MENAKABALA SARKAR Vs. SURENDRA CH MALAKAR,
HIGH COURT OF GAUHATI
Surendra Ch Malakar,
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R.S.BINDRA, J. -
(1.) THE respondent was tried by Shri N.G. Paul, Magistrate First Class, Kamalpur, on charges under Sections 354 and 457, I.P.C. on the basis of police report made to him under Section 173, Criminal Procedure Code The victim of the alleged criminal assault was undoubtedly the present appellant Menakabala Sarkar. The trial ended in acquittal on 25.2.1965. The State apparently felt satisfied with the order of acquittal, as it did not file any appeal challenging its correctness. Instead, Menakabala Sarkar moved an application under Sub -Section (3) of Section 417, Criminal Procedure Code for permission to file an appeal. That permission having been granted by my predecessor Shri Rajvi Roop Singh on 5.5.1965, an appeal against acquittal, at her instance, was registered.
(2.) I feel clear that the appeal by Menakabala Sarkar is not maintainable in law. Section 404 of the Criminal Procedure Code prescribes that no appeal shall lie from any judgement or order of a Criminal Court except as provided for by that Code or by any other law for the time being in force. Therefore, we have to search for a provision either in the body of the Criminal Procedure Code or in some other statute to determine if Menakabala could have come in appeal against the order of acquittal, when the case was taken cognisance of by the Magistrate on the report made to him by the police. It may be appropriately mentioned that it is settled beyond dispute that a right of appeal is not a natural or inherent right and that it has to be expressly given by statute.
(3.) SHRI G. Choudhury, representing Menakabala Sarkar, relies upon the provisions of Section 417 of the Code to support the contention that Menakabala had the right of appeal against the order of acquittal. Sub -Section (1) of that section provides that subject to the provisions of Sub -Section (5), 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. Sub -Section (2) gives identical power to the Central Government in respect of an order of acquittal passed in any case in which the offence had been investigated by the authorities mentioned therein. It is conceded by Shri Choudhury that Sub -Section (2) has no application to the case in hand. Sub -Section (3) of Section 417 provides that if 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. Obviously this provision comes into play only when an acquittal is ordered in any case instituted upon complaint, and since admittedly the present case was instituted not on complaint but upon a police report filed under Section 173, Criminal Procedure Code, Menakabala Sarkar could not have taken recourse to Sub -Section (3) for filing an appeal. The expression "complaint" is defined in Clause (h) of Section 4(1) of the Code to mean "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". It is apparent that the expressions "complaint", as defined in Clause (h), and "the report of a police officer" are quite distinct from each other and mutually exclusive in the legal sense. As such no application under Section 417(3) could have been made by Menakabala Sarkar for permission to file a special appeal in the present case. I would, therefore, hold that the permission granted by this Court's order dated 5.5.1965 was illegal with the consequence that the appeal filed by Menakabala Sarkar is not maintainable in law and so I reject it on that ground. Order accordingly.;
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