JUDGMENT Sahgal, J.
1. The appellant who is a life member of the Shyam Lal Gupta Higher Secondary School, Nawabganj in the District of Unnao lodged a complaint against the respondent who was the Principal of that institution, in the court of a Magistrate for an offence under Section 408 I.P.C. The Magistrate in the beginning wanted to try the case as a warrant case, but later on he thought it fit to commit the accused to stand his trial before the court of session. The accused was accordingly committed to the court of session and the Sessions Judge transferred the case to the court of the Assistant Sessions Judge who has acquitted the respondent. It is in these circumstances that the appellant came to this Court and moved an application under Section 417(3) Cr. P.C. for special leave to appeal from the order of acquittal. The leave having been granted, this appeal was filed which has been admitted and that is how it comes up before the Court for hearing.
2. A preliminary point was raised on behalf of the respondent that the appeal was not maintainable and that the provisions of Subsection (3) of Section 417 Cr. P.C. did not apply to the case. Having heard the learned counsel, we overruled the preliminary objection and ordered the case to be beard on the merits. We now proceed to give our reasons for doing so.
3. Sub-section (3) of Section 417 Cr. P.C. reads: --
"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."
4. Our attention also was drawn to Sub-section (1) of Section 417 which provides, in so far as it is relevant, that the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court.
5. The learned counsel pointed out that it was the absolute right of the State Government to instruct the Public Prosecutor in the case of an acquittal order passed either by the trial court or by an appellate court to present an appeal against that acquittal. But if a case is instituted upon a complaint and the accused is acquitted, the complainant has to obtain special leave. Even in such a case an appeal may be filed without special leave provided the complainant is able to induce the State Government to direct the Public Prosecutor to present an appeal.
6. This being an appeal which has not been filed under Sub-section (1) of Section 417, but a case in which special leave was applied for, it was pointed out that such an application under Sub-section (3) could be moved only if the case giving rise to this appeal had been "instituted upon complaint" (the underlining (herein shown in inverted commas-Edl is ours).
7. The learned counsel drew our attention to the provisions of Sections 193 and 198-B Cr. P.C. and pointed out that there are two ways in which a court of session can take cognizance of any offence. It can take cognizance of any offence as a court of original jurisdiction when the accused has been committed to it by a Magistrate duly empowered in that behalf; it can also take cognizance of an offence in cases covered by Section 198-B on complaint also. The simple argument was that as it is not a case covered by Section 198-B but is a case covered by Section 193 Cr. P.C. it cannot be said that the order of acquittal was passed in a case "instituted upon complaint," and as such there was no occasion for any special leave being granted under Sub-section (3) of Section 417 which could be granted only in such cases. He also drew our attention to the provisions of Section 270 Cr. P.C by pointing out that such cases are conducted by the Public Prosecutors before the court of session and not by a private party, if further indicates that such cases cease to be a case instituted upon complaint in which the complainants can prosecute their cases. He referred to the provisions of Section 493 Cr. P.C also and pointed out that if the Public Prosecutor is responsible for the conduct of the case, then if any person appoints a Pleader to prosecute the case in any court, the Public Prosecutor shall conduct the prosecution and the pleader so appointed shall act therein under his directions which again indicates that over-all charge of such a case will he that of the Public Prosecutor.
8. We were also referred to the provisions of Section 347 Cr. P.C. under which even at the last stage a Magistrate before signing judgment may commit the accused to stand his trial before the court of session if it appears to him that the case is one which ought to be tried by the court of Session. Such a case also would come under Section 193 Cr. P.C. and it would he a case relating to an offence of which the Sessions Judge would take cognizance on committal and not on a complaint.
9. In short, the argument was that even though the appellant may have filed a complaint against the respondent in the court of a Magistrate, but as the case was tried by an Assistant sessions Judge and the cognizance of the offence was taken by the court of Session on a committal order and not a complaint, the case cannot be said to have been "instituted upon complaint."
10. The argument loses sight of the difference between the terms "institution of a case" and the "taking of cognizance of a case". Institution of a case is an act of a suitor, while taking of cognizance is an act of the court. A case is instituted when a suitor brings it before a court, but cognizance is taken of an offence by a court when it decides to proceed with it. Thus while institution of a case is done by a suitor, the taking of cognizance is done by a court. By instituting a case the suitor draws the attention of the court to the offence and desires that the court may take cognizance of it. In order to see, therefore, as to how a case has been instituted, we have to look to the manner in which it has been brought before the court by the suitor. In what circumstances, how or when the court takes cognizance of a case will be beside the point.
11. Ball was set rolling in this case before the court of a Magistrate by the complaint of the appellant. Thereafter the proceedings continued before him and ultimately he thought it fit to commit the accused to stand his trial before the court of Session. By the committing of the accused to stand his trial in this manner the proceedings did not terminate. They continued before the court of session and the continuity having not been broken, the case does not cease to have been instituted upon a complaint. The proceedings before the Sessions Judge were not fresh proceedings or proceedings apart from those before the Magistrate. They were a continuation of the proceedings before the Magistrate and if they were instituted before the Magistrate upon complaint, their nature would not change by the accused being committed to the court of session Proceedings under Section 198-B Cr. P.C. take their birth in the court of session itself on a complaint. Proceedings for which the accused is committed to stand his trial before the court of session, continue before that court on committal, but they have already taken their birth at an earlier stage before a Magistrate in one or other of the modes provided in Section 190 Cr. P. C. In the circumstances, the contention of the learned counsel for the respondent is not tenable that this cannot be said to be a case which was "instituted upon complaint."
12. The learned counsel relied on a number of authorities to support his contention. The first case on which he placed reliance is Supdt. and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437. In that case it has been laid down that when a petition of complaint is filed before a Magistrate, the Magistrate may take cognizance under Section 190(1)(a) and proceed to examine the complainant under Section 200, and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of Section 156(3). It further lays down that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 166(3), or issuing a search warrant for the purpose of the investigation, be cannot be said to have taken cognizance of the offence. The case, therefore, deals as to when it can be said that a Magistrate had taken cognizance of a case. The view expressed in this case of the Calcutta High Court was approved by the Supreme Court in R.R. Chari T. State of Uttar Pradesh, AIR 1951 SC 207 at p. 210 when the following extract from that judgment was quoted with approval:--
"What is "taking cognizance" has not been defined in the Cr. P C and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal P.C he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,--proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence".
13. Here again the case throws light only on when a court can be said to have taken cognizance of a case.
14. The next case is again of the Calcutta High Court, namely, Parul Bala Sen Gupta v. The State, AIR 1957 Cal. 379. In this case the point was as to what the word "case" means under Section 553(1) Cr. P.C. and it was held that it is only when a report under Section 173 is made and the Magistrate takes cognizance of the offence that a 'case" is brought into existence and it is only then that the case is heard by the Magistrate within the meaning of Section 553 of the Code. Here again the Court was concerned with the meaning of the word "case" and as under Section 553 it was necessary that the case be heard, it was pointed out as to when can it be said that a case has been heard by a Magistrate. This case also does not decide the precise point before us as to when it can be said that a case has been instituted.
15. There is then a string of authorities on which the learned counsel placed reliance namely, S.K. Osman Gani v. Baramdeo Singh, AIR 1959 Cal. 145, B.V. Huchappa v Venkataswamy. AIR 1960 Mys. 172 and K. Damodaran v. V.K. Sippi, AIR 1960 Ker 389.
16. In the Calcutta case. AIR 1959 Cal. 145 following observations made in Parul Bala Sen Gupta's case, AIR 1957 Cal. 379 (supra) of the same High Court, a Bench held that applying a similar meaning to the expression "any case instituted upon complaint" used in Sub-section (3) of Section 417 of the Code, it must mean only that class of cases where not only 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. Thus when the complainant came to court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to this police and then on receipt of a report from the police he took cognizance, it cannot be held that the case was one instituted on a complaint within the meaning of the expression in Section 417(3).
17. The Mysore High Court in Huchappa's case, AIR 1960 Mys. 172 (supra) following the above authorities held that it is not sufficient for the purposes of Sub-section (3) of Section 417 if merely a complaint had been made and an order of acquittal has been subsequently passed; it is also necessary that suck an order of acquittal should have been passed in a "case" instituted upon complaint. Until a Magistrate has taken cognizance of an offence, there is no "case" before the Magistrate. The mere fact that there is a complaint before a Magistrate is not equivalent to there being a "case" before the Magistrate. Where the Magistrate upon such a complaint orders investigation under Section 156(c) which result in the police placing a charge sheet and the Magistrate proceeds on the charge sheet and acquits the accused, the acquittal is dot on a case instituted upon a complaint, and therefore, Section 417(3) Cr. P.C. would not entitled the complainant to apply for special leave to appeal.
18. In K. Damodaran's ease, AIR 1960 Ker 389 (supra) the Kerala High Court also, following the aforesaid authorities, held that the words "in any case instituted upon complaint" appearing in Section 417(3) mean "in any case of which the Court has taken cognizance upon complaint" and "complaint" does not include a police report.
19. The ratio of all these cases is that a "case" comes into being only when a court takes cognizance and so long as no cognizance is taken by a court, there being no case, no question of a case "instituted upon complaint" arises.
20. On the strength of these authorities it was urged that as the case came before the court of session only on an order of committal by the, Magistrate which the court of session took cognizance of the case was born, as it were at that stage and as its birth did not arise out of any complaint but it came into being as a result of a committal order, it can not be said that it was "instituted upon com plaint".
21. We are not prepared to accept this argument. The case started on a complaint filed by the appellant before the Magistrate who took cognizance of the offence relating to which the complaint was filed against the respondent. He had first thought it fit to try it as warrant case, but later he thought that it would be better if the accused was to stand his trial before the court of session When the case came up before the court of session after committal it was the same case, for it had to be committed to that court as the Magistrate thought that he could not adequately deal with ft. The case, therefore, did not come into being only on its being taken cognizance of by the Sessions Judge, but it was already in existence. The cases, therefore, on which reliance has been placed by the learned counsel for the respondent did not apply to such a case. They all relate to cases before a Magistrate in whose court they were instituted.
22. Apart from it, we are not in agreement with the view expressed in some of the authorities, referred to above, that a case is instituted only when it is taken cognizance of.
23. Under Section 190(1) a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (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. We may leave out (c) for the present. Thus cognizance may be taken by a Magistrate upon receiving complaint of facts or upon a report made by a police officer. Apart from the method contemplated by Clause (c) with which we are not concerned, there are two methods of the case being brought to the notice of the Magistrate, namely, by a complaint or by a police report. The Magistrate may take cognizance or he may not take cognizance on receiving a complaint or upon a police report, but the case is conceived as soon as a complaint is filed or a police report is made before him. If he does not take cognizance of the offence, then the case in either of these two cases is still-born. If ultimately the Magistrate does take cognizance of the offence, though the case starts from the stage at which cognizance is taken, it does not cease to be instituted upon complaint or upon a police report. Though it is born and it starts on the offence being taken rognizance of, it remains in the womb, as it were, prior to its being taken cognizance of, being conceived on the filing of the complaint or the submitting of the police report. So as soon as it is born by being taken cognizance of, it can safely be said to have been born as a result of the institution of the complaint or of the submitting of the police report. We are, therefore, in respectful agreement with the view expressed in Kshetrabanshi Panda v. Lalit Kumar Sen Gupta, AIR 1959 Cal. 595 that in a case where the appellant filed a petition of complaint and upon the complaint the Magistrate ordered the petition of complaint to be sent to the Officer-In-Charge of the police station for necessary action and as a result of the investigation by the police a charge-sheet came into existence, it could be safely concluded that the case was instituted upon a complaint. In such a case, no doubt, cognizance was taken by the Magistrate on the police report itself, but the Magistrate called for the report of the police on the complaint instituted in his court and it is through the complaint that the suitor approached the court for proceeding in the matter. The court might not have thought it fit to start the proceedings on the complaint itself, but might have thought it necessary to obtain a police report also and the police may have charge-sheeted the accused, but though the cognizance was taken by the Magistrate after the charge sheet of the police was submitted before him, as the proceedings were in the first instance initiated in his court on the petition of complaint by the complainant, it could not be said that the case had not been instituted upon complaint but had been instituted on a charge sheet submitted by the police. In the instant case also, though the court of session took cognizance of the case on the order of committal of the accused to that court, the ease did not cease to be one instituted upon complaint.
24. For the reasons stated above, as we were of opinion that the preliminary objection had no force, we overruled it.