D.S. Dave, J.
1. This is an appeal by the complainant Under Section 417(3) of the Criminal P. C. against the judgment of the Sub-divisional Magistrate, Hindaun, dated the 20th of April, 1960 acquitting all the accused of offences under Sees. 323 and 325 of the Indian Penal Code.
2. A preliminary objection has been raised by learned Counsel for the accused to the effect that the case in, which his clients were tried by the said Magistrate was instituted on a police report, that it was tried according to the procedure laid down in Section 251-A of the Criminal Procedure Code and, therefore, the complainant had no right to file this appeal, that leave to appeal was granted to him by mistake since' all the facts were not disclosed and hence the appeal should be rejected.
3. In reply it is urged' by learned Counsel for the appellant that his client had filed a complaint on 4th September, 1956 against the present respondents and, therefore, leave to appeal was rightly granted to him and he has a right to proceed with this appeal Under Section 417 (3) of the Criminal Procedure Code.
4. I have gone through the record of the trial court and it appears that the appellant (complainant) did file a complaint Under Sections 323 and 325 of the Indian Penal Code against seven persons in the court of the Sub-divisional Magistrate, Hindaun. The Magistrate directed the police to make an investigation and report. On 15th October, 1956, the police challaned four accused before the said Magistrate for offences Under Sections 323 and 325 of the Indian Penal Code. On the 23rd October 1956 the Magistrate passed an order in the case which was Instituted on complaint that it should be tagged with the case which was instituted on police report. No' proceedings were thereafter taken in that case which was instituted on a private complaint.
The trial of the case No. 230/18 which was instituted on the basis of the police report was made in accordance with the procedure laid down Under Section 251-A and all the four accused were acquitted. One of them died after his acquittal. The present appeal has been filed against the remaining three. It may be pointed out here that the complainant did not move the trial court to take any proceedings against the three accused whose names were mentioned In the complaint, but who were-not challaned by the police. It further appears from the record that on 27th May 1957 it was urged on behalf of the four accused who were being tried before the Magistrate that since a complaint was filed against them in the beginning, they should be tried according to the procedure laid down in Section 252 of the Criminal Procedure Code, but their request was opposed by the complainant, After hearing the arguments of both the parties, the Magistrate turned down the request of the accused an decided to proceed in- the matter Under Section 251-A of the Criminal Procedure Code.
It is thus obvious that although a complaint against the present three respondents was made by the appellant on 4th September 1956, no proceedings were taken therein after 23rd October, 1956 and the case in which the respondents were tried was instituted on a police report and they were tried according to the procedure which is laid down in Section 251-A of the Criminal Procedure Code for cases instituted on police report. Section 417 (3) permits a complainant to obtain special leave to appeal from an order of acquittal only if the order of acquittal is passed in a case instituted upon complaint. It further lays down that if special leave to appeal is granted by the High Court, the complainant may present an appeal. It Is clear from the' language of Sub-section (3) that if an order of acquittal is passed in a case instituted on a police report, leave to appeal cannot be granted to a complainant and he has no right to present an appear to this Court. In the present case the complainant had filed a complaint against the present respondents, but the respondents were not tried in the case instituted upon his complaint, but in the case which was instituted on the police report and they were tried according to the procedure laid down in Section 251-A of the Criminal Procedure Code. Under the circumstances, it is clear that leave to appeal should not have been granted to the complainant and the appeal filed by him Is not competent.
It seems that leave to appeal was granted because all the facts were not put forward before the Court, If it were brought to the notice of the Court that the case in which the accused were tried was instituted on a police report and that they were tried according to the procedure laid down in Section 251-A, the leave to appeal would not have been granted. The accused have a right to show that the leave which was granted was not in accordance with law. Mere admission of an appeal or the grant of permission to file an appeal does not preclude the accused from showing that the leave was wrongly granted or that the appeal should not have been admitted. If the Magistrate had proceeded in the case on the basis of the complaint which was originally made by the appellant on 4th September 1956 and if he had tried the case according to the procedure laid down Under Sections 252 to 259, the matter would have been different.
But as pointed out above, the respondents were tried In a case instituted oh a police report according to the procedure laid down in Section 251-A and, therefore, the complainant had no right to ask for leave to appeal or to file an appeal. It has already been pointed out above that st one stags of the case the accused had themselves moved an application that they .should be tried according to the procedure laid down untUr Section 252 of the Criminal Procedure Code and their application was opposed by the complainant. Having taken that stand, he ought not to have presented an application for leave to appeal. There is force in the preliminary objection raised by learned Counsel for the respondents. It also finds support from the view taken in Harbans Singh v. Daroga Singh : AIR1962Pat27 .
5. Since the preliminary objection prevails, the appeal is hereby dismissed. DF/M/V.B.B. Appeal dismissed.