Judgment

MITTER, J.: These two appeals by special leave are from one judgment of High Court of Orissa hearing an appeal from an order of acquittal of 31 persons accused on charges under Sections 147, 323 and 325 of the Indian Penal Code for being members of an unlawful assembly and having voluntarily caused hurt and inter alia a grievous one by dislocating a tooth by means of a knife-like thing of one Jagabandhu Behera, the appellant before the High Court.

2. The incident is alleged to have happened on October 4, 1963 at about 11 A. M. in village Anantpur in course of which the accused persons are said to have assaulted Jaganbandhu Behera with lathis and sharp instruments. The motive for the crime was said to be enmity arising out of Gram Panchayat election and previous litigation between Jagabandhu Behera and Khetrabasi Samal, one of the said 31 persons. The first information report was lodged at 5 p.m. by one Maguni Charan Biswal who however was not examined at the trial. In this report ten persons were stated to have taken part in assaulting and hurting Jagabandhu. More than six weeks thereafter Jagabandhu filed a complaint before a Magistrate in which he named 31 persons including those against whom the first information report had been lodged as his assailants. The complainant stated therein that he had been assaulted so mercilessly as to render him unconscious and he recovered consciousness in Anantapur Dispensary where he was treated by a doctor. From there he was taken to a hospital in Cuttack and was lodged there till November 18, 1962.

3. The Magistrate examined the complainant on the same day and directed another Magistrate of the First Class to inquire and report. On January 23, 1963 after getting the report of such inquiry and hearing the person against whom the complaint was made on their protest petition, the Magistrate held "that there was a prima facie case against the accused persons under Sections 147/323 I. P. C. except the first ten accused persons as per the complaint petition since they had already been sent for trial in G. R. No. 1943 of 1962". He took cognizance against accused persons from serial Nos. 11 to 31 as per the complaint petition under Sections 147/323 I. P. C.

4. The G. R. case had already been started on the basis of the first information report. On July 12, 1963 the complainant Jagabandhu Behera filed a petition to club the complaint case along with the analogous G. R. case and after giving a hearing to both parties the Magistrate passed an order on 15th July 1963 to the effect that the two cases were to be clubbed together and provisions of Section 252 Cr. P. C. were to be followed. The proceedings went on for an inordinately long time and ultimately on August 23, 1965 the trying Magistrate delivered a judgment acquitting all the accused. Jagabandhu Behera filed an appeal to the High Court under Section 417 (3) of the Code of Criminal Procedure and the grounds urged in support of such appeal were substantially based on the alleged failure of the Magistrate to take a proper view of the evidence.

5. Before the High Court, a point was taken on behalf of the respondents challenging the maintainability of the appeal as against accused 1 to 10 against whom cognizance was taken on the police report. Among these ten persons are the appellants in the two appeals to this Court. It was urged that as these ten persons had figured as accused in G. R. Case No. 1943 of 1962 an appeal against their acquittal would not lie at the instance of the complainant under Section 417 (3) but would only be maintainable if preferred under Section 417 (1) by the State Government. It was also contended that mere clubbing together of the cases, the G. R. case and the complainant s case, for joint trial would not change the character thereof so as to convert the G. R. case into a complaint case.

6. The High Court overruled this objection mainly on the ground that Section 239 Cr. P. C. allowed the trial of a number of perso