The main legal point established in the judgment is the interpretation of 'instituted upon complaint' under Sec. 417(3) of the Code of Criminal Procedure, and the determination that the case was not 'instituted upon complaint' based on the circumstances and actions of the complainant.

1. This is an appeal against acquittal by the complainant under Sec. 417(3) of the Code of Criminal Procedure. Appearing on behalf of the respondents. Mr. Verma has taken a preliminary point. His contention is that the appeal is not maintainable inasmuch as the case was not "instituted upon complaint."

2. The facts of the case, so far as they are necessary for deciding the preliminary point, are short. On the 12th January, 1956, appellant Harbans Singh lodged a first information report (Exhibit 3) at Phulwari police station relating to an occurrence on the 11th January, 1956. A copy of this first information report was forwarded to the Sub-Divisional Magistrate and he appears to have seen the copy on the 13th January, 1956, when G. R. Case No. 98 of 1956 was started on its basis. On the 10th February, 1956, while the police investigation was going on Harbans Singh filed a protest petition before the Sub-Divisional Magistrate who treated it as a complaint and examined Harbans Singh on solemn affirmation on the same date. Case No. 43/C/56 was started on its basis. The Sub-Divisional Magistrate ordered the matter to be put up with connected case record on the 14th February, 1950.

3. The police, after investigation, prepared chargesheet in the case on the 19th April, 1956. The chargesheet was placed before the Sub-Divisional Magistrate on the 18th May, 1956, but he could not pass any order as the record of the case was in this Court. On the 6th June, he received the record and ordered the case to be transferred to a Magistrate named Mr. B.N. Tiwary for disposal. Mr. B.N. Tiwary proceeded to hold commitment enquiry in accordance with the provisions of Sec.207-A of Chapter XVIII of the Code of Criminal Procedure. Mr. Tiwary ultimately committed the case for trial to the Sessions Court by his order dated the 4th July, 1956. The trial was held by the 1st Additional Sessions Judge of Patna who, by his order dated the 1st December, 1956, acquitted all the accused persons who are the respondents in this appeal.

4. In the meantime, Case No. 43/C/56 went on being postponed from date to date until the 6th June, 1956, the date on which the Sub-Divisional Magistrate transferred G. R. Case No. 98/56 for trial to Mr. Tiwary. On that date, he passed the following order:

"Complainant is absent. C. S. Under Sec.148/149/302 I. P. C. submitted in the police case. Amalgamated with G. R. No. 98/50 Pulwari, P. S. Case No. 4(1)56".

The question that arises for consideration is whether in view of the order of amalgamation passed by the learned Magistrate in the complaint case on the 6th June, the case can be held to have been instituted not only upon the police chargesheet but also upon the complaint. There is no provision in the Criminal Procedure Code for amalgamation of one case with another. The word "amalgamation" means, according to Websters Dictionary, to compound or mix, to coalesce, as a result of growth, or to merge. We have omitted some other meanings The effect of the order of amalgamation, therefore, is that the complaint case was merged with the police case. There was no separate evidence to be adduced in the complaint case and, therefore, ail that is signified by the order of amalgamation is that the result of the complaint case was to be the same as that of the police case. In other Words, the complaint case lost its identity and separate existence as it merged with the police case which retained its identity. The Magistrate also accordingly followed the procedure laid down in Sec.207-A and not the procedure specified in the other provisions of Chapter XVIII.

5 We may also say that the complainant himself lost interest in the complaint Case after he came to know that the police was going to submit charge-sheet. The next date fixed in the complaint case after the 19th April, 1956 Was the 25th April, 1956. The complainant was absent on the date and also on the next 3 dates i.e., 18th May, 1936, 23rd May, 1950 and 6th June, 1956. Tha