Jagdish Sahai, J.
1. This appeal purports to be under Section 417(3) Cr. P. C. and has been filed by Raja Ram, who had made an application under Section 476 Cr. P. C. to the Consolidation Officer for filing a complaint under Section 195(i) (c) Cr. P. C, against Ram Achal respondent on the allegation that he had committed an offence punishable under Section 471 I. P. C.
The Consolidation Officer filed a complaint against the respondent Ram Achal before a Magistrate, who convicted and sentenced the aforesaid respondent under Section 471 of the I. P. C. by his judgment dated the 21st of March, 1959. The sentence awarded was one year's R. I. Ram Achal filed an appeal before the learned Sessions Judge, Faizabad, who allowed it and acquitted Ham Achal on the 16th December, 1959 whereupon Raja Ram filed the present appeal.
2. A preliminary objection has been taken about the maintainability of the appeal on the ground that Raja Ram cannot be comprehended in the word 'complainant' occurring in Section 417(3) Cr. P. C. Section 417 so far as is relevant for our purposes reads as follows :
'417(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.
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 HighCourt......'
It would be noticed that before the provisions of Section 417(3) are attracted two conditions must be fulfilled; firstly (that the case which ended in acquittal must have been one which was instituted on a complaint, and secondly that it is the complainant who has applied for special leave and then filed an appeal in this Court. The word 'complaint' has been defined in Clause (h) of Section 4 Cr. P. C. which reads as follows :
' '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 police officer :'
In the present case it must be held that the allegations, which the Consolidation Officer made to the Magistrate for taking action against Ram Achal and on the basis of which he was prosecuted, would amount to a complaint within the definition given above. In order to be a complaint there must be four things; firstly there must be allegations made, orally or in writing, secondly the allegations must be made to a Magistrate, thirdly they must be made with a view to the Magistrate taking action and lastly it must not be a police report.
All these conditions are fulfilled so far as the complaint giving rise to this appeal in concerned. In addition it may also be stated that under Sections 476, 476-A, 476-B and 479-A Cr. P. C. the allegations which any civil, criminal or revenue court makes to a Magistrate for purposes of taking action against a person have been described as'complaint'. Consequently the conclusion is inescapable that the complaint, which the Consolidation Officer made to the Magistrate for action being taken against Ram Achal respondent, was a complaint within the meaning of Section 417(3) Cr. P. C.
3. The only further question that requires consideration is as to who of the two, Raja Ram or the Consolidation Officer was the complainant within the meaning of Section 417(3) Cr. P. C. or both of them can be comprehended in the word 'complainant' occurring in that section. In our opinion inasmuch as it was the Consolidation Officer who made allegations in writing to a Magistrate for taking action against Ram Achal, the Consolidation Officer must be held to be the complainant.
Besides, Section 476 as also some other sections in Ch. XXXV Cr. P. C. contemplate only a civil, criminal or revenue court to be a complainant and not private individuals at whose instance an enquiry is made under Section 476 or 479-A, Cr. P. C., with a view to make a complaint. The provisions falling in Ch. XXXV Cr. P. C. clearly reveal that no one other than a court can be a complainant in respect of a complaint filed under Section 476 or (479-A Cr. P. C. Sri. R.B. Misra has contended that inasmuch as Raja Ram made an application, to the Consolidation Officer with a view to action being taken against Ram Achal, his application must be deemed to be a complaint and he must be held to be a complainant.
This argument loses sight of the fact that the definition of the word 'complaint' demands that: the allegation must be made to a Magistrate and not to a Consolidation Officer. Besides the entire scheme of the provisions occurring in Chapter XXXV Cr. P. C. negatives anybody other than a civil, revenue or criminal court being a complainant in proceedings started by means of a complaint made under Section 476 or 479-A Cr. P. C. The position of Raja Ram in this case is that of an informant only. He requested the Consolidation Officer to file a complaint against Ram Achal and thereafter his part ended.
The Consolidation Officer was free to file or not to file the complaint and if he had decided not to file one, Raja Ram could not himself initiate criminal proceedings against Ram Achal. Though on the application of Raja Ram, it was ultimately the Consolidation Officer who filed the complaint and that too on the basis of his own judgment and after satisfying himself that the interest of justice would be served by filing the complaint, It is noteworthy that a civil, revenue or criminal court can file a complaint suo motu even though no request is made by any one for that purpose. Therefore the act of filing the complaint is his.
4. Again there must be a direct connection between the allegation and the prosecution in order to make an allegation a complaint. There are other provisions in the Cr. P. C. which also reveal that allegations which cannot be the direct basis for starting a criminal trial, cannot be treated to be a complaint. To illustrate the point reference may be made to the provisions of Section 190 Cr. P. C. which sets out the manner in whichcognizance of an offence has got to be taken by a Magistrate and provides that cognizance can be taken on receiving a complaint of facts which constitute an offence. That would show that the allegations must be those on the basis of which action can be taken.
In the present case no Magistrate could have taken action on the application of Raja Ram to the Consolidation Officer without the Consolidation Officer himself having made a complaint. The application that Raja Ram made to the Consolidation Officer was only for an enquiry to be made against Ram Achal. It is thus obvious that Raja Ram cannot be treated to be a complainant for the purposes of Section 417 (3) Cr. P. C. It is true that the learned Single Judge before whom the case came for admission, gave special leave to Raja Ram to file an appeal, but that would not operate as res judicata and prevent Ram Achal from challenging the competence of the appeal. The mere admission of an appeal or the mere grant of permission to file one does not conclude the matter in favour of the person to whom leave is granted or, whose appeal is admitted. At the final hearing the question with regard to the maintainability of an appeal can always be raised.
5. For the reasons mentioned above we are clearly of the opinion that the present appeal is not competent and liable to be dismissed. In view of this finding it is not necessary to go into the merits of the appeal or even to investigate the question whether the Consolidation Officer could have filed the complaint giving rise to this appeal and could be comprehended in the expression 'civil, revenue or criminal court' occurring in Section 476(1) Cr. P. C.
6. The appeal is, therefore, dismissed.