The right of appeal is a vested right and accrues to the litigant and exists as on and from the date the lis commences.

( 1 ) TO the maintainability of this appeal on behalf of the complainant, Sk. Osman Gani, from an order of acquittal of the respondents Mr. Banerjee on behalf of the respondents has taken a preliminary objection on the two-fold ground, first, that it is not a case instituted upon a complaint so as to attract the provisions of Section 417 (3) of the Code Criminal Procedure and secondly that when the order of acquittal which is sought to be challenged in this appeal was passed the complainant had no right of appeal and the fact that by subsequent legislation a right of appeal was conferred on the complainant from an order of acquittal would not accrue to the benefit of the complainant so as to entitle him to file an appeal after this legislation came into force.

( 2 ) THE facts which are necessary to be stated for disposing of this two-fold objection of Mr. Banerjee are briefly as follows : On 2-2-1953 the complainant filed a petition of complaint against the respondents and others before the Suburban Police Magistrate, Alipore. The Magistrate did not examine the complainant on oath on receipt of the complaint but on that date he ordered the petition to be put up on the 3rd as it was too late. On the 3rd of February, he passed the following order : "perused petition. To O. C. Watgunge P. S. for taking cognizance in the matter if materials be forthcoming. " then on 19th February, he made the following order; "seen police report according to which there are materials for taking up cognizance. The police ,to take up cognizance as per order dated 3-2-53. . The police submitted a charge-sheet against the respondents who were alleged to be on police bail. They were convicted on 11-4-1955. On appeal they were, however, acquitted on 25-11-1955 by an additional Sessions Judge. This appeal is directed against this order of acquittal.

( 3 ) MR. Banerjee's contention on the first point is that although the complainant first moved the court with a petition of complaint the complainant was not examined on oath and the Magistrate did not take cognizance of the offence or offences alleged in that complaint but what he did was to refer the matter to the police for investigation after taking cognizance and the Magistrate later took cognizance on the police report so that it ceased to be a case instituted on a petition of complaint. It is necessary to examine this contention somewhat closely. The expression "any case instituted upon complaint" used in Section 417 (3) of the Code of Criminal Procedure means either of two things. It may mean a case in which the first step taken to move the Magistrate is a petition of complaint whether or not cognizance is taken upon it or it may mean a case in which not merely a petition of complaint is filed but the Magistrate takes cognizance upon it. The question is which of these two meanings can be ascribed to the expression as used an Section 417 (3) of the Code. For a correct decision of the point it is necessary to look into the use of similar expressions in the Code and to the whole scheme of the Code of Criminal Procedure as far as the cognizance of offence or offences is concerned. Before doing so, I may at once point out that the self-same expression "any case instituted upon complaint" is used in Section 250 (1) of the Code of Criminal Procedure and Section 249 of the Code uses the expression "any case instituted otherwise than upon complaint" so that when Section 417 (3) was introduced by the latest amendment of the Code of Criminal Procedure, it was not really using a new expression at all but it was using an expression which was already in the Code in Section 250 (1 ). In part VI of the Code which deals with proceedings in prosecutions there are altogether 16 chapters from Chapter XV to Chapter XXX. Of these chapters we are concerned primarily with Chapters XV. XVI and XVII to start with. Chapter XV again is divided into two parts, A and B. The first part commencing from Section