B. C. CHAKRABARTI, JITENDRA NATH CHAUDHURI, JJ.

( 1 ) THIS is an appeal against an order of acquittal passed by the Assistant Sessions judge, Murshibad in Sessions Trial No. 2 of February, 1975 acquitting the respondents 1 to 6 of charges under Section 120b read with Sections 467 and 429 of the Penal Code.

( 2 ) LEARNED advocates for the respondents took a preliminary objection to the maintainability of the appeal at the instance of the appellant. Their contention is that an appeal being a creature of the statute could only be preferred if there are adequate provisions in that behalf in the Code itself. Mr. Chakrabarty appearing on behalf of the State also supported the contention of the respondents. In this connection a reference was made to the provisions of Section 417, Sub-section (3) of the Old code of Criminal Procedure. There is no dispute that the case is governed by the provisions of the Old Code. Section 417 empowers the State Government to present an appeal from an original or appellate order of acquittal passed by any Court other than a High Court. Sub-section (3) is an exception which provides that 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. The contention of the respondents now before us is that this being not a case instituted upon a complaint, the appeal at the instance of the complainant is not maintainable. Mr. Ray on the other hand contends that the case was to all intents and purposes, a case instituted upon a complainant and therefore he argues that the appeal is competent, Mr. Ray in the alternative contends that in any event the Memorandum of Appeal may be treated as an application for revision in the interest of justice.

( 3 ) IN regard to the first point as to whether this was a case instituted upon a complaint there seems to be no difficulty. It is true that initially the appellant filed a petition of complaint before the Magistrate. From the endorsement, it appears that a certain order was passed by the Sub-divisional Magistrate on 26. 7. 1968. What that order was does not appear from the order sheet, but form the formal F. I. R. it appears that the original petition of complaint was forwarded to the police for treating the same F. I. R. Subsequently the police after enquiry submitted a charge-sheet and the case was eventually committed to the court of Sessions for trial. That this is so would be evident from the grounds of appeal itself. In paragraph 1 it is stated that the appellant filed complaint before the learned Sub-divisional Magistrate, Lalbag on July 26, 1968. Paragraph 2 contains a brief narration of the allegations of the appellant. In paragraph 3 it is stated that the learned Magistrate was pleased to direct the Officer-in-Charge, Bhagbangola P. S. to treat the petition of complaint as first information report and to direct investigation. In paragraph 4 it is said the charge sheet was later submitted after investigation and after due committal enquiry, the respondents were committed to the court of sessions for trial. Therefore on the own admission of the appellant it is clear that upon a petition of complaint being filed the Magistrate simply forwarded the same or treating the same as a F. I. R. There is nothing to indicate that the learned Magistrate at once took cognizance into the case and examined the complainant and/or his witnesses and thereafter sent the matter for further enquiry. It may also be noted that the case was marked as a G. R. Case and not as a complaint case. In such a situation it has been argued on behalf of the respondents that the case instituted upon a complaint.

( 4 ) IN a Bench decision of this Court in the case of Osman Gani v. Baram Deo singh reported in 63 C. W. N. 181 it has been held that where in a case the complaina

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