1. This is an application for special leave to appeal against an order of acquittal under Sub-section (3) of Sec. 417 of the Code of Criminal Procedure. That sub-section 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."

It is clear that an application under this subsection can only lie if the case was instituted upon complaint. In the present case, a first information report was lodged before the police. After investigation of the case, the police submitted charge-sheet. Thereafter, the accused opposite party were put upon their trial. Mr. S.P. Sinha has, however, stated that the petitioner filed a protest petition before the Sub-Divisional Magistrate before the police submitted charge-sheet, that the protest petition must be held to have been a complaint and that thus the case ought to be held to have been instituted upon that complaint.

It is true that it has been held by this Court in several cases that a protest petition