Judgment. One Macherla Peda Kondaiah filed a private complaint in P.R.C. No. 2 of 1958 on the file of the Judicial Second Class Magistrate, Repalle. Subsequently, he died. His brother, Macherla China Kondaiah (P.W. 1) continued to prosecute the case. Ultimately, the learned Magistrate committed 26 accused in that case to the Sessions Court, Guntur Division, for trial. The learned Additional Sessions Judge, Guntur, framed 36 charges against the 26 accused in Sessions Case No. 48 of 1958 on his file. After full trial in that case, the learned Additional Sessions Judge acquitted everyone of the accused of all the charges framed against him. Mecherla China Kondaiah was examined as P.W. 1 in that case. He filed C.M.P. No. 203 of 1959 in this Court for leave to file an appeal against the order of acquittal. Special leave was granted by an order of this Court dated 24th February, 1959 and the appeal filed by him was taken on file as Criminal Appeal No. 231 of 1959. No appeal was filed by the State against the acquittal of any of the accused. The prosecution examined 30 witnesses and marked documents, Exhibits P-1 to P-58. The prosecution story was briefly to the following effect: Ilavaram is a village which is a few miles from Repalle. The prevailing community in that village consists of Padma Saleelu who were about 3,000 strong. Yadavas and Gowdas form a small minority numbering about 200 or 300. In the elections during the year 1952, Padma Saleelu (weavers) supported the Congress party whereas the Yadavas, and Gowdas supported the Communist party. Subsequently, in the year 1955, the Padma Saleelu got a drama called ‘Sasirekhaparinayam’ enacted in which there was some comic scene introduced which reflected badly on the Yadavas who were referred to as ‘Gollas’ and whose ancestry was mentioned to be as uncertain as that of their sheep. The Yadavas felt it to be a great insult. Subsequently, the Padma Saleelu enacted some other drama. A-14, who is a Yadava, filed a petition before the Magistrate for stopping the performance of a play (drama) called ‘Kalidasu’. In due course, this petition reached the Sub-Inspector of Police who investigated into it. In the morning of 21st December, 1955, the Sub-Inspector camped at Vellatur, sent for the Padma Saleelu as well as Yadavas and took an undertaking from the Padma Saleelu not to humiliate the Yadavas any further. In due course, this petition reached the Sub-Inspector of Police who investigated into it. In the morning of 21st December, 1955, the Sub-Inspector camped at Vellatur, sent for the Padma Saleelu as well as Yadavas and took an undertaking from the Padma Saleelu not to humiliate the Yadavas any further. The very next day, a big rioting took place in the village in which two groups, viz., Padma Saleelu on one side and Yadavas and Gowdas on the other, had a clash with the result that several people on both sides got injured. The party of Yadavas and Gowdas were the aggressors. They attacked the Padma Saleelu and injured a number of them. The Padma Saleelu acted in exercise of their right of private defence. In the course of the attack, A-14 beat P.W. 26 causing very severe injuries. The doctor (P.W. 29) in charge of the hospital at Repalle, examined the injured and issued wound certificates for the following injured persons: (a) P.Ws. 1 to 15 and 26; (b) A-4, A-5, A-8, A-13, A-15, A-18, A-19, A-20, A-21, A-22, A-23; (c) D.Ws. 2, 5, 8 and one Tata Raghavulu who had penetrating stab wound few inches below the chest as a result of which he later died. The Village Munsiff (P.W. 28) sent the report, Exhibit P-1, to the police station. On receipt of it, the Head Constable (P.W. 30) went to the village. He found A-22 and A-23 injured and sent them to the hospital. The Circle Inspector who came to the village the same day investigated the case. He examined P.Ws. 1, 15 and 26 and sent them to the hospital. He, however, was not examined as a witness because, at the time of the trial, he was blind and he was unable to examine and identify the persons. P.W. 26, Bhattu Kotaiah, is an old man of 70 years. His brother died on 21st December, 1955. On the next day, i.e., 22nd December, 1955, he went cut from his house to secure vegetables for performing the second-day funeral ceremony of his brother. On his way, he saw the rioting which was going on near the well close to the house of the karnam. Then, A-13 beat him with a stick on the head and A-14 beat him with a stick across the chest. P.W. 26 vomitted blood and fell down unconscious. On his way, he saw the rioting which was going on near the well close to the house of the karnam. Then, A-13 beat him with a stick on the head and A-14 beat him with a stick across the chest. P.W. 26 vomitted blood and fell down unconscious. He was taken to the hospital at Repalle and later to the hospitals at Tenali and Guntur. He sustained severe injuries which were described by the doctor (P.W. 29) in the wound certificate, Exhibit P-17. The injuries included the fracture of several ribs and are grievous in nature. Similarly, A-6 beat P.W. 14 who also sustained grievous injuries which are described in the wound certificate, Exhibit P-15. A-7 beat P.W. 6 and the latter sustained injuries described in the wound certificate, Exhibit P-7 by the doctor (P.W. 29). Various other injured prosecution witnesses were beaten by various accused as deposed to by them (P.Ws.). When examined, all the accused denied the offence. They stated that it was the Padma Saleelu who were the aggressors, that they attacked the Yadavas and Gowdas and caused lot of injuries to them and that one of those victims, Tata Raghavulu died of a stab injury which was inflicted by one of the Padma Saleelu. The accused examined ten defence witnesses. Of these, D.W. 1 is an old woman who is the grandmother of A-11, A-22, and D.W. 2. D.Ws. 1and 2 deposed that when they were going homewards from the rice mill after getting some paddy hulled along with A-11 and A-22, at the corner of the house of Macherla Peda Kondaiah, Macherla Venkata Rao along with others obstructed and removed the rice bags from them and that when D.W. 1 objected, two persons beat D.W. 2 with stick on the head and that some of the assailants pushed A-11 into a ditch and beat him with sticks, that D.W. 1 thereupon raised an alarm and ran away and that from the large crowd of Padma Saleelu who were present, Macherla Peda Kondaiah threw a bomb on A-23 who came there. The other defence witnesses also deposed to the occurrence in support of the version of the accused. The learned Additional Sessions Judge framed four points for consideration as mentioned in paragraph 4 of his judgment. The other defence witnesses also deposed to the occurrence in support of the version of the accused. The learned Additional Sessions Judge framed four points for consideration as mentioned in paragraph 4 of his judgment. He held on point No. 1 that it was not the accused party that took law into their hands, but it was the prosecution party that started rioting and were the aggressors; that the accused party was entitled to fall back onthe right of self-defence and use the necessary violence to ward off the attack and that the prosecution had not established that the accused committed any rioting. On point No. 2, the learned Judge held that the prosecution had not established that A-14 beat P.W. 26 and caused injuries on him; that even assuming that A-14 beat P.W. 26 and caused the injury, it cannot be stated that he attempted to commit murder and that the offence, if made out, would be under section 325, Indian Penal Code, and not under section 307, Indian Penal Code. On point No. 3, the learned Judge found that the prosecution had failed to prove change No. 3. On point No. 4, the learned Judge considered the respective charges in his discussion against each accused individually and in the end found that each of the accused was ‘not guilty’ of all the charges framed against them. The learned Advocate for the respondents, Mr. R. Rajeswara Rao, has raised an objection that the appeal by Macherla China Kondaiah (P.W. 1) was not competent In support of this contention, he points out that the complainant who filed the original complaint is not the present appellant (P.W. 1) but one Macherla Peda Kondaiah who died after he filed the complaint. Even in the committing Court. Macherla China Kondaiah (P.W. 1) helped in continuing the prosecution after the death of the original complainant, Macherla Peda Kondaiah. Even in the committing Court. Macherla China Kondaiah (P.W. 1) helped in continuing the prosecution after the death of the original complainant, Macherla Peda Kondaiah. The word ‘complaint’ is defined in section 4 of the Code of Criminal Procedure as follows: “4 (1) In this Code, the following words and expressions have the following meanings, unless a different intention appears from the subject or context: * * * * * * * (h) ‘Complaint’ means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer”. Section 417 (3), Criminal Procedure Code, runs as follows: “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.” The requirements under section 417(3), Criminal Procedure Code are: (a) The acquittal must be in any case instituted upon complaint. (b) The application must be made to the Court (for grant of special leave) by the complainant. (c) If permission were granted, the complainant may present appeal to the High Court. Requirement (a) is certainly fulfilled, for, the case was instituted on complaint by Macherla Peda Kondaiah. Subsequently, he died and Macherla China Kondaiah appears to have helped in continuing the prosecution of the case in the committing Court. The question is whether this is sufficient to enable him to claim or to be treated or recognised as ‘complainant’. For, requirements (b) and (c) would be fulfilled only if P.W. 1 is ‘complainant’. P.W. 1, styling himself as ‘complainant-petitioner’, filed C.M.P. No. 203 of 1959 in this Court for grant of special leave to appeal under section 417(3), Criminal Procedure Code. In this petition, he did not refer to the facts which had a bearing on the question whether he was the ‘complainant’ for the purpose of section 417(3), Criminal Procedure Code. Order in the C.M.P. was passed without going into the question and deciding whether the petitioner was the ‘complainant’ within the meaning of section 417(3), Criminal Procedure Code. In this petition, he did not refer to the facts which had a bearing on the question whether he was the ‘complainant’ for the purpose of section 417(3), Criminal Procedure Code. Order in the C.M.P. was passed without going into the question and deciding whether the petitioner was the ‘complainant’ within the meaning of section 417(3), Criminal Procedure Code. Consequently, the question as to whether the requirements of section 417(3), Criminal Procedure Code, have been fulfilled, which has not been gone into and decided in the C.M.P., can and has to be gone into and decided in this appeal. The word ‘complainant’ has not been defined in the Criminal Procedure Code. Section 200, Criminal Procedure Code, says that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath. There, ‘complainant’ obviously means a person who presented the complaint and who was to be examined on oath. In section 201(2), Criminal Procedure Code, it is provided that if the complaint, not made in writing, is presented to a Magistrate who is not competent to take cognizance, the Magistrate shall direct the complainant to the proper Court. In these two provisions, the word ‘complainant’ has been used to refer to a person who presents a written complaint or makes an oral complaint even before the sworn statement is recorded. In S.K. Osman Gani v. Baramdeo Singh1, a person presented a complaint before a Magistrate. The latter did not record sworn statement but ordered police investigation and subsequently received a police report and took cognizance of that report as a case. The question was whether the case was one ‘instituted on complaint’ for the purpose of section 417(3), Criminal Procedure Code. It was held that the case was not one instituted on complaint within the meaning of section 417 (3), Criminal Procedure Code. In Syed Ibrahim, In re2 a Bench of the Madras High Court observed that a report toa village munsiff will not fall within the definition of complaint in the Code of Criminal Procedure even if, as a result of investigation of that report, the police filed charge-sheet in Court. In Prasannachari v. Chikkapinachari1, the petitioner made a written complaint to the police and after the investigation the police filed charge-sheet. It was held that the petitioner was not the complainant entitled to present an appeal under section 417(3), Criminal Procedure Code. In Prasannachari v. Chikkapinachari1, the petitioner made a written complaint to the police and after the investigation the police filed charge-sheet. It was held that the petitioner was not the complainant entitled to present an appeal under section 417(3), Criminal Procedure Code. In Udit Narayan v. Ramrup2, a Sub-Divisional Officer filed a complaint as required under section 195(1)(a), Criminal Procedure Code, as a result of a petition by a certain person. It was held by the Patna High Court that that per on was not entitled to file an application for leave under section 417(3), Criminal Procedure Code, as complainant and that only the Sub Divisional Officer was competent to file such application. In the present case, the appellant-petitioner admittedly did not file complaint before the Village Munsiff or Police or Magistrate. The question is whether his helping to continue the preliminary register case after the death of the original complainant Macherla Peda Kondaiah, made the petitioner a ‘complainant’ or gave him right under section 417(3), Criminal Procedure Code. In Muhammad Ibrahim Sahib v. Shaik Dawood3, a Bench of the Madras High Court decided that a criminal prosecution under section 323, Indian Penal Code, did not abate by reason of the death of the person injured. The case depended on the interpretation of section 89 of the Probate and Administration Act with which we are not concerned here. Further, in that case, the entire prosecution had been closed and the entire defence evidence had been also closed by the time, when, the Advocate for the accused raised the contention that, owing to the death of the person injured, the charge against the accused must be held to have been abated. The learned Advocate for the appellant has relied on the decision of the Bombay High Court in Mahomed Azam v. Emperor4. In that case, the trustees of a mosque filed a complaint under sections 426 and 143, Indian Penal Code, against the accused. Before evidence was recorded, the complainant died. The accused applied for action under section 247, Criminal Procedure Code, on the ground that the complaint had abated by reason of the complainant’s death. The Magistrate rejected that application and allowed the proceedings to continue with a certain witness on record in place of the deceased. The matter was taken on revision to the High Court. The accused applied for action under section 247, Criminal Procedure Code, on the ground that the complaint had abated by reason of the complainant’s death. The Magistrate rejected that application and allowed the proceedings to continue with a certain witness on record in place of the deceased. The matter was taken on revision to the High Court. The latter observed as follows: “We are of opinion, therefore, in the present case of a non-cognizable offence instituted upon a complaint, the axiom of actio personalis moritur cum persona, in civil law confined to torts, does not apply and that the trying Magistrate has discretion in proper cases to allow the complaint to continue by a proper and fitcomplainant, if the latter is willing. The Courts would always be on their guard against needless harassment of an accused by substituting a complainant who is not a fit person.” In that case, the question was considered as to whether accused were entitled to be discharged under section 259, Criminal Procedure Code. The learned Judge have observed about this as follows: “There can be no question that in the case of cognizable offences, where a complainant and a complaint are not necessary, the death of the injured person makes no difference to the criminal proceedings, which are a matter for the State and which are undertaken by the Government......Under lection 259,......the Magistrate ‘may’, not ‘shall’ discharge the accused.” The learned Judges have referred to sections 143 and 426, Indian Penal Code, as offences of which complainant charged the accused. They have considered section 259, Criminal Procedure Code, and also mentioned that the accused applied for a discharge and not for an acquittal. The offence under section 143, Indian Penal Code, is punishable with rigorous imprisonment for six months. Obviously, the case under sections 143 and 426, Indian Penal Code, was a cognizable case and a summons case. So, obviously, section 247, Criminal Procedure Code, ought to have applied if summons procedure had been followed. Section 247, Criminal Procedure Code, says that if summons had been issued on complaint, and if the complainant did not appear on the day of hearing, the Magistrate shall acquit the accused unless for some reason he thinks proper to adjourn hearing of the case to some other day. Section 247, Criminal Procedure Code, says that if summons had been issued on complaint, and if the complainant did not appear on the day of hearing, the Magistrate shall acquit the accused unless for some reason he thinks proper to adjourn hearing of the case to some other day. In the Bombay case, some previous decisions were referred to wherein the view had been expressed that “It is open to doubt whether section 247 of the Code was intended to apply to such a case and that it seems to apply primarily to the case of a complainant who is alive but does not appeal.” Thus, the learned Judges gave a liberal interpretation to the word ‘complainant’ for the purpose of sections 247 and 259, Criminal Procedure Code, and held that when a witness was allowed to continue the case and act in the place of the complainant, after the original complainant had died, the witness became a substituted complainant. On this question, as to whether one complainant can be substituted for another, there has been difference of opinion among the various High Courts. In Appala Naidu, In re1, the relevant facts were as follows: When a summons case was taken up for hearing, the Magistrate was informed that the complainant had died. Thereupon, the Magistrate adjourned the case in order to enable the complainant’s son to come on record. Subsequently, the case was proceeded with obviously with the presence of complainant’s son in place of the original complainant and it ended in conviction. The learned Judge, Devadoss, J., in revision set aside the conviction observing as follows at page 340: “The Magistrate adjourned the case in order to enable the complainant to appear and not for any ether reason. If the complainant is dead, he could not appear before the Magistrate, and, therefore, the clause beginning with the words”unless for some reason he thinks, etc.“cannot apply to the case of the complainant who is dead. In this case, the complainant being dead during the course of the enquiry, the Magistrate should have acquitted the accused and should not have proceeded with the enquiry. In this case, the complainant being dead during the course of the enquiry, the Magistrate should have acquitted the accused and should not have proceeded with the enquiry. I may, in this connection, refer to Purnachandra Moulik v. Dengar Chandra Pal2.” In effect, the learned Judge held that the word ‘complainant’ used in section 247, Criminal Procedure Code, could mean only the man who filed the complaint and instituted the case and could not cover any other person and that the son of the complainant could not be substituted as complainant or become a complainant for the purpose of section 247, Criminal Procedure Code. The decision in Purnachandra Moulik v. Dengar Chandra Pal2, was relied and affirmed by the Calcutta High Court in Ashraf and others v. Surendra Nath Sen3. There, the learned Judge has positively held that “there is nothing in the wording of the section itself to suggest that it has no application when a complainant is dead” and observed that the same view had received considerable support in other Courts. The decision in Appala Naidu, In re1, is a decision of the Madras High Court which is binding on this Court. I respectfully follow it in preference to the decision of the Bombay High Court in Mahomed Azam v. Emperor4. In Nabi Baksh v. King Emperor5, it was held as follows: “It is clear that in a warrant case of the kind in question, as the Magistrate is bound to proceed with it after framing a charge against the accused and to finish the trial, and as the complainant cannot either compound the offence or withdraw the complaint, he is not bound to attend the Court in his capacity of complainant though he may be bound and can be compelled to attend as a witness. . . . . .” The position of a complainant in a preliminary register case after the case is taken on file, is similar to that of the complainant in a warrant case after the charge is framed, in that, the case can and has to proceed without in any way requiring or depending on the presence or co-operation of complainant. . . . .” The position of a complainant in a preliminary register case after the case is taken on file, is similar to that of the complainant in a warrant case after the charge is framed, in that, the case can and has to proceed without in any way requiring or depending on the presence or co-operation of complainant. Civil Procedure Code contains various provisions for continuation of proceedings in the case of death of a party or his unwillingness to prosecute his case; for example transposing of a party, substitution of a petitioner by another and adding of legal representatives. There is no such provision in the Code of Criminal Procedure regarding a complainant. Section 417, Criminal Procedure Code, actually provides for the State to direct the Public Prosecutor to present appeal. Originally, the provision for appeal against acquittal was only by the State. This section was amended by the Amending Act XXVI of 1955 which introduced this new provision under section 417(3), Criminal Procedure Code, but the Legislature retained the provision for the State to direct the Public Prosecutor to present the appeal. So, section 417(3), Criminal Procedure Code, is a new enabling provision in which the right is given only to the complainant. Under section 244, Criminal Procedure Code, when following the summons procedure, the Magistrate has to take all such evidence as may be produced 111 support of the prosecution and he may issue summons to witnesses on the application of the complainant. If complainant is not present on a day of hearing as contemplated in section 247, Criminal Procedure Code, the Magistrate shall acquit the accused unless he adjourns the case for some proper reason. So, a complainant is necessary for producing the witnesses and to apply for issuing summons and for the case to continue to exist and progress. Under section 259, Criminal Procedure Code, when following warrant procedure on a private complaint, the Magistrate may discharge the accused if the complainant is absent on a day of hearing it the offence is lawfully compoundable and not a cognizable offence. This is in contrast with section 247, Criminal Procedure Code, in that, the Magistrate has no power to discharge the accused under section 259, Criminal Procedure Code, it the case is not lawfully compoundable and non-cognizable offence. This is in contrast with section 247, Criminal Procedure Code, in that, the Magistrate has no power to discharge the accused under section 259, Criminal Procedure Code, it the case is not lawfully compoundable and non-cognizable offence. Even if it is lawfully compoundable and non-cognizable, the Magistrate maydischarge the accused and is not bound to discharge the accused. Under section 252(2), Criminal Procedure Code, ‘the Magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary’. Thus, there is provision for the Magistrate to continue the case even if the complainant does not appear and co-operate and even after the death of a complainant. In the case of preliminary register case enquiry, which has been instituted on a private complaint, there is provision in section 208(1), Criminal Procedure Code, for the Magistrate to call for evidence even without the complainant or prosecution producing it. In procedure relating to preliminary register enquiry, there is no provision similar to section 247 or section 259, Criminal Procedure Code, enabling the Magistrate to discharge the accused because of the absence of the complainant as distinct from the provision in section 209 for discharging the accused for other reasons. Thus, the case can proceed and has to proceed even after the death of complainant and even without anyone being called complainant afterwards unless the Magistrate chooses to discharge the accused for reasons other than the death of the complainant. Hence, anyone who was allowed to help the Court alter the death of the complainant (who had filed the complaint) need not be called or treated or deemed to be a complainant for the purpose of section 417(3), Criminal Procedure Code. In this case, the proceeding which had been started by the complainant Macherla Peda Kondaiah was a preliminary register case relating to cognizable offences, some of which could not be lawfully compounded (sections 307 and 326, Indian Penal Code). In this case, the proceeding which had been started by the complainant Macherla Peda Kondaiah was a preliminary register case relating to cognizable offences, some of which could not be lawfully compounded (sections 307 and 326, Indian Penal Code). The mere fact that, after the death of Macherla Peda Kondaiah, one witness who was a relative of Macherla Peda Kondaiah was allowed to help the committing Court in its proceedings in the preliminary register case does not mean that the latter was a ‘complainant’ or deemed to be a complainant or substituted as a complainant by the committing Court. But the fact that a person originally filed the complaint would make him the complainant. Consequently, Macherla Peda Kondaiah alone was the complainant, and Macherla China Kondaiah (who did not file the complaint which was taken on file) was only a witness and did not become a complainant. I agree with the contention of the learned Advocate for the accused that the witness (P.W. 1) Macherla China Kondaiah is not a ‘complainant’ and is not competent to file appeal under section 417(3), Criminal Procedure Code. On this finding itself this appeal can be and has to be dismissed. (His Lordship then considered the other contentions on merits). In view of my findings above, I do not consider it necessary to go into the evidence on each charge or against each accused individually. I dismiss the appeal. A.S.R. ----- Appeal dismissed.