Judgment

HIDAYATULLAH, C.J.I. :- This is an appeal by special leave against the judgment and order of the High Court of Mysore dated November 28, 1966 in Misc. Criminal Petition No. 610 of 1966. By that order the High Court held that the present appellant Bhimappa had no locus standi to invoke Section 417 (3) of the Code of Criminal Procedure and to ask for special leave to file an appeal against the acquittal of the respondents. The appellant questions the correctness of the order.

2. Bhimappa (appellant) had a house at Athni, Taluka Belgaum District. It stood in the name of his eldest son and his two other sons lived in one part of the house and the other part was let out to the first respondent Laxman who ran a boarding house and also lived there with his wife and children and his mistress Champeyya, the second respondent. No rent was fixed but the sons of Bhimappa used to have their meals with respondents Nos. 1 and 2. Bhimappa asked his tenant to vacate the house as he wanted to reside in it himself and his son Yamanappa (P. W. 14) wanted space for a godown for 400 bags of groundnut purchased by him. The first respondent was asked to vacate a portion of the house but was reluctant.

3. It is not necessary to give the details of what happened further. Suffice it to say that the house was set on fire to cause loss to Bhimappa. All efforts to save the house failed and it was burnt down. Yamanappa then filed a report in the police station. The police arrested respondents Nos. 1 and 2 and submitted a charge-sheet against them in the Court of Junior Magistrate, Athni.

4. Bhimappa was dissatisfied that the police had not prosecuted Melappa, respondent No. 3 also and he filed a complaint against him in the same court. The Magistrate inquired into two cases together and finding a prima facie case established committed the first two respondent and the third respondent separately to the Court of Session. The three respondents asked that the two cases be consolidated and a combined charge be framed in the case. The two Sessions cases were numbered as Sessions Trial Nos. 79, 80 of 1965. They were tried together and the Sessions Judge, Belgaum by his judgment, July 13, 1966 held the respondents not guilty and acquitted them.

5. The appellant then applied to the High Court of mysore under Sec. 417 (3) of the Code of Criminal Procedure for special leave to appeal against the acquittal of the three respondents. With the petition he filed a memorandum of appeal. The High Court held on November 28, 1966 as follows:

"The petitioner has no locus standi to prefer an appeal when the State had prosecuted the respondent in the Sessions Court. This petition is dismissed.

Sd/- H Hombe Gowda,

Chief Justice,

Sd/- M. Santhosh."

6. Bhimappa filed also a revision application, which was dismissed on December 5, 1966 by C. Honniah, J. Bhimappa s request for a certificate was also rejected. He now appeals to this Court. His contention is that he had a right to move the High Court under Section 417 (3) of the Code of Criminal Procedure for special leave as the order of acquittal was passed in a case instituted upon his complaint. The High Court could not, therefore, hold that he had no standing to move the High Court under S. 417 (3) of the Code of Criminal Procedure.

7. Sub-section (3) of Section 417 as an amendment was introduced by Act XXVI of 1955. Previously the right of appeal against acquittal belonged only to the State Government. By the amendment this right is also conferred on a complainant if the order of acquittal is passed in any case instituted upon complaint. The sub-section may be read here:

"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 High Court."

Under sub-section (4) the application has to be made within 60 days from the date