Judgment G.N.Prasad, J. 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. In order to appreciate the contention of Mrs. Lall, it is necessary to mention the following facts. In respect of an occurrence alleged to have taken place at about 7 P. M, on the 9th June 1959, a first information report was lodged by the chowkidar (P. W. 5) at Sikandara police-station in the district of Monghyr at 1 P. M. on the 10th June, 1959. The investigation was conducted by Bishun Prasad Jha (P. W. 14), the officer-in-charge of the police-station. After completing the investigation, which was also supervised by higher police officers, P. W. 14 submitted a final report characterising the prosecution case as true but the accusation against the accused as false. This final report was put up before the learned Subdivisional Magistrate on the 14th August, 1959, when an order was passed discharging the accused persons. It appears that on the previous day, viz., the 13th August, 1959, the present appellant had filed a complaint before the learned Sub-divisional Magistrate making certain allegations against the police investigation and praying that the accused persons named therein be summoned to take their trial. On the 13th August, 1959, itself, the complainant was examined on solemn affirmation. The order of discharge was passed on the 14th August, 1959, in the absence of the complainant and without the complaint having been put up-before the learned Subdivisional Magistrate. On the 13th August, 1959, itself, the complainant was examined on solemn affirmation. The order of discharge was passed on the 14th August, 1959, in the absence of the complainant and without the complaint having been put up-before the learned Subdivisional Magistrate. This matter was brought to the notice of the learned Subdivisional Magistrate on the 14th September, 1959, on which date the learned Sub-divisional Magistrate recalled the order of discharge and, after consideration of the police report, formed the opinion that a prima facie case had been made out against the accused persons and directed the police to submit a chargesheet against the accused persons. In accordance with the aforesaid direction of the learned Subdivisional Magistrate, the police submitted charge sheet against the three respondents whose names were also-mentioned in the first information report lodged by the chowkidar (P. W. 5). On the 3rd November, 1959, the learned Subdivisional Magistrate passed the following order;: C.S. received. Cognizance taken under Sections 458/379 I.P.C. To Sri E.M. Pyster, Magistrate 1st Class for disposal. After receipt of the record, the learned trying Magistrate ordered the issue of processes against the respondents and called upon the Assistant District Prosecutor (A. D. P.) to supply "copies of the relevant documents" to the accused persons. After the respondents had appeared and the copies of the relevant documents had been supplied to them, the learned Magistrate framed, charges on the 17th December, 1959, against the respondents under Sections 458 and 379, Indian Penal Code. Meanwhile, on the 3rd December, 1959, an order was passed amalgamating the complaint case with the G.R. case which had already been transferred to Mr. E.M. Pyster for disposal. On the 24th March, 1960, a petition was filed before the learned trying Magistrate by the complainant stating that since the complaint case had been amalgamated with the State case, five other accused persons named in the petition of complaint, in addition to the three respondents already in the trial of this case, should also be summoned for trial. But the learned trying Magistrate did not entertain this prayer of the complainant observing that the point to be kept in mind is that the learned S.D.O. has not taken cognizance of the occurrence but has simply ordered amalgamation of that case with this G.R. case. But the learned trying Magistrate did not entertain this prayer of the complainant observing that the point to be kept in mind is that the learned S.D.O. has not taken cognizance of the occurrence but has simply ordered amalgamation of that case with this G.R. case. Thereafter, the trial proceeded as a State case against the three respondents and ultimately it resulted in their acquittal, giving rise to the present appeal. 4. 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. 5. The subsequent orders also leave no room for doubt that it was a case instituted upon a police report. The prosecution was conducted by the Assistant District Prosecutor. The provisions contained in Sub-sections (1) and (2) of section 251A were followed by supplying the copies of the relevant papers to the respondents. Thereafter, charges were framed in accordance with Sub-section (3) of sec. 251A. In other words, the procedure adopted was that provided in Chapter XXI of the Code for trial of cases instituted on a police Report. The provisions contained in Sub-sections (1) and (2) of section 251A were followed by supplying the copies of the relevant papers to the respondents. Thereafter, charges were framed in accordance with Sub-section (3) of sec. 251A. In other words, the procedure adopted was that provided in Chapter XXI of the Code for trial of cases instituted on a police Report. It is, therefore, amply clear that no case had been instituted upon the complaint filed by the complainant on the 13th August, 1959. 6. It is true that a formal order was passed amalgamating the complaint case with the State case, but that could not possibly have the effect of converting the State case into a complaint case. The most that can be said is that the complaint Case had lost its separate existence and it had merged with the police case which had continued to retain its identity as is apparent from the procedure adopted for the trial as indicated above. 7. Had the case been instituted upon the complaint dated the 13th August, 1959, then there would have been eight persons on trial in this case, as named in the petition of complaint, instead of only three persons as named in the first information report and in the charge sheet submitted by the police. The learned trying Magistrate was, therefore, right in his interpretation of the order of amalgamation as will appear from the order dated the 24th March, 1960. 8. Mr. Chaudhury appearing for the appellant has urged that since a complaint had been filed in the case and the order of discharge originally recorded was recalled by the learned Subdivisional Magistrate, it must follow that the case had been instituted upon a complaint. I am, however, unable to accept this contention. The only effect of the filing of the complaint was that the order of discharge passed summarily on the 14th August, 1959, was recalled and the police report was scrutinised with care and in detail. It was really upon the scrutiny of the police report that the learned Subdivisional Magistrate had decided that a case should be instituted. There is nothing in the order of the learned Subdivisional Magistrate dated the 14th September, 1959, to indicate that he had decided to call for a charge sheet in consideration of any allegation contained in the petition of complaint. Had the contention of Mr. There is nothing in the order of the learned Subdivisional Magistrate dated the 14th September, 1959, to indicate that he had decided to call for a charge sheet in consideration of any allegation contained in the petition of complaint. Had the contention of Mr. Chaudhury been correct, then the learned Subdivisionat Magistrate would have taken cognizance on the 14th September, 1959, itself, instead of on the 3rd November, 1959, after a charge sheet was submitted by the police. There is, therefore, no escape from the conclusion that the case had actually been instituted upon a police report notwithstanding the fact that a complaint had been filed. 9. Mr. Chaudhury then contended that after the complaint had been filed it was the duty of the learned Subdivisional Magistrate to have followed the procedure laid down in Chapter XVI of the Code and, if this had been done, then the case would have been one instituted upon a complaint. This argument is, however, of no avail at the present stage. In order to decide whether Sec. 417(3) of the Code is applicable or not, I have to see whether the case was in fact instituted upon a complaint, and not to embark upon an enquiry as to whether it should have been instituted upon a complaint. If the appellant had any grievance in the matter of procedure adopted in the case, then he should have moved against the relevant orders passed by the Sub-divisional Magistrate or the trying Magistrate at the different stages. The fact remains that the case was instituted upon a police report and as such the preliminary objection taken by Mrs. Lal must succeed. 10. In the result, I hold that this appeal is not maintainable, and it is accordingly dismissed.