GOKULAKRISHNAN, C. J. ( 1 ) THIS is a petition to quash and set aside the judgment and order dated 24-12-1985 passed by the learned Judicial Magistrate, First Class, Deesa in Criminal Case No. 497/82 acquitting the original accused Nos. 2 and 3 and to pass all other incidental and consequential orders in this regard. It is further prayed in this petition that there must be a declaration to the effect that S. 378 (4) of the Code of Criminal Procedure, 1973 is arbitrary and violative of provisions of Art. 14 of the Constitution of India. ( 2 ) THE short facts of the case are that the petitioner filed a complaint before the Police on 17-12-1982 to the effect that the nephew of the petitioner Girishkumar was beaten up by the accused when they were returning to their house at 6. 00 p. m. It is not necessary for us to give the other details of the complaint. Suffice it to say that the Police under S. 173 filed the charge and ultimately the learned Judicial Magistrate, First Class, Deesa acquitted all the three accused. Questioning the acquittal and also to declare S. 378 (4) as ultra vires the Constitution as offending Art. 14, the present Special Criminal Application has been filed. ( 3 ) MR. Raju, the learned Counsel appearing for the petitioner, pointed out the provision under S. 378 (4 ). It is in pari materia with the old S. 417 (3 ). S. 378 (4) reads as follows:"378. xxx xxx xxx (4) If such an order of acquittal is passed in any case instituted upon complaint and the High court, on an application made to it 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. "reading this and also various other provisions regarding the power of the Magistrate and the power under S. 190 and also the power to order investigation under S. 202 of the Criminal Procedure Code, the learned Counsel submitted that there is no opportunity for the complainant whose case was investigated into, by the Police and charge filed under S. 173 to approach the High court by way of an appeal. This, according to the learned Counsel, is arbitrary. This, according to the learned Counsel, is arbitrary. We are not abte to appreciate this contention for the simple reason that the petitioner in this case has filed a complaint before the Police and it is the Police that investigated the matter and filed the charge. It is open to the party concerned to select the procedure available under the Code of Criminal Procedure in filing the complaint. The Legislature, in its wisdom, has given the procedure to be adopted in cases where there is a complaint directly to the court by the complainant and cases where the Police, after investigation, files a charge before the court concerned. ( 4 ) IN a case where the right of the complainant to have the right of appeal to the High court under S. 378 (4) analogous to S. 417 (3) was questioned as discriminatory since injured himself is not having such a right, was considered by a Bench of our High court in the decision in Shushilaben v. Bhaskar, reported in (1971) 12 Guj LR 1041. In that case, the High court, after elaborately discussing the vires of S. 417 (3), has specifically held that the class of cases where the prosecution is commenced on the Police report constitutes an altogether different class and, therefore, it would be illogical to find fault with the fact that in one class of cases the accused faces peril from two quarters whereas in the other he faces the peril from only one quarter. Continuing further, the Bench has held that there is no hostile discrimination as alleged in that case and proceeded to say :"all who are similarly situated have been conferred a similar right. It cannot, therefore, be said that any hostile discrimination has been practised. Again, as discussed earlier, there is good principle underlying the conferment of the right on the complainant inasmuch as the realities of the situation show that the complainant is the very person who has evinced the most active interest and played the key-role in setting in motion the machinery of the Criminal court. It was that person to whom the prosecution owed its origin and it is on that person that a right has been conferred to continue the proceeding in the court of appeal to ensure that a guilty person does not escape. Under the circumstances, we are unable to assent to the proposition that sub-sec. It was that person to whom the prosecution owed its origin and it is on that person that a right has been conferred to continue the proceeding in the court of appeal to ensure that a guilty person does not escape. Under the circumstances, we are unable to assent to the proposition that sub-sec. (3) of S. 417 results in hostile discrimination being introduced against the person who has been directly injured or aggrieved. This ground of attack must also be repelled. "this principle can be very well applied to the contention raised presently in this petition also. The complainant approached the Police and it is the Police who investigated and filed the report. Correctly, there is no provision for the complainant in such cases to come forward with an appeal. In criminal matters, it should be noted that it is the State which has been considered as the custodian of the public interest and ordinarily it should not have been conferred on a complainant at all. If such powers are vested in the State, there is reasonable assurance that appeal against acquittal would be resorted to only in fit cases and with a view to secure the ends of justice solely from the point of view of public interest. That is why the Legislature has enacted the safeguard even in an appeal contemplated under S. 378 (4) by making a provision for obtaining a special leave under sub-sec. (3) of S. 378. Mr. Raju also cited the decision in Bhimappa v. Laxman, reported in AIR 1970 SC 1153 : (1970 Cri LJ 1132 ). We do not think that the said decision will be of any help to the contentions he has put forth in this Special Criminal Application. For all these reasons we do not find any substance in the contention that the provision under S. 378 (4) is ultra vires the Constitution and offends Art. 14 of the Constitution. We are in complete agreement with the principles enunciated in the decision in Shushilaben v. Bhaskar, reported in (1971) 12 Guj LR 1041 and accordingly this Special Criminal Application is dismissed. We make it clear that as far as the merits of the case are concerned, we are not passing any opinion on the same and it is open to the petitioner to seek appropriate remedies in respect of the merits of the case before appropriate forum. We make it clear that as far as the merits of the case are concerned, we are not passing any opinion on the same and it is open to the petitioner to seek appropriate remedies in respect of the merits of the case before appropriate forum. Application dismissed. .