The complainant alone has the right to present an application for special leave to appeal in a case instituted upon a complaint filed by him.

1. This application under Sec. 417 (3) of the Code of Criminal Procedure for special leave to appeal against an order of acquittal arises in the following circumstances :

The petitioner applied before the Sub-Divisional Officer under Sec. 69 of the Bihar Tenancy Act for division of crops standing in some bhaoli lands. The Sub-Divisional Officer appointed a mukhtear as pleader -- Commissioner to divide the crops. The Commissioner reported that the opposite party obstructed him in dividing the crops. The petitioner then filed an application before the Sub-Divisional Officer, praying that he should file a complaint against the opposite party under Sec.195 of the Code of Criminal Procedure. The Sub-Divisional Officer, after satisfying himself, filed a complaint against the opposite party for an offence under Sec.186 of the Penal Code. The opposite party were accordingly put upon their trial and the trial Court convicted them of that offence. On appeal, however, the learned Sessions Judge of Monghyr has acquitted the opposite party.

2. Quite clearly, the complaint in this case was filed by the Sub-Divisional Officer, Sub-section (3) of Sec. 417 runs as follows:

"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."

3. The stamp reporter has reported that this application for special leave to appeal cannot be entertained at the instance of the petitioner because he was not the complainant in the ease. Appearing on behalf of the petitioner, however, Mr. Kaushal Kumar Sinha has argued that the petitioner was the real complainant in the case. He has drawn our attention to the definition of "complainant" in Section 4 (h) of the Code of Criminal Procedure, which is as follows:

" Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of police officer."

Mr. Kaushal Kumar Sinhas contention is that the petitioner is the complainant in the case because, in his application before the Sub-Divisional Officer for filing a complaint under Sec.105 of the Code of Criminal Procedure, he made an accusation that the opposite party had committed an offence and he also made a prayer that the Magistrate should take action under the Code. On this basis, he has urged that the petitioner was the complainant in the case. I find it impossible to accept this contention.

Under Sec.195 (1) (a) of the Code of Criminal Procedure, no Court can take cognizance of an offence punishable under Sec.186 and some other sections of the Penal Code except on the complaint in writing by the public servant concerned or by some other public servant to whom he is subordinate. That being so, the Sub-Divisional Officer, who filed the complaint as required under Sec.195 (1) (a) is, in our opinion, necessarily the complainant. The mere fact that the petitioner filed an application, praying to the Sub-Divisional Officer to file the complaint does not constitute him into a complainant.

4. Mr. Kaushal Kumar Sinha has then argued that, by making the provision for an appeal against an order of acquittal in Sub-section (3) of Sec. 417, the Legislature intended to give a right to the private prosecutor to file such an appeal and that the petitioner, therefore, has the right to present this application for special leave because he is the private prosecutor. This argument also appears to us to be without any substance. It is clear from Sub-section (3) of Sec. 417 that it is the complainant alone who can present an application under that section in a case which was instituted upon a complaint filed by him.

If the case was instituted upon a charge-sheet, submitted by the police, the privat