Full Judgment Text
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PETITIONER:
BHIMAPPA BASSAPPA BHU SANNAVAR
Vs.
RESPONDENT:
LAXMAN SHIVARAYAPPA SAMAGOUDA AND OTHERS
DATE OF JUDGMENT:
11/03/1970
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
RAY, A.N.
DUA, I.D.
CITATION:
1970 AIR 1153 1971 SCR (1) 1
1969 SCC (1) 665
CITATOR INFO :
R 1971 SC1977 (13)
ACT:
Code of Criminal Procedure 1898, s. 417(3)--Police filing
chargesheet against two accused--Appellant filing complaint
against third accused--Acquittal of all accused by Sessions
Court--Whether appellant entitled to file petition for
special leave under s. 417(3) in the case against the third
accused.
HEADNOTE:
The appellant’s house was set on fire and burnt down. As a
result of a report filed by his son the police arrested
Respondents 1 and 2 and submitted a charge-sheet against
them. The appellant was dissatisfied that the police had
not prosecuted Respondent No. 3 also and he filed a
complaint against him, in the same Court. The Magistrate
inquired into the two cases together and committed
separately the first two respondents and the third
respondent separately to the Court of Sessions. After the
Sessions Judge had held all the three respondents not guilty
and acquitted them, the appellant applied under s. 417(3)
Cr. P.C., for special leave to appeal against the acquittal
of the three respondents; but this petition was dismissed by
the High Court on the ground that the petitioner had no
locus standi to prefer an appeal when the State had pro-
secuted the respondents in the Sessions Court. A revision
application filed by the appellant was also rejected. On
appeal to this Court,
HELD : The appellant was entitled to have a hearing of his
petition for special leave under s. 417(3) and the case must
therefore be remitted to the High Court for this purpose.
The answer to the question whether the appellant had a right
to move the High Court for special leave under s. 417(3)
depended upon whether there was a case instituted by him
upon a complaint in which an acquittal was recorded, for
this is the requirement of the special section and also the
condition precedent to the right. [4 B].
On the facts, there could be no doubt that one of the cases
was instituted on the report of a police officer and the
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other on the complaint of the complainant. There could be
no question of merger because the identity of the two cases
was maintained right upto the end of the Sessions Trial.
The case of the appellant proceeded on its own number and
although evidence was led in both cases together, the
acquittal was recorded separately in each of the two cases.
The appellant was therefore entitled to move the High Court
for special leave in his own case. [6 G]
The fact that the appellant had also applied for revision
which was rejected and had applied for special leave-
against that order which was refused by this Court, did not
mean that that must conclude the matter. The appellant’s
statutory right to move the High Court could not be lost by
reason of the revision and the result of the revision, had
no bearing upon the matter. [7 B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.166 of
1967.
2
Appeal by special leave from the judgment and order dated
November 28, 1966 of the Mysore High Court in Criminal Peti-
tion No. 610 of 1966.
V. K. Sanghi and M. S. Narasimhan, for the appellant.
S. S. Javali and M. Veerappa, for respondents Nos. 1 and 2.
R. Gopalakrishnan, for respondent No. 3.
S. P. Nayar, for respondent No. 4.
The Judgment of the Court was delivered by
Hidayatullah, C.J.-This is an appeal by special leave
against the judgment and order of the High Court of Mysore
dated November 28, 1966 in Misc. Criminal Petition No. 610
of 1966. By that order the High Court held that the present
appellant Bhimappa had no locus-standi to invoke S. 417(3)
of the Code of Criminal Procedure and to ask for special
leave to file an appeal against the acquittal of the
respondent. The appellant questions the correctness of the
order.
Bhimappa (appellant) had a house at Athni, Taluka Belgaum
District. It stood in the name of his eldest son and his
two other sons lived in one part of the house and the other
part was let out to the first respondent Laxman who ran a
boarding house and also lived there with his wife and
children and his mistress Champevva, the second respondent.
No rent was fixed but the sons of Bhimappa used to have
their meals with respondents Nos. 1 and 2. Bhimappa asked
his tenant to vacate the house as he wanted to reside in it
himself and his son Yamnappa (P.W. 14) wanted space for a
godown for 400 bags of groundnut purchased by him. The
first respondent was asked to vacate a portion of the house
but was reluctant.
It is not necessary to give the details of what happened
further. Suffice it to say that the house was set on fire
to cause loss to Bhimappa. All efforts to save the house
failed and it was burnt down. Yamanappa then filed a report
in the police station. The police arrested respondents Nos.
1 and 2 and submitted a charge sheet against them in the
court of Junior Magistrate, Athni.
Bhimappa was dissatisfied that the police had not prosecuted
Mallappa, respondent No. 3 also and he filed a complaint
against him in the same court. The magistrate inquired into
the two cases together and finding a prima facie case
established committed the first two respondents and the
third respondent separately to the Court of Sessions. The
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three respondents asked that the two cases be consolidated
and a combined charge be framed in the case.
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The two sessions cases were numbered as Sessions Trials
Nos.. 79-80 of 1965. They were tried together and the
Sessions Judge, Belgaum by his judgment, July’ 13, 1966 held
the respondents not guilty and acquitted them.
The appellant then applied to the High Court of Mysore under
s. 417(3) of the Code of Criminal Procedure for special
leave to appeal against the acquittal of the three
respondents. With the petition he filed a memorandum of
appeal. The High Court held’ on November 28, 1966 as
follows :
"The petitioner has no locus standi to prefer
an appeal when the State had prosecuted the
respondent in the Sessions Court. This
petition is dismissed.
Sd/- H. Hombe Gowda,
Chief Justice,
Sd/- M. Santhosh,"
Bhimappa filed also a revision application, which was
dismissed on December 5, 1966 by C. Honniah J. Bhimappa’s
request for a certificate was also rejected. He now appeals
to this Court. His contention is that he had a right to
move the High Court unders. 417(3) of the Code of Criminal
Procedure for special leave as the order of ’acquittal was
passed in a case instituted upon his complaint. The High
Court could not, therefore, hold that he, had no standing to
move the High Court under s. 417(3) of the Code of Criminal
Procedure.
Sub-section 3 of s. 417 as an amendment was introduced by
Act XXVI of 1955. Previously the right of appeal against
acquittal belonged only to the State Government. By the
amendment this right is also conferred on a complainant if
the order of’ acquittal is passed in any, case instituted
upon complaint. The sub-section may be read here
"3. 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."
Under sub-section 4 the application has to be made within 60
days from the date of the order of acquittal while under
sub-section 5 it the application under sub-section 3 for the
grant of special leave to appeal from the order of acquittal
is refused, no appeal from that order of acquittal shall lie
at the instance of the State Government.
4
The short question in this case is whether the sessions
case .Started on the complaint of Bhimappa entitles him to
move the High Court for special leave (a) against all the
three respondents ,or (b) at least against respondent No. 3.
The answer to this question depends upon whether we can say
that there was a case instituted upon a complaint by
Bhimappa in which an acquittal was recorded, for these are
the words of the sub-section and also the condition
precedent to the right. The word ’case’ is not defined by
the Code but its meaning is well under-stood in legal
circles. In criminal jurisdiction means ordinarily a
proceeding for the prosecution of a person alleged to ’have
committed In offence. In other contexts the word may
represent other kinds of proceedings but in the context of
the sub-section it must mean a proceeding which at the end
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results either in discharge, conviction, or acquittal of an
accused person.
What is meant by ’instituted’ may next be explained. There
are three different ways in which cognizance is taken by
Magistrates of offences. This is stated in s. 190 of the
Code. They are
"(a) upon receiving a complaint of the facts
which constitute an offence;
(b) upon a report in writing of such facts
made by any police officer; and
(c) upon information received from any person
other than a police officer, or upon his own
knowledge or suspicion, that such offence has
been committed."
The third sub-section, therefore, obviously refers to a case
in which cognizance is taken upon a complaint of facts
constituting an offence. The word ’complaint’ has been
defined in S. 4(1)(h) ,and means an allegation made orally
or in writing to a Magistrate, with a view to his taking
action, under the Code, that some person, whether known or
unknown, has committed an offence, but it does not include
the report of a police-officer.
The word ’complaint’ has a wide meaning since it includes
even an oral allegation. It may, therefore, be assumed that
no form is prescribed which the complaint must take. It may
only be said that there must be an allegation which prima
facie discloses the commission of an offence with the
necessary facts for the Magistrate to take action. Section
190(1)(a) makes it necessary that the alleged facts must
disclose the commission of an offence.
The Code then proceeds to provide different procedures for
different cases arising under s. 190 and also in relation to
the
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seriousness of the offence. Chapter XVI deals with
proceedings instituted upon a complaint, Chapter XVIII with
inquiries into cases triable by the Court of Session or the
High Court, Chapter XX with the trial of Summons cases by
Magistrates, Chapter XXI with the trial of Warrant cases by
Magistrates, Chapter XXII with summary trials and Chapter
XXIII with trial before High Courts and Courts of Sessions.
The offence here was mischief by fire with intent to destroy
a house etc. punishable under s. 436 I.P.C. This offence is
triable7 exclusively by the Court of Session. Section 207
of the Code of Criminal Procedure provides :
"Procedure in inquiries preparatory to
commitment-
In every inquiry before a Magistrate where the
case is triable exclusively by a Court of
Session or High Court, or in the opinion of
the Magistrate, ought to be tried by such
Court, the, Magistrate shall-
(a) in any proceeding instituted on a police
report, follow the procedure specified in
section 207A; and
(b) in any other proceeding, follow the
procedure specified in the other provisions of
this Chapter."
Under s. 206 the Magistrate is required to commit an accused
to the Court of Session for trial. In cases triable by the
Magistrate himself he has to follow the procedure for trial
of cases according to the other procedures mentioned earlier
by us. As this was a case for the application of sections
other than s. 207-A it fell under section 208. That section
provides for cases of complaint and the is complainant has
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to be heard when the accused appears or brought before the
Magistrate who has to take such evidence as may be produced
in support of the prosecution or in behalf of the accused,
or as may be called by the Magistrate. Then under s. 209
the accused may be discharged unless the Magistrate con-
siders it necessary that the person should be tried before
himself or some other Magistrate in which case he shall
proceed accordingly. If he considers that there are reasons
to commit the accused, he shall frame a charge, explain it
to the accused, obtain from the accused a list of his
defence witnesses. The Magistrate may in his discretion
examine any of these witnesses and then commit the accused
to stand his trial before the Court of Session or if
satisfied that there are no grounds for committing the
accused., he may cancel the charge and discharge the
accused.
It will be noticed that in a case involving an offence
triable exclusively by the Court of Session the procedure
under ss. 206-220
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has to be followed if the complaint is filed initially.
There are other sections in the Chapter and other
Supplementary provisions Which are not relevant to the
discussion and, therefore, reference .to them is omitted
here.
The position regarding other cases triable by the Magistrate
himself or by another magistrate are laid down in Chapter
XVI. There the magistrate shall examine the complainant and
the witnesses present, if any. The Magistrate may even send
the case to the police for investigation under s. 156(3) if
he is empowered to act under S. 190. This procedure of
course does not arise in cases in which the trial is of an
offence triable by the Court of Session. As we are not
concerned with the problems arising under Chapter XVI we
refrain from expressing an opinion on the various aspects of
the problem arising under that Chapter. For that reason we
do not refer to cases which were mainly concerned with
trials before Magistrate.
In the present case the police had put up a chargesheet
against two respondents only. Bhimappa filed a complaint in
which he charged these two respondents and respondent No. 3
with the same offence of mischief by fire but with the aid
of s. 34 I.P.C. As he had charged the three respondents with
having entered into :a Criminal Conspiracy a charge under S.
120-B I.P.C. was also framed while committing the accused to
the Court of Session. Mallappa was also charged under S.
436 read with S. 109 I.P.C. for abetment of the offence by
the other accused. The two cases in the Magistrate’s Court
were registered under their own numbers but were tried
together and were committed separately. In the Court of
Session they were also registered separately and bore
numbers Sessions Cases Nos. 79 and 80 of 1965. Both the
cases ,ended in acquittal.
Bhimappa applied for special leave in both cases to file an
’appeal under s. 417(3). His right to ask for special leave
was not accepted in the High Court.
Now there can be no manner of doubt that one of the cases
was instituted on the report of a police officer and the
other on the complaint of the complainant. There can be no
question of merger because the identity of the two cases is
maintained right up to the end of the Sessions trial. The
case of Bhimappa proceeded on its own number and although
evidence was led in both the cases together, the acquittal
was recorded in each of the two cases. The police did not
present a charge-sheet against Mallappa and the trial of
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Mallappa can be said to be in the other case and not in the
case filed by the police. In this view of the matter it is
quite plain that Bhimappa was entitled to move the High
7
Court for special leave in his own case. The order saying
that he had no standing cannot, therefore, be sustained.
Bhimappa had also applied for revision and his application
was rejected. He applied for special leave against that
order but leave was refused by this Court. It was argued
that that must conclude the matter. We do not agree.
Bhimappa’s statutory right to move the High Court could not
be lost by reason of the revision. The result of the
revision, therefore, had no bearing upon the matter.
Bhimappa was thus entitled to have a hearing of his petition
for special leave under s. 417 (3) of the Code. Whether he
could ask for leave against Malappa alone.or against the
other two because the charge under s. 120-B I.P.C. was
framed against all the three respondents on his complaint is
a point which we do not decide because it will be for the
High Court to consider the matter when his petition is
considered and only if it is allowed.
We accordingly set, aside the order of the High Court and
remit the case for consideration of the petition under s.
417(3) filed by Bhimappa.
R.K.P.S. Appeal allowed.
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