R.K. Das, J.
1. This is a complainant's appeal against an order, dated 11-7-1963 passed by the Sub-divisional Magistrate, Bhubaneswar, acquitting the respondents of an offence under Section 411, Indian Penal Code.
2. Accused Dayauidhi is the Manager and accused Ganesh is an employee of Messrs. Patnaik Industries (P.) Limited, Bhubaneswar. P. W. 1, Sudhakar Das, is the managing director of another concern known as Orissa Concretes Products Ltd., near about the above firm at Bhubaneswar. On 17-6-1961, P, W. 1 came to know that some high-tension steel wires had been stolen from their factory. On 16-6-1961 at about 8 in the morning, P. W. 1 went to the factory premises of Patnaik Industries and found one coil in their store which he identified as their coil. Accused Dayanidhi was then absent from the factory. So P. W. 1 went to his residence and informed him that one of their missing coils was found in the premises of Patnaik Industries. Dayanidhi felt surprised and promised to look into the matter. Sometime after though Dayanidhi came to the factory, he avoided to cooperate with P. W. 1 when the latter wanted to see their stores. So P. W. went to the Police station and lodged F. I. R. (Ex. 1).
The police came to the spot, out found that the coil had then been cut into several pieces, though a portion of it was there. As there was some delay by the Police in completing the investigation of the alleged theft of the coil, P. W. 1 filed a complaint petition in the Court of the S. D. Magistrate on 29-7-1961. The Magistrate examined the complainant on oath but as it was disclosed that an F. I. R. had already been with the Police, the Magistrate asked the officer-in-charge of the Capital Police Station to submit a report. Though the case was adjourned from time to time for about a year, the Police did not file the final Form. So on 1-8-1962 the Sub-divisional Magistrate brought this matter to the notice of Assistant Superintendent of Police Bhubaneswar and on 10-8-1982 took cognizance and summoned both the accused under Section 411, Indian Penal Code. In the meanwhile the police having started a G. R. Case, the Magistrate by his order dated 30-8-1982 directed that G. R. Case should be clubbed with the complaint case.
3. The plea of the accused was one of denial. Their case was that the coil in question was a part of their stock and was not an article of theft.
4. In support of the prosecution case some witnesses were examined including some employees of the complainant's company. Reliance was also placed on the recovery of some cut pieces of wires from near the work-shop and a portion of the coil from the store-room of Patnaik Industries under seizure list, Ext. 3. The learned Magistrate found that the prosecution had tailed to prove that the properties recovered from the factory premises of the accused were stolen properties and the accused persons to he in exclusive possession of the same. He accordingly acquitted the accused persons. It is against this order of acquittal the present appeal has been filed.
5. Mr. Kunungo, learned counsel tor the respondent, raised a preliminary objection that this appeal in accordance with the provisions of Section 417(3), Cr. P. C. is not maintainable as the judgment now under challenge was one which was given in a case instituted on a police report and in such a case the State alone had the right to file an appeal. Mr. Rath, learned counsel for the appellant, on the other hand contended that the case having been originally instituted on a complaint filed by the appellant, the order of acquittal passed in such a case is appealable under Section 417(3), irrespective of the fact that a charge-sheet was filed in the meanwhile by the Police in respect of the very same case. Before I proceed to examine the correctness of the respective contentions it is necessary to recall that the complainant first lodged an F. I. R. Ext. 1 at the Capital police station, Bhubaneswar on 19-6-1961.
Having waited For sometime when he found that the Police were not making any progress in the investigation of the case, he filed a regular complaint in the Court of the Sub-divisional Magistrate, Bhubaneswar, on 29-7-61. The Magistrate examined the complainant on oath, but did not proceed to take cognizance of the offence and awaited the police report. He adjourned the case for several dates and after waiting for about a year, when no such report was received, he himself took cognizance of the offence on 10-8-62 and summoned the accused persons under Section 411 1. P. C. The Police in the meanwhile completed their investigation and submitted the charge-sheet. The Magistrate on 20-8-62 directed that both the cases shall be clubbed together. At the hearing stage the complainant was present on several dates, but on 5-1-63 he was found absent. So the Magistrate made an order that the complainant was not taking any interest in the case and so the G. R. case as such will proceed. After hearing of the ease the accused persons were acquitted, under Section 253(1) of the Cr. P. C. by an order dated 1 1-7-03. Against this order of acquittal the complainant has filed this appeal in accordance with Section 417(3). Cr.P.C.
The question is whether the appeal by the complainant is maintainable. Section 417(3) gives the right to a complainant to file an appeal against an order of acquittal before the High Court after obtaining necessary leave for the purpose, provided the order of acquittal is passed in a case ''instituted upon a complaint' 'Complaint' has been defined as the allegation made to a Magistrate with a view to take action under the Criminal Procedure Code and does not include a report ot the Police Officer. Under the said Code, a Magistrate may take cognizance of an offence in any of the ways mentioned in Section 190. He may take cognizance on a complaint under Clause (a) or on a police report under Clause (b) or in the manner mentioned in Clause (c) of that Section. In the present case, the proceedings were initiated upon a petition of complaint under Clause (a) of Section 190 in the Court on 29-7-1961, cognizance was taken on 10-8-1962 and the accused persons were summoned under Section 411, Indian Penal Code. Prior to the filing of this complaint, the complainant had already lodged an information before the Police on 17-6-1961 and the Police also took action, on the same though belated, and filed a charge-sheet under Section 173, Cr. P. C. obviously after cognizance was taken by the Court on 10-8-1962.
When the charge-sheet was filed the Magistrate by his order dated 30-8-1962 directed that both the eases should be clubbed together. In view of such an order, the question arises whether the case started on the complaint petition still retained its identity so as to be treated as a case 'instituted upon a complaint' for the purpose of an appeal, under Sub-section (3) of Section 417 Cr. P. C. Some decisions were cited at the Bar in support of their respective contentions. Mr. Rath for the appellant relied on a case reported in Kshetrabashi Panda v. Lalit Kumar Sen Gupta, AIR 1959 Cal 595 where the complainant filed a petition of complaint and the Magistrate sent it to the Police for necessary action. After investigation the police submitted a charge-sheet. It was held by the learned single Judge in that case that for the purpose of Section 417(3), Cr. P. C. the case was 'instituted on a complaint'. In a Division Bench decision of that Court reported in Sk. Osman Gani v. Baramdeo Singh, AIR 1959 Cal 145 their Lordships however held that the expression 'any ease instituted upon a complaint' must mean only that class of cases where not merely the complainant comes to court with a petition of complaint, but the Magistrate takes the cognizance on the basis of that complaint.
But if the Magistrate refers it to the Police and takes cognizance on the police report, it cannot be held that the case was one 'instituted upon a complaint' within the meaning of Section 417(3). In a case reported in B. V. Huchappa v. N. Venkataswamy, ATR 1960 Mys 172 a Division Bench of that Court also held that where on a complaint the Magistrate orders investigation by the police and takes cognizance on the police report and after trial acquits the accused, the acquittal is not on a case instituted upon a complaint and there is thus no right of appeal under Section 417(3) of the Cr. P. C. No doubt the decision of the learned Single Judge of the Calcutta High Court supports the appellant, but a Division Bench of that Court does not appear to support that view. Moreover, in none of these cases the Magistrate took cognizance on the complaint petition, but only on the police report. Once a petition of complaint is filed before the Magistrate it is open to him to summon the accused persons immediately or he may postpone the issue of process and direct an enquiry by a magistrate on an investigation by the police with a view to ascertain the truth or otherwise of the allegation made in the complaint, and take action on the receipt of such report.
Where, for example, the police after investigation finds the case to be true and submits a report the magistrate takes cognizance under Section 190(b) though the complaint was originally instituted under Section 190(a). In such a case, as has been held by the aforesaid Division Bench decision, it cannot he said to he a case instituted on complaint. In the present case the position, however, is that cognizance was taken both under a complaint petition as also on the police report. It is well settled by authority that in respect of cognizable offences the police has the power to investigate even without orders from a Magistrate and in such cases the powers of the Magistrate and the police are complementary in nature: Emperor v. Nazir Ahmad, AIR 1945 PC 18. The procedure for trial in respect or both the classes of cases viz., a complaint case and a case based upon a police report is different including the right of appeal as provided under Section 411, Cr. P. C. in such cases the question would be what particular procedure is to be followed and whether the case shall be deemed to have been installed on a complaint on a police report. A case on the point was decided by a Division Bench of the Patna High Court reported in Haribansa Singh v. Daroga Singh, AIR 1962 Pat 27.
There, as in this case, the complainant first lodged an information at the. Police Station relating to certain occurrence and when the police investigation was going on he filed a petition before the Sub-divisional Magistrate who examined the complaint and treated it as a complaint case and directed the matter to be put up with the connected case records of the police case. The Police alter investigation submitted a charge-sheet, and the Magistrate later on passed an order directing amalgamation of both the cases, viz., the complaint case and the case based upon the police report. After trial the accused was acquitted. The question that arose was whether in view of the order of amalgamation, it could still be held that the ease was instituted on a complaint so that the right of appeal under Section 417(3) would be available to the complainant. It was held by their Lordships that the effect of the order of amalgamation was that the complaint erase was merged in the police case. In other words, the complaint case lost its identity and separate existence as it merged in the police case which only retained its identity.
In that view of the matter, their Lordships held that an appeal by the complainant under Section 417(3) was not maintainable. It is also clear from the order-sheet of the Magistrate in the present case that after submission of the charge-sheet by the Police, on 5-1-1963 the complainant was found absent the learned Magistrate ordered on that day that as the complainant was not taking any interest in the complaint case, the G. R. Case as such may proceed. Thereafter the case proceeded on the tooting that it was a case instituted on a police report. In a case of this High Court reported in Raimon Ho v. State, 1LR (1964) Cut 388: (AIR 1965 Orissa 6) the complainant filed a complaint before a Magistrate on 4-9-1961 against certain accused persons. Magistrate took cognizance of the offence and summoned the accused persons under Section 323 I. P. C. and the case was registered as a complaint case. But prior to the filing of the complaint, the same complainant had lodged information at the Police station against the very same accused persons relating to the same occurrence.
While the police investigation was going on, the complaint was filed. After submission of the charge-sheet both the complaint case and the G. R. Case went side by side relating to the same occurrence and the same accused persons. In the meanwhile, the complainant filed an application for withdrawal of the complaint case as it was found unnecessary to proceed with both the cases. The Magistrate allowed the withdrawal and recorded an order of acquittal. In the police case, however, the Magistrate convicted the accused persons. In the appeal against the said order of conviction it was contended on behalf of the accused persons that in view of the acquittal of the accused persons in the complaint case, the Magistrate had no jurisdiction to convict the accused in the police case, in view of the bar under Section 403, Cr. P. C. It was held that the order of acquittal in the complaint case was not appropriate and the proper order should have been that the complaint case is merged with the police case which alone would have been allowed to proceed.
In other words, when both the complaint ease and the police case cannot proceed side by side, in inspect of the very same offence, the proper course would be to proceed with the G. R. Case alone and not with the complaint case. The necessary consequence of such a position would be that the complainant's case would lose its identity and give way to the police case. Thus, the complainant would not be entitled to file an appeal under Section 417(3) of the Cr. P. C. In this connection, it would be useful to quote a few lines from a case reported in Mahabir Prasad v. State, AIR 1958 Orissa 11. It was held therein where the case is treated as a complaint case and it eventually ends in acquittal, the new amendment to Section 417(3) confers on the complainant right to approach the High Court directly for granting leave to appeal against such acquittal. On the other hand, by treating it as a police case, the complainant is deprived of his right to appeal and his only remedy is to request the Government to file an appeal under Section 417(1). Looking from this point, it is primarily the right of the person either to make his complaint before the Magistrate or lodge an information before the Police and thus to choose au appropriate forum for initiation of the criminal proceeding,
6. In the case of cognizable offences it is one of the statutory rights of the Police under Sections 151 and 156, Cr. P. C., to investigate without requiring am authority from a Magistrate and in fact may proceed to investigate a case on their own information and without formal information by any party. It a case is initiated on a police report, the accused also gets the advantage of the previous statements recorded by the investigating officer so as to confront the witnesses with the same at the trial. From that point of view it also appears reasonable that in a case of competition between the two parallel proceedings, one based upon a private complaint and other on a police report, the former should lose its identity and merge in the latter. Thus in such a case it would no more be open to say that the case was instituted on a complaint so as to attract Section 417(9). No doubt in a police case the complainant loses his right of appeal under Section 417(3), but he is not altogether helpless. He may still invoke the revisional jurisdiction of the High Court, where the State was not advised to tile an appeal. There is however no bar to treat this appeal as revision petition under Section 439 Cr. P. Code and proceed to examine the legality of the order now under challenge as in view of the aforesaid position, I am of the opinion that the appeal is not maintainable.
7. Now I shall turn to the merits of the case. It is not disputed that some cut pieces of wire and a portion of the coil was recovered from the factory premises of Patnaik Industries under seizure list, Ext. 3. But the mere recovery of such property is not enough to make out a case under Section 411, I. P. C. The prosecution has to establish that it was stolen property and the accused persons dishonestly retained the same knowing or having reason to believe the same to be stolen property. P. W. 1 had admitted in his evidence that their company maintains a stock-book to show the quantum of the receipts and expenditure of the stock of coils and no part of the stock is spent except with the written order of P. W. 1 who issues slips for the purpose. Curiously enough no such account-book or slips were produced and no reasons have been shown as to why such papers have been withheld. In fact, that record should have shown what exactly was the shortage in their stock due to the alleged theft. P. W. 1 admitted that there was no special mark on the said coil to show that it belongs to them, though P. W. 5 comes forward to say that he identified the wires as belonging to them as they had dent marks which is not found in other wires.
P. W. 2 the store-keeper of the complainant's company did not say a word about the identity of the recovered wires. It was not the case of P. W. 1 that the particular kind of wire was specially manufactured for them and it is not available in the market to be purchased by any other party. The prosecution has not given any satisfactory evidence that the recovered wires were part of their stock. We have already seen that the prosecution has not placed all the relevant records before the Court to show that at least some of the coils are missing. P. W. 2, the store-keeper of the complainant's company admits that he was not present at the time of verification and the wire coils were not under his control like other articles. In view of this unsatisfactory state of evidence it must be held that the prosecution has failed to prove that the articles recovered under Ext. 3 from the premises of the accused are stolen properties. Unless it is proved to be stolen property no question of drawing a presumption under Section 114(a) of the Evidence Act would arise.
It may also be mentioned that admittedly a large number of persons work in the factory of the accused. There is further evidence to show that the out-pieces of wire were recovered from the workshop which is accessible to many and the same was not in exclusive possession of either of the accused persons. No case under Section 411, I.P. C., is thus made out.
In view of this position, I do not think there is any justification to interfere with the order of acquittal passed by the learned Magistrate.
There is no merit in this appeal which is accordingly dismissed.