JUDGMENT D.P. Uniyal, J. - This is a complainants appeal from an order of acquittal under Section 417(3) of the Code of Criminal Procedure. Seven persons were committed to stand their trial under Sections 147, 148, 323, 324 and 325 read with Section 149, I.P.C. for having formed an unlawful assembly in the after-noon of 2nd of July, 1959 in Mauza Kareru Baksar police-station Lalkurti, district Meerut and for having in prosecution of the common object of the said unlawful assembly committed marpit with lathis and ballams on Asa Ram and his three brothers Phool Singh, Ziley Ram and Tarif Singh and thereby causing simple and grievous hurt to them. 2. The learned Temporary Civil and Sessions Judge, Meerut, who tried the case acquitted the accused of all the charges and held that the prosecution case was not free from doubt. 3. The learned counsel for the respondents raised a preliminary objection regarding the maintainability of the appeal against the acquittal of respondents 1 to 5 on the ground that the case against them had been initiated on the basis of a charge-sheet submitted by the police, and that a complaint subsequently filed by Asa Ram in respect of the same occurrence against seven persons including the above named five respondents could not have the effect of making it a case instituted upon a complaint. 4. The facts are that a charge-sheet was submitted by the police on 29-9-1959 against the aforesaid five respondents only but no action appears to have been taken by the Magistrate to summon the accused persons. Later when a complaint was filed against the said five respondents and two others the Magistrate examined the evidence produced by the complainant under Section 302, Cr.P.C. and ordered the accused to be summoned. The Magistrate purported to amalgamate the police-charge-sheet and the complaint filed by Asa Ram and proceeded to deal with the case as one instituted upon a complaint. 5. The record of the Magistrates court goes to show that no action was taken by the Magistrate on the charge-sheet submitted by the police as required under Section 207A of the Code. On the other hand, when subsequently a complaint was filed the Magistrate took cognizance of the offence and issued summons to seven persons including the five respondents aforesaid. 6. On the other hand, when subsequently a complaint was filed the Magistrate took cognizance of the offence and issued summons to seven persons including the five respondents aforesaid. 6. The question arises whether the present appeal against acquittal is one in a case instituted upon complaint, within the meaning of sub-Section (3) of Section 417, Cr.P.C. The expression "any case instituted upon complaint" has been interpreted by a Division Bench of the Calcutta High Court in Sk. Osman Gani v. Baramdeo Singh, AIR 1959 Cal. 145 . S.N. Guha Ray, J. delivering the judgment of the Court observed as follows :- "The expression any case instituted upon a complaint used in Section 417(3) of the Code of Criminal Procedure means either of two things. It may mean a case in which the first step taken to move the Magistrate is a petition of complaint whether or not cognizance is taken upon it or it may mean a case in which not merely a petition of complaint is filed but the Magistrate takes cognizance upon it. The question is which of these two meanings can be ascribed to the expression as used in Section 417(3) of the Code. From an examination of these sections it seems to be fairly obvious that the Code all along even before the amendment distinguished between two classes of proceedings or cases, one instituted on complaint and the other instituted on police report and under the amendment the distinction has become still more pronounced. The question now is whether in a case such as the present when the complainant came to Court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then on receipt of a report from the police he took cognizance it can be held that the case was one instituted on a complaint within the meaning of the expression in Section 417(3) of the Code of Criminal Procedure. I am inclined to take the view that it cannot, for the simple reason that the Code all along has been using this expression to mean a class of cases in which proceedings are initiated on the complaint itself and proceedings can be instituted only after cognizance has been taken as is quite clear from an examination of Section 190 itself. The expressions proceeding and cases in the different sections already noticed appear to me to have been used in the same sense. A case is a cause before the court and there is no cause before the court until the court initiates proceedings on the basis of it. As soon as the proceedings are initiated there is a cause before the court so that the expressions "any case instituted upon complaint must, in my opinion, mean only that class of cases where not merely the complainant comes to court with a petition of complaint but the Magistrate takes cognizance of the offence or offences alleged on the basis of that complaint". 7. The above view has found favour with the Mysore High Court in B.V. Huchanna v. N. Venkataswamy, AIR 1960 Mys. 172. The court rules that it is not sufficient for the purposes of sub-Section (3) of Section 417 if merely a complaint had been made and an order of acquittal has been subsequently passed it is also necessary that such an order of acquittal should have been passed in a "case" instituted upon complaint. Until a Magistrate has taken cognizance of an offence, there is no "case" before the Magistrate. The mere fact that there is a complaint before a Magistrate is not equivalent to there being a "case" before the Magistrate. 8. In our opinion the view expressed by the Calcutta High Court, and concurred in by the Mysore High Court, is in consonance with the true meaning of sub-Section (3) of Section 417 of the Code. We, therefore, overrule the objection. * * * 16. For the reasons given above we allow this appeal in part and set aside the order of acquittal passed in favour of Des Raj, Dhani Ram, Ram Saran, Dal Chandra and Gooder under Section 147, I.P.C. and sentence each of them to six months' rigorous imprisonment. We convict Goodar under Section 148, I.P.C. and sentence him to nine months' rigorous imprisonment. We further convict each of the above first-five named respondents under Section 323, read with Section 149, I.P.C. and sentence each of them to six months' rigorous imprisonment. We also convict them under Section 324 read with Section 149, I.P.C. and sentence each of them to six months' rigorous imprisonment. We further convict each of the above first-five named respondents under Section 323, read with Section 149, I.P.C. and sentence each of them to six months' rigorous imprisonment. We also convict them under Section 324 read with Section 149, I.P.C. and sentence each of them to six months' rigorous imprisonment. We further convict them under Section 325 read with Section 149, I.P.C. and sentence each of them to nine months' rigorous imprisonment. The sentence passed on the respondents for the various offences shall run concurrently. The acquittal of the respondents under Section 307 read with Section 149, I.P.C. is upheld. The first-five named respondents shall be taken into custody to serve out the sentences awarded to them.