JUDGMENT This appeal arises out of the judgment of the Judicial First-Class Magistrate, Nagarkurnool, acquitting respondents 2 to 7 of an offence under section 447, Indian Penal Code. A private complaint was preferred before the Magistrate by the complainant alleging that on the morning of 22nd September, 1964, the six respondents trespassed into his land and ploughed the same. The Magistrate on a consideration of the evidence placed by the complainant held that the accused had not committed any offence so as to bring them within the mischief of section 447, Indian Penal Code. Against the acquittal, the complainant filed an application on 2nd January, 1965 for Special Leave under section 417(3), Criminal Procedure Code and the application came up for hearing on 23rd June, 1965. On that date leave was granted to appeal against the order of acquittal and hence this appeal before this Court. The learned Counsel appearing for the respondents has brought to my notice and it is admitted also by the Counsel appearing for the complainant that the complainant died on 27th February, 1965 even before the Special Leave application to appeal against the order of acquittal was ordered. Mr. Balakrishnamurthy appearing for the complainant has argued that the appeal does not abate under section 431, Criminal Procedure Code and that the fact that the complainant died even before the Special Leave was granted should not make any difference. In support of his contention that the death of the complainant does not necessarily involve in the abatement of an appeal he invited my attention to a decision of the Madras High Court in Re. Narayana Naick (1931) I.L.R. 54 Mad. 768 : 61 MLJ. 125. The view taken by Jackson, J., in that case is that there is no principle of general application that a private complaint abates on the death of the complainant. In Panchu Swain v. Emperor A.I.R. 1943 Pat. 379, the Patna High Court observed : “There is nothing in the Criminal Procedure Code to warrant the view that there is abatement of a criminal proceeding on the death of the complainant. Though a case may be started on the complaint of any particular individual and though that case may be compoundable it is erroneous to compare the case to a civil action where the cause of action is personal to the plaintiff. Though a case may be started on the complaint of any particular individual and though that case may be compoundable it is erroneous to compare the case to a civil action where the cause of action is personal to the plaintiff. The cause of action in a civil suit bears no analogy to an offence, once a criminal case is started, be it upon a complaint or not, the proceedings must be carried on according to the provisions of the Criminal Procedure Code. Consequently, a case under section 323, Indian Penal Code, can be proceeded with in spite of the death of the complainant.” Sharfuddin Ahmed, J., in Criminal Appeal No. 222 of 1961 disposed of on 19th November, 1962 held that a criminal appeal filed under section 417, Criminal Procedure Code, does not abate. It is on the strength of these decisions Mr. Balakrishnamurthy contended that the appeal should be heard notwithstanding the death of the complainant. The facts of this case are not similar to the cases referred to above. Those were cases where the complainant died during the pendency of the proceedings and the death of the complainant made no difference. In this case, the proceedings before the Magistrate terminated on the date when the Judgment was delivered, that is, on 26th October, 1964 acquitting respondents 2 to 7. Complainant has no right of appeal as such against the acquittal of the respondents except under section 417(3), Criminal Procedure Code. What the complainant did in this case was to make a Special Leave application on 2nd January, 1965 for permission to prefer an appeal against the order of acquittal of the Magistrate and he died on 27th February, 1965 even before the application could come up for hearing. It appears that the advocates appearing for the complainant as well as for the respondents did not know on 25th March, 1965 that the complainant had expired on 27th February, 1965 with the result that the fact of the death of the complainant could not be brought to the notice of the Court. This Court on the strength of the application already made under section 417(3), Criminal Procedure Code, granted leave to appeal against the acquittal of the respondents. Therefore, the question is whether the appeal is competent and could be prosecuted. This Court on the strength of the application already made under section 417(3), Criminal Procedure Code, granted leave to appeal against the acquittal of the respondents. Therefore, the question is whether the appeal is competent and could be prosecuted. It is not a civil action and therefore the question of the legal representative of the deceased complainant coming on record and prosecuting the case will not arise The Advocate on record can only represent the complainant but the complainant in this case died even before the date when the Special Leave application was allowed and permission granted to present the appeal to the High Court. On the date of the death of the complainant (27th February, 1965) no proceedings were pending in this Court in the sense that leave was not granted by this Court to prefer an appeal against the order of acquittal. The mere fact that an application under section 417(3) was pending will not give the complainant a right of appeal unless that application is allowed by this Court. In other words, there was no proceeding pending against the respondents on the date of his death for the reason that Special Leave was not granted by then. It is only when Special Leave is granted it can be said that proceedings against the respondents are pending. In other words, the institution of the proceedings against the respondents will take effect only from thee date on which Special Leave was granted and will not take effect from the date when the application was filed for Special Leave. While it is true there could be no abatement of the appeal on the death of a complainant, the question of such proceedings being kept alive in a Court will not arise when the person dies even before his appeal could be admitted. The right to prosecute or proceed against the respondents would arise only in the event of a Special Leave application being allowed and not otherwise and when a complainant dies even before the Special Leave application comes up for hearing, the question of further prosecuting the proceedings will not arise. This appeal in my view is therefore incompetent and not maintainable. G.S.M.-----Appeal not maintainable.