iminal Appeal No166 of 1967
2 Appeal by special leave from the judgment and order dated November 28 1966 of the Mysore High Court in Criminal Peti tion No 610 of 1966
V K Sanghi and M section Narasimhan for the appellant
section section Javali and M Veerappa for respondents Nos 1 and 2
R Gopalakrishnan for respondent No 3
section P Nayar for respondent No 4
The Judgment of the Court was delivered by Hidayatullah CJ
This is an appeal by special leave against the judgment and order of the High Court of Mysore dated November 28 1966 in Misc
Criminal Petition No 610 of 1966
By that order the High Court held that the present appellant Bhimappa had no locus standi to invoke section 4173 of the Code of Criminal Procedure and to ask for special leave to file an appeal against the acquittal of the respondent
The appellant questions the correctness of the order
Bhimappa appellant had a house at Athni Taluka Belgaum District
It stood in the name of his eldest son and his two other sons lived in one part of the house and the other part was let out to the first respondent Laxman who ran a boarding house and also lived there with his wife and children and his mistress Champevva the second respondent
No rent was fixed but the sons of Bhimappa used to have their meals with respondents Nos 1 and 2
Bhimappa asked his tenant to vacate the house as he wanted to reside in it himself and his son Yamnappa PW 14 wanted space for a godown for 400 bags of groundnut purchased by him
The first respondent was asked to vacate a portion of the house but was reluctant
It is not necessary to give the details of what happened further
Suffice it to say that the house was set on fire to cause loss to Bhimappa
All efforts to save the house failed and it was burnt down
Yamanappa then filed a report in the police station
The police arrested respondents Nos 1 and 2 and submitted a charge sheet against them in the court of Junior Magistrate Athni
Bhimappa was dissatisfied that the police had not prosecuted Mallappa respondent No 3 also and he filed a complaint against him in the same court
The magistrate inquired into the two cases together and finding a prima facie case established committed the first two respondents and the third respondent separately to the Court of Sessions
The three respondents asked that the two cases be consolidated and a combined charge be framed in the case
3 The two sessions cases were numbered as Sessions Trials Nos 79 80 of 1965
They were tried together and the Sessions Judge Belgaum by his judgment July  13 1966 held the respondents not guilty and acquitted them
The appellant then applied to the High Court of Mysore under section 4173 of the Code of Criminal Procedure for special leave to appeal against the acquittal of the three respondents
With the petition he filed a memorandum of appeal
The High Court held  on November 28 1966 as follows  The petitioner has no locus standi to prefer an appeal when the State had prosecuted the respondent in the Sessions Court
This petition is dismissed
Sd H Hombe Gowda Chief Justice Sd M Santhosh Bhimappa filed also a revision application which was dismissed on December 5 1966 by C Honniah J Bhimappa s request for a certificate was also rejected
He now appeals to this Court
His contention is that he had a right to move the High Court unders
4173 of the Code of Criminal Procedure for special leave as the order of acquittal was passed in a case instituted upon his complaint
The High Court could not therefore hold that he had no standing to move the High Court under section 4173 of the Code of Criminal Procedure
Sub section 3 of section 417 as an amendment was introduced by Act XXVI of 1955
Previously the right of appeal against acquittal belonged only to the State Government
By the amendment this right is also conferred on a complainant if the order of  acquittal is passed in any case instituted upon complaint
The sub section may be read here 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
 Under sub section 4 the application has to be made within 60 days from the date of the order of acquittal while under sub section 5 it the application under sub section 3 for the grant of special leave to appeal from the order of acquittal is refused no appeal from that order of acquittal shall lie at the instance of the State Government
4 The short question in this case is whether the sessions case Started on the complaint of Bhimappa entitles him to move the High Court for special leave a against all the three respondents or b at least against respondent No 3
The answer to this question depends upon whether we can say that there was a case instituted upon a complaint by Bhimappa in which an acquittal was recorded for these are the words of the sub section and also the condition precedent to the right
The word case  is not defined by the Code but its meaning is well under stood in legal circles
In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to have committed In offence
In other contexts the word may represent other kinds of proceedings but in the context of the sub section it must mean a proceeding which at the end results either in discharge conviction or acquittal of an accused person
What is meant by instituted  may next be explained
There are three different ways in which cognizance is taken by Magistrates of offences
This is stated in section 190 of the Code
They are a upon receiving a complaint of the facts which constitute an offence b upon a report in writing of such facts made by any police officer and 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
 The third sub section therefore obviously refers to a case in which cognizance is taken upon a complaint of facts constituting an offence
The word complaint  has been defined in section 41h and means an allegation made orally or in writing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown has committed an offence but it does not include the report of a police officer
The word complaint  has a wide meaning since it includes even an oral allegation
It may therefore be assumed that no form is prescribed which the complaint must take
It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action
Section 1901a makes it necessary that the alleged facts must disclose the commission of an offence
The Code then proceeds to provide different procedures for different cases arising under section 190 and also in relation to the 5 seriousness of the offence
Chapter XVI deals with proceedings instituted upon a complaint Chapter XVIII with inquiries into cases triable by the Court of Session or the High Court Chapter XX with the trial of Summons cases by Magistrates Chapter XXI with the trial of Warrant cases by Magistrates Chapter XXII with summary trials and Chapter XXIII with trial before High Courts and Courts of Sessions
The offence here was mischief by fire with intent to destroy a house etc
punishable under section 436 IPC
This offence is triable7 exclusively by the Court of Session
Section 207 of the Code of Criminal Procedure provides  Procedure in inquiries preparatory to commitment In every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court or in the opinion of the Magistrate ought to be tried by such Court the Magistrate shall a in any proceeding instituted on a police report follow the procedure specified in section 207A and b in any other proceeding follow the procedure specified in the other provisions of this Chapter Under section 206 the Magistrate is required to commit an accused to the Court of Session for trial
In cases triable by the Magistrate himself he has to follow the procedure for trial of cases according to the other procedures mentioned earlier by us
As this was a case for the application of sections other than section 207 A it fell under section 208
That section provides for cases of complaint and the is complainant has to be heard when the accused appears or brought before the Magistrate who has to take such evidence as may be produced in support of the prosecution or in behalf of the accused or as may be called by the Magistrate
Then under section 209 the accused may be discharged unless the Magistrate con siders it necessary that the person should be tried before himself or some other Magistrate in which case he shall proceed accordingly
If he considers that there are reasons to commit the accused he shall frame a charge explain it to the accused obtain from the accused a list of his defence witnesses
The Magistrate may in his discretion examine any of these witnesses and then commit the accused to stand his trial before the Court of Session or if satisfied that there are no grounds for committing the accused
 he may cancel the charge and discharge the accused
It will be noticed that in a case involving an offence triable exclusively by the Court of Session the procedure under sections 206 220 6 has to be followed if the complaint is filed initially
There are other sections in the Chapter and other Supplementary provisions Which are not relevant to the discussion and therefore reference to them is omitted here
The position regarding other cases triable by the Magistrate himself or by another magistrate are laid down in Chapter XVI
There the magistrate shall examine the complainant and the witnesses present if any
The Magistrate may even send the case to the police for investigation under section 1563 if he is empowered to act under section 190
This procedure of course does not arise in cases in which the trial is of an offence triable by the Court of Session
As we are not concerned with the problems arising under Chapter XVI we refrain from expressing an opinion on the various aspects of the problem arising under that Chapter
For that reason we do not refer to cases which were mainly concerned with trials before Magistrate
In the present case the police had put up a chargesheet against two respondents only
Bhimappa filed a complaint in which he charged these two respondents and respondent No 3 with the same offence of mischief by fire but with the aid of section 34 IPC As he had charged the three respondents with having entered into a Criminal Conspiracy a charge under section 120 B IPC was also framed while committing the accused to the Court of Session
Mallappa was also charged under section 436 read with section 109 IPC for abetment of the offence by the other accused
The two cases in the Magistrate s Court were registered under their own numbers but were tried together and were committed separately
In the Court of Session they were also registered separately and bore numbers Sessions Cases Nos
79 and 80 of 1965
Both the cases ended in acquittal
Bhimappa applied for special leave in both cases to file an appeal under section 4173
His right to ask for special leave was not accepted in the High Court
Now there can be no manner of doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant
There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions trial
The case of Bhimappa proceeded on its own number and although evidence was led in both the cases together the acquittal was recorded in each of the two cases
The police did not present a charge sheet against Mallappa and the trial of Mallappa can be said to be in the other case and not in the case filed by the police
In this view of the matter it is quite plain that Bhimappa was entitled to move the High 7 Court for special leave in his own case
The order saying that he had no standing cannot therefore be sustained
Bhimappa had also applied for revision and his application was rejected
He applied for special leave against that order but leave was refused by this Court
It was argued that that must conclude the matter
We do not agree
Bhimappa s statutory right to move the High Court could not be lost by reason of the revision
The result of the revision therefore had no bearing upon the matter
Bhimappa was thus entitled to have a hearing of his petition for special leave under section 417 3 of the Code
Whether he could ask for leave against Malappa aloneor against the other two because the charge under section 120 B IPC was framed against all the three respondents on his complaint is a point which we do not decide because it will be for the High Court to consider the matter when his petition is considered and only if it is allowed
We accordingly set aside the order of the High Court and remit the case for consideration of the petition under section 4173 filed by Bhimappa
RKPS Appeal allowed


Summary:
The appellant s house was set on fire and burnt down
As a result of a report filed by his son the police arrested Respondents 1 and 2 and submitted a charge sheet against them
The appellant was dissatisfied that the police had not prosecuted Respondent No 3 also and he filed a complaint against him in the same Court
The Magistrate inquired into the two cases together and committed separately the first two respondents and the third respondent separately to the Court of Sessions
After the Sessions Judge had held all the three respondents not guilty and acquitted them the appellant applied under section 4173 Cr
PC for special leave to appeal against the acquittal of the three respondents but this petition was dismissed by the High Court on the ground that the petitioner had no locus standi to prefer an appeal when the State had pro secuted the respondents in the Sessions Court
A revision application filed by the appellant was also rejected
On appeal to this Court HELD  The appellant was entitled to have a hearing of his petition for special leave under section 4173 and the case must therefore be remitted to the High Court for this purpose
The answer to the question whether the appellant had a right to move the High Court for special leave under section 4173 depended upon whether there was a case instituted by him upon a complaint in which an acquittal was recorded for this is the requirement of the special section and also the condition precedent to the right
4 B
On the facts there could be no doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant
There could be no question of merger because the identity of the two cases was maintained right upto the end of the Sessions Trial
The case of the appellant proceeded on its own number and although evidence was led in both cases together the acquittal was recorded separately in each of the two cases
The appellant was therefore entitled to move the High Court for special leave in his own case
6 G The fact that the appellant had also applied for revision which was rejected and had applied for special leave against that order which was refused by this Court did not mean that that must conclude the matter
The appellant s statutory right to move the High Court could not be lost by reason of the revision and the result of the revision had no bearing upon the matter