Sadhu Singh vs Devi Dayal Kohli

R.S. Sarkaria, J.—The material facts leading to this order as are follows:-

Amar Singh, son of Bakshi Singh of Ambala City made a complaint against Devi Dayal Kohli, alleging commission of offences under sections 406/379/509, Indian Penal Code. After trial the Judicial Magistrate 1st Class, Ambala, acquitted the accused by a judgment dated 12th March, 1968. Amar Singh died during the pendency of the case in the trial Court and thereafter it seems that the proceedings were continued by his son, Sadhu Singh, though it is not clear whether he was granted the necessary permission u/s 495, Criminal Procedure Code, for continuing the conduct of the prosecution in place of the deceased.

The complainant''s son, Sadhu Singh, after obtaining special leave u/s 417(3), Criminal Procedure Code, has filed this appeal against the aforesaid order of acquittal.

An application has been made u/s 561-A, Criminal Procedure Code, in which it is, inter alia, stated that the parties have compromised the matter, and, in consequence, the appellant be allowed to withdraw the appeal. It is well settled that section 494 of the Code of Criminal Procedure does not extend to the withdrawal of appeals. That section expressly lays down that the case may be withdrawn by the Public Prosecutor with the consent of the Court "before the judgment is pronounced" by the trial Court. The words "in other cases before judgment is pronounced", occurring in section 494 provide for the extreme limit up to which a case pending before the trial Court can be withdrawn. They cannot be extended to cover an appeal which is a post-trial matter. Thus, even if it is assumed for the sake of argument that Sadhu Singh was duly authorised u/s 495, Criminal Procedure Code, to continue the prosecution after the death of his father in the trial Court, he will not be competent to withdraw this appeal u/s 494 or under any other provision of the Code. This request is, therefore, declined.

The next contention of the Learned Counsel for the respondent, however, is that Sadhu Singh was not competent to file this appeal u/s 417(3), Criminal Procedure Code, because he was not the complainant. It is maintained that this objection is not merely one of form but is one which goes to the root of the matter. A successor-in-interest of a complainant-proceeds the argument-even if he had been allowed u/s 495 of the Code, in the trial Court to conduct the prosecution, does not become the "complainant" for the purposes of section 417(3), Criminal Procedure Code. Reliance for this argument has been placed on On the death of Monmathanath Halder his heirs and sons Sachindra Nath Halder and Others Vs. Niranjan Mondal and Others, and Nanilal Samanta Vs. Rabin Ghosh, There appears to be a good deal of force in this contention.

The case turns on an interpretation of the term ''complainant'' as used in section 417(3), Criminal Procedure Code. This term as such, has not been defined in the Code. Section 4(1)(h) of the Code, however, defines ''complaint'' as under:-

''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.

It follows from the above definition that the "complainant'''' would be a person who institutes the complaint. Section 417(3) provides that if an order of acquittal is passed in any case instituted upon a 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 complaint may present such an appeal to the High Court. There is no doubt that the instant case was instituted upon a complaint made by Amar Singh. The only question is: whether after his death, his son, Sadhu Singh even if he was allowed u/s 295 of the Code to continue the prosecution can also be deemed as a ''complainant'' within the contemplation of sub-section (3) of s. 417. In our judgment, the answer to this question must be in the negative. From the definition of the word ''complaint'', it follows that complainant is one who sets the machinery of a Magisterial Court in motion by making certain allegation with regard to the commission of an offence before it, for taking action against the person has infringed the law. Sadhu Singh admittedly was not the person who who had moved the Magisterial Court by presenting the complaint before it. Sadhu Singh came into the picture at a much later stage. He cannot, therefore, be treated as a ''complainant'' for the purposes of section 417(3).

The history of this legislation further shows that a strict construction is to be put on the word ''complainant'' for the purposes of sub-section (3) of section 417. Section 407 Criminal Procedure Code of 1861 expressly prohibited appeals from judgments of acquittal of any Criminal Court and an order of acquittal was final and conclusive. The extraordinary remedy of an appeal against an order of acquittal received statutory recognition for the first time in 1872, in the interest of public safety, peace and order. Even so, the right against an acquittal has been hedged around by many safeguards, the idea being that a person once acquitted after a regular trial should not be lightly vexed again with regard to the same charge. One of such safeguards is that before a person acquitted can undergo further trial for the offence of which he has been acquitted, the highest executive authority must apply its mind and hold that it is desirable, and the highest legal authority (Public Prosecutor) must advise that it is legal and proper and the highest judicial authority (High Court) must find that it is just that the order should be set aside. Before the Code of Criminal Procedure Amendment Act, 1955, only the State Government was entitled to prefer an appeal against an order of acquittal u/s 417. Applications or appeals by the complainant in the case to set aside an order of acquittal could not be entertained. The object of restricting the right of appeal against a judgment of acquittal to the State Government was to prevent abuse of the process of appeal by busy bodies or private complainants acting with a view to gratify private spite or personal vindictive-ness and to ensure that interference with an acquittal takes place only where it results in miscarriage of justice. For the first time section 3 of the Amendment Act of 1955 gave a right to a complainant on whose complaint the case had been instituted in the trial Court, to obtain special leave from the High Court for preferring an appeal against an acquittal. It will be thus seen that even after this amendment the complainant has no right to file an appeal against an order of acquittal as a matter of course. He has to obtain special leave of the High Court for doing so. In short, the right to appeal against an order of acquittal has primarily been given to the State Government. Sub-section (3) of section 417 is in the nature of an exception to that general rule. The word ''complainant'', therefore, in that sub-section has to be interpreted in a restricted sense viz., the person on whose complaint the case has been instituted in the trial Court. In the instant case it was Amar Singh, father of Sadhu Singh who had set the machinery of Criminal law in motion by making certain allegations in writing before it with regard to the commission of offences under sections 406/379/509, Indian Penal Code and had further prayed that action be taken against the accused for committing those offences Even if it is assumed that he was allowed u/s 495, Criminal Procedure Code to conduct the prosecution after the death of Amar Singh, Sadhu Singh did not become the complainant for the simple reason that the complaint on the basis of which the Magistrate had taken cognizance of the case, had not been made by him. In our opinion, the successor-in-interest of the complainant does not by operation of law become the complainant. There is no provision in the Code of Criminal Procedure which would give the status of the original complainant to the successor of the deceased complainant for the purpose of filing an appeal after special leave u/s 417(3) of the Code. In the view we take we are fortified by a Single Bench judgment of the Calcutta High Court in Monmathanath v. Niranjan Modal and others (supra).

For the foregoing reasons, we would hold that Sadhu Singh not being the complainant was incompetent to maintain this appeal and we dismiss the same.