JUDGMENT : Barman, C.J. - This criminal appeal is by a private party against acquittal in a G.R. case where the accused Respondents were charged for alleged theft u/s 379/34, Indian Penal Code. The maintainability of this appeal is challenged on the ground that the right of appeal against acquittal u/s 417(3), Code of Criminal Procedure is limited only to cases instituted upon complaint; when a Magistrate takes cognizance of an offence upon a report in writing of such facts made by the police, it is a case instituted in the Magistrate's Court on police report. 2. In the present case which admittedly was initiated as G.R. case No. 584/63 in the Court of the Subdivisional Magistrate, Bhadrak, the order-sheet of the Magistrate shows that on June 16, 1964 charge-sheet u/s 379/34, Indian Penal Code against accused Respondents was received; the Investigating Officer had not arrested the accused Respondents but only noted this names in the charge-sheet; the case was thereupon taken to the file of the learned Magistrate and cognisance taken; thereafter the learned Magistrate summoned the accused persons for appearance on July 16, 1964. 3. In support of his contention the learned Counsel appearing on behalf of the accused Respondents relied on a decision of the Calcutta High Court in Sk. Osman Gani Vs. Baramdeo Singh and Others where on an interpretation of Section 417(3), Criminal Procedure it was held that the expression 'any case instituted upon complaint' in the section must 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. As in the present case 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 a receipt of a report from the police he took cognizance. On these facts, the Calcutta High Court held that it cannot be held that the case was one instituted on complaint within the meaning of the expression in Section 417(3). On these facts, the Calcutta High Court held that it cannot be held that the case was one instituted on complaint within the meaning of the expression in Section 417(3). This argument with which I agree, is based on the reasoning that as soon as the proceedings are initiated there is a cause before the Court so that the expression 'any case instituted upon complaint' must 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; it is only when a report, that is a report u/s 173 of the Code of Criminal Procedure, is made out and the Magistrate takes cognizance of the offence that a case is brought into existence and it is only then that the case can be heard by the Magistrate. In this view of the matter I uphold the objection urged on behalf of the accused Respondents to the maintainability of the appeal. The appeal is accordingly dismissed. Final Result : Dismissed