Sita Ram v. Sitaram Prasad — 1980 DIGILAW 53 (PAT)

Judgment V. Mishra, J. 1. This appeal against acquittal has been filed by one Sita ram, who was the informant in C. R. Case No.188 of 1970 (Trial no.176/74)disposed of by Sri D. N. Joshi, Judicial Magistrate, 1st Class, aurangabad. The order of acquittal of all the 13 respondents was recorded on 18-3-1974. After obtaining leave of the Court under section 378 (4) of the code of Criminal Procedure, 1973, the appeal against acquittal was filed on 19-6-1974. On 20-6-1974, the case was placed before S. K. Jha, J. for admission but it was ordered to be placed before another Bench. On 2-7-1974, it was placed before another Bench when a fresh stamp report was called for because the stamp reporter had reported the appeal to have been time-barred. A petition for condoning the delay under section 5 of the Limitation Act was subsequently filed. On 16-7-1974, the appeal was admitted and order was passed for hearing it along with the condonation petition. The appeal has accordingly been heard by me. 2. At the out set two points have been raised, namely, that the appeal is not maintainable, inasmuch as, the case was a police case and the informant of the case has no locus standi prefer this appeal after obtaining leave under section 378 (4) of the Code of Criminal Procedure, 1973. The second point is that the appeal is barred by time. 3. For appreciating the question of maintainability, certain details are necessary. The police case was instituted on basis of the statement of Sita Ram on 11-2-1970. The police investigated the case and submitted final report on 15-4-70. A protest petition had also been filled in the meantime on 6-4-1970. On 16-4-1970 the complaint was examined on solemn affirmation and an inquiry was orderd to be conducted by a Magistrate, Sri Pathak. On 11-54970, the magistrate submitted his inquiry report finding a prima facie case against the respondents here. But on that date the order was only to place the matter with the records on the date fixed. On 2-64970, cognizance was taken after examining the final report by the Magistrate. Obviously the Magistrate rejected the report and took cognizance on basis of materials before him against the respondents. But on that date the order was only to place the matter with the records on the date fixed. On 2-64970, cognizance was taken after examining the final report by the Magistrate. Obviously the Magistrate rejected the report and took cognizance on basis of materials before him against the respondents. The last portion of this order shows that the Magistrate simply ordered the complaint petition and the inquiry report of the Magistrate to be kept on the record to form part of the same. It is further clear from this that he had not acted on that inquiry report. On 15-7-1970, an order was passed by the magistrate to say that in the case procedure prescribed by sections 252 to 259 of the Code of Criminal Procedure, 1898 will be followed. These sections provide the procedure for trial of cases instituted otherwise than on the police report. On 12.8.1970, the informant filed a petition to say that as per order no.2 dated 2.6.1970 the cognizance of the case was taken on basis of the police report and so it is the procedure prescribed by section 251-A of the Code of criminal Procedure, 1898, which should be followed. This section provided the procedure to be adopted in cases instituted on the police report. Both the parties were heard on this point and the plea of the informant was accepted as per order no.18, dated 15.8.1970. It has been specifically said in that order that as the cognizance had been taken in the case only on basis of the case diary and the final form submitted by the police, it was only desirable to adopt the procedure provided by section 251-A of the Code of Criminal Procedure, 1898. Thereafter the procedure for trial in a case instituted on police report" was adopted and ultimately the accused persons (respondents here) were acquitted on 13.3.1974. 4. The appeal in the case has, no doubt, been preferred under Sec.378 (4)of the Code of Criminal Procedure, 1973 which had by then come into force. Thereafter the procedure for trial in a case instituted on police report" was adopted and ultimately the accused persons (respondents here) were acquitted on 13.3.1974. 4. The appeal in the case has, no doubt, been preferred under Sec.378 (4)of the Code of Criminal Procedure, 1973 which had by then come into force. Sec.378 (4) of the Code reads as follows : - " (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to ic 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. " It has been seriously contended on behalf of the respondents that the case in which they have been acquitted was not instituted upon a complaint and so the provision of sub-section (4) of section 378 of the Code of Criminal procedure, 1973, would have no application and as such this appeal is not maintainable. The learned counsel for the respondents has contended that it was a police case and as such the provision of section 378 (1) of the Code of Criminal procedure, 1973 would only apply for preferring an appeal and that can be availed of only by the State Government. The learned, counsel for the appellant has tried to make out that this, was a case instituted upon a complaint and as such the appeal would be quite maintainable under Sec.378 (4) of the Code of Criminal Proeedure, 1973. For this, he placed his finger on the protest petition which had been filed on 6.4.1970, i. e. . before the police had submitted final form in the case. The complainant had, no doubt, been examined on 16.4.1970 and thereafter an inquiry a Magistrate was ordered. It has been submitted, that this amounts to take cognizance of the case and so when the cognizance was taken on the complaint petition the case should be treated as a complaint case and not a police case. The order dated 16.4.1970 only says that the complainant was examined on solemn affirmation and an inquiry by sri S. N. Pathak, Magistrate, was ordered. The Magistrate, no doubt, had the option to take cognizance of "the case on basis of the police report even after rejecting the final report submitted by the police. The order dated 16.4.1970 only says that the complainant was examined on solemn affirmation and an inquiry by sri S. N. Pathak, Magistrate, was ordered. The Magistrate, no doubt, had the option to take cognizance of "the case on basis of the police report even after rejecting the final report submitted by the police. He had also the option to consider the inquiry report at the same time. As to what the Magistrate did there is no ambiguity in the order dated 2-6.1970 The order clearly shows that he has examined only the report of the police and he has considered the pros and cons thereof. While taking the cognizance, he has not at all applied his mind to the inquiry report. It is only after taking cognizance and transferring the case to another Magistrate that he has said the complaint petition and the enquiry report of the Magistrate to the effect that a prima facie case has been made will form part of the record. ". It is, therefore, amply clear from this that the Magistrate had not considered as to what was the inquiry report of the Magistrate and what were the materials produced in the inquiry. 5 It is not only that the Magistrate at the time of taking cognizance took it as a police case, even the parties to the case took it as such. It has already been shown above that when the Magistrate passed an order for adopting the procedure in the complaint case, it was the complainant, who filed an application and got that order recalled. for getting the case tried as a police case. In this view of the matter, it perhaps, does not lie in the mouth of the complainant at this stage-to say that it was a complaint case and not police case. 6. The learned counsel for the respondents has placed reliance on the case of Harbans Singh V/s. Daroga Singh (AIR 1962 Patna 27 ). In this view of the matter, it perhaps, does not lie in the mouth of the complainant at this stage-to say that it was a complaint case and not police case. 6. The learned counsel for the respondents has placed reliance on the case of Harbans Singh V/s. Daroga Singh (AIR 1962 Patna 27 ). This is an authority 011 the point that where a complaint case is amalgamated with the case instituted on the police charge sheet, the effect of the order of amalgamation is that the complaint is merged with the police case and it loses its identify and separate existence, and, as such, the case cannot be said to have been "instituted upon a complaint within the meaning of sub section (3) of section 417 of the Code of Criminal Procedure, 1898," Sec.417 (3) of the Code of criminal Procedure, 1898 is equivalent to section 378 (4) of the Code of Criminal procedure, 1973. The wordings of section 378 (4) of the Code of Criminal procedure, 1973 also show that it is institution of the complaint which is material. The instant case stands on a different footing than the case reported because there has not been an order of amalgamation. The records of the inquiry had been ordered to be kept on file. 7. The learned counsel for the appellant has relied on the decision in the case of Jamuna Singh V/s. Bhadai Shah ( AIR 1964 SC 1541 ). In that case the informant Bhadai had filed a petition of complaint in the Court of the Sub-divisional Magistrate on November 22, 1956. The Magistrate after examining him on solemn" affirmation made an order asking the Sub Inspector of Police, baikunthpur to institute a case and report on December 12, 1956. Ultimately, charge-sheet was submitted by the police and the accused persons were committed to the court of session. The sessions trial ended in acquittal. In this case, it was held that the cognizance had been taken on complaint and not on police report. There can be no dispute on this point. The case there was entirely different from the instant case. Moreover, what was being decided there was as to when cognizance was taken which is something different from the institution of the case. In this case, it was held that the cognizance had been taken on complaint and not on police report. There can be no dispute on this point. The case there was entirely different from the instant case. Moreover, what was being decided there was as to when cognizance was taken which is something different from the institution of the case. In the case of Kanhai Raut V/s. Budhan Mahto ( 1978 BBCJ 136 ), it has been held that the examination of the complainant on solemn affirmation in a complaint case means that the cognizance has already been taken even before he has been examined. That authority also does not seem to have any application in the instant case. 8. In view of my discussions aforesaid, I would find that this appeal is not maintainable under Sec.378 (4) of the Code of Criminal Procedure, 1973, as the original case was not instituted on complaint. 9. In view of my findings on the point of maintainability, it is not at all necessary to discuss the question of limitation. The appeal is accordingly dismissed. Appeal dismissed.