the matter of exercise of right of appeal as provided u/s 417(1) of the Code of Criminal Procedure, it could easily do so at the time of amendment of Section 417 in 1955. It cannot be said that such complainants could before the amendment file appeal in their own name or rights. It cannot also be urged that such complaints still continue to be under the mercy of the State in the matter of filing an appeal against the acquittal. Therefore, if such a right of appeal was conferred with the aforesaid avowed purpose, and since the law in this matter makes no distinction as such between one complainant and another it is not understood why one of the specie of complainant, meaning officials and Courts, should be separated from its genus and equated with the State and denied right of appeal in its own rights but only to be exercised through the State.
36. The use of the expression "private complainant" in the case of Kaushalya Rani v. Gopalsingh AIR 1964 SC 26 (sic), if I may say so with greatest respect, was only with a view to distinguish that class of prosecuting agency from the "State" which is another such agency but without excluding the officials or Courts from the category of "complainants". The expression "private complainant" has no recognition as such in law and in my humble opinion it has been used as one may have used in the common parlance though in law not accurately, as one distinct from the State In the context of that case also, in my opinion, no other meaning can be ascribed to that expression.
37. Thus, respectfully agreeing with my learned brother Pandey J., I hold that the word "complainant" in Sub-section (3) of Section 417 of the Code of Criminal Procedure refers to all those who file or are entitled to file a complaint as defined in Section 4 (h) of the said Code, without any exception with respect to those who file complaints in the discharge of their duty as public servants.
