PANEDY J - (1.) THIS ease comes before us on a reference made by Newaskar and Sen JJ., who found themselves unable to concur in the view expressed in the following observations made by another Division Bench of this Court in State v. Daulatsingh*.- "There are two answers to this contention. The present application for leave to appeal and the proposed appeal are by the State and Dot by the Forest Banger, the complainant. Secondly, sub-section (3) of section 417, Criminal Procedure Code, confers the right of appeal to the complainant in a case instituted upon the complain 1 of a private person and Dot upon the complaint of a public servant or of a Court. The prosecution on the complaint of a Court or of a public servant acting in the discharge of his official duties beiDg one by the State, and the state having the right of appeal in any case under section 417 (1), Criminal Procedure Code, the words 'complaint' and 'complainant' in sub-section (3) can refer only to a private complaiot and to a private complainant."
(2.) THE facts of the case so far as they are necessary for this reference may be shortly stated. In virtue of the powers conferred upon the Durgs Inspector under section 32 of the Drugs Act, 1940, he instituted, by means of a complaint filed by him, a prosecution against the respondents for contravening the provisions of section 18 of that Act and thereby committing offences punishable under section 27 thereof. THE respondents, who had been convicted and sentenced to pay fines for the offences committed by them, were acquitted in appeal. THE Drugs Inspector then appealed against the acquittal after applying for, and obtaining, special leave so to do under sub-section (3) of section 417 of the Code of Criminal Procedure. When the appeal came up for hearing before Newaskar and Sen JJ. the respondents raised a preliminary objection grounded upon the observations reproduced earlier that the special leave obtained in this case could not have been given to the Drugs Inspector, who, being a public servant, had filed the complaint in the discharge of his duty as a public servant. THEreupon, as indicated earlier, Newaskar and Sen JJ. made this reference. We may state at the outset that in State v. Daulatsing. 1957 MPL J 356=A I R 1257 M P 72, the application for special leave under sub-section (3) of seotion 417 of the Code was made by the State itself. Since, as provided in sub-section (1) of section 417 of the Code, the State could directly appeal against acquittal "in any case", including a case instituted upon a complaint, without being obliged to obtain special leave, the application could be dismissed on that short ground and it was not necessary to consider whether a public servant, who had filed a complaint in the discharge of his duty as a public servant, was entitled to apply for special leave under sub-section (3) of section 417 of the Code. Even so, since the question arises directly and is of general importance, we proceed to consider it. Section 417 of the Code reads: "(1) 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. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (31 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) No application under sub-section (3) for the gTant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. (5) If, in any case, the application under sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)." It is oqear from sub-section (3) that the complainant is entitled to appeal against the acquittal "in any case instituted upon complaint" only if he has obtained special leave to do so. It is no doubt true that, under sub-section (1), the State may also appeal against the acquittal "in any case" including a case instituted upon complaint. However, the right of the State to appeal against the acquittal in a case instituted upon complaint is, as provided by subsection (5), subject to one limitation. Once an application for special leave has been made by the complainant and refused by the High Court, no appeal against the acquittal will lie even at the instance of the State. The basis of this restriction appears to be that the right of appeal against the acquittal recorded in a case instituted upon complaint should not be exercisable at all once the High Court has examined it and not found it a fit one for grant of special leave.
(3.) SUB-section (1) of section 190 of the Code, which provides for three ways in which cognizance of offences may be taken by Magistrates, reads: "190(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate, or SUB-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a) upon receiving a complaint of facts whioh constitute such offence; (b) upon a report in writing of such facta 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." As the opening words of the sub-section postulate, this general power is subject to restrictions such as those enacted in sections 195, 196, 196A, 197, 198 and 199 of the Code. Further, by virtue of sub-section (2) of section and subsection (2) of section 5 of the Code, this provision is also subject to special enactments providing for initiation of proceedings for offences created thereunder. Exceptions apart, generally speaking a Magistrate may take cognizance of offences upon receiving a complaint, or upon a report in writing made by a police officer, or upon information received from a person other than a police officer or upon his own knowledge or suspicion. The word "complaint" as defined in clause (h) of section 4 (1) of the Code means: "Allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that seme person, whether known or unknown, has committed an offence, but it does not include the report of a police officer." A complaint, which falls within this definition, does not cease to be such merely because it is made by a public servant in the discharge of his duty as a public servant. On the other hand, section 195 of the Code forbids cognizance being taken of certain offences therein specified except upon a complaint made in writing by the public servant or the Court concerned. Even apart from this section, there are special statutes which enact that cognizance of certain offences punishable thereunder cannot be taken except upon a complaint made by the authority therein named. In all these cases, the public servant, the Court and the named authority are regarded as complainants initiating prosecution upon complaints made by them. So, section '200 occurring in Chapter XVI, which deals with complaints to Magistrates, provides: "A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided as follows:- (aa) When the complaint is made in writing nothing herein contained shall bp deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discbarge of his official duties;" It is obvious that, but for the special exemption enacted in proviso (aa) for purposes of section 200, it would have been necessary to examine at once the public servant or the Court concerned. Even so, the Magistrate taking cognizance of offences upon complaints made by the public servant or the Court concerned may, under sections 202 and 203 of the Code, postpone issue of process for attendance of the person complained against, direct an enquiry or investigation and even dismiss them summarily if in his judgment there is no sufficient ground for proceeding. In section 250 of the Code, we find the expression "in any case instituted upon complaint" which may be contrasted with "in any case instituted otherwise than upon complaint" occurring in section 249 of the Code. It may be mentioned here that, in all cases instituted upon complaint, the complainant is amenable to action under section 250 of the Code. Only the police officer, who makes a police report, is exempted from the operation of that section because he should not be hampered in the performance of his duty by the fear of action being taken against him under that section: Mahomad Meera v. Dattatraya Balaji, AIR 1947 Bom. 36=ILR 1946 Bom 908.' Finally, all cases instituted upon complaints, irrespective of whether they are filed by public servants or Courts or private persons, are dealt with alike in accordance with the procedure indicated by either section 207 or section 251 of the Code. In view of these considerations, except in the case of a police report, a public servant instituting a prosecution in the discharge of his duty as such public servant must be regarded as a complainant and the allegations made by him for taking action against the person complained against must likewise be regarded as a complaint.;