1. This is an application under Section 417 (3), Cr.P.C., for leave to appeal against an order of the First Class Magistrate of Bhanpura dismissing a complaint filed by Shri R.P. Dubey, Range Forest Officer, against Daulatsingh in respect of offences under Section 26 (f) and (h) of the Madhya Bharat Forest Act, 1950, on account of the non-appearance of the Range Forest Officer on the date of hearing of the case.
2. On behalf of the accused, Mr. Balwantsingh has raised the preliminary objection that the prosecution being on behalf of the State and the proposed appeal being also one on behalf of the State, it can only be filed under Section 417 (1) of the Criminal Procedure Code by the Public Prosecutor under the direction of the State, Government and that, therefore, the present application purporting to be one under Section 417 (3) for leave to appeal from the order of acquittal is incompetent.
In our judgment, this preliminary objection must prevail. Section 417 (1), Cr.P.C., lays down 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.' The provision gives the right of appeal to the State from an order of acquittal in any case whether instituted upon a Police report or upon a complaint, and whether the complaint is made by a private person or by a Court or by a public servant acting or purporting to act in the discharge of his official duties.
The right of appeal conferred on the State under Section 417 (1) is only subject to the restriction mentioned in Sub-section (5) and to the restriction that every appeal by the State shall be made through the Public Prosecutor. Now, it cannot be denied that a prosecution instituted on a complaint of the Court or of a public servant in the discharge of his official duties is a prosecution by the State. The scheme of the Criminal Procedure Code is to recognise two agencies of prosecution, namely, the State and private persons. It is not that a prosecution by the State must always be on a Police report.
A prosecution though instituted on a complaint would none-the-less be a prosecution by the State if the complaint is by a public servant acting in the discharge of his official duties. That in this case an appeal against the acquittal of the non-applicant could only be filed by the State through the Public Prosecutor is plain enough from Section 417 (1), Cr. P. C. But Mr. Pande, learned counsel for the applicant, put forward the argument that under Section 417 (3) in a case instituted upon a complaint the complainant is entitled to appeal from an order of acquittal with the leave of the Court and that 'complaint' as defined in Section 4 (1) (h), Cr.P.C., meant a complaint not only by a private person but also by a public servant in the discharge of his official duties.
There are two answers to this contention. The present application for leave to appeal and the pro-posed appeal are by the State and not by the Forest Ranger, the complainant. Secondly, Sub-section (3) of Section 417, Cr.P.C., confers the right of appeal to the complainant in a case instituted upon the complaint of a private person and not 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 being one by the State, and the State having the right of appeal in any case under Section 417 (1), Cr.P.C., the words 'complaint' and 'complainant' in Sub-section (3) can refer only to a private complaint and to a private complainant.
This conclusion is further reinforced by the fact that before Section 417, Cr.P.C., was amended by Act No. 26 of 1955, the right of appeal against an order of acquittal was available only to the State Government. Before the amendment, a private person had no right of appeal against on order of acquittal and the object of the amendment incorporated in Sub-section (3) is to confer the right of appeal on a private party with the leave of the High Court. For these reasons, in our opinion, this application for leave to appeal under Section 417 (3) is incompetent and it is accordingly rejected.
3. I agree.