A case instituted on complaint under Section 417(3) of the Criminal Procedure Code refers to a cause before the Court relating to the facts of the commission of an offence and ascertaining the offender. Cognizance is taken of an offence and not against offenders, and a magistrate has the power to take cognizance in respect of any other offence not mentioned in the complaint or police report and also against persons not so mentioned.

( 1 ) THIS is petition under Section 417 (3), Criminal Procedure Code, for leave to appeal against the acquittal of the four non-applicants, Lalloo Ram, Kishandas, Kundanlal and Nanhelal, in a prosecution for offence of murder, in which these four non-applicants who were acquitted, were tried jointly with two others, Ramnath and Baijnath, who were convicted of the offence of murder.

( 2 ) ONE Nanhelal, who was also known as Nanhelal Dadhiwala, the brother of the petitioner Premdas died as a result of beating administered to him. Two separate and almost simultaneous informations were lodged at the polite station house, Hoshanga-bad, in respect of this incident, one by Ramnath, one of the accused persons, and the other by Mathoo Kotwar. The Station House Officer, Hoshangabad, went to the spot and at the spot one Sunder made a report to him, wherein he implicated the four non-applicants, as well as Ramnath and Baijnath, as having participated in the assault, which resulted in the fatal injuries to the deceased.

( 3 ) AFTER investigation, the police put up a charge sheet for offence of murder of the deceased against only two, viz. Ramnath and Baijnath. Thereafter, the petitioner Premdas made an application in the Court of the committing magistrate for joining the four non-applicants, against whom no charge sheet had been presented, as accused. The application, after making a grievance of the fact that the charge sheet was against only two out of six as- suilants, went on to state:

"the applicant, who is the brother of the deceased Nanhelal, the alleged victim of the murderous assault under enquiry, desires, therefore, to call the attention of the Court with respect to this omission of the four assailants from the scheme of the case and humbly submits that proceedings at this stage be held up and action be expeditiously taken to order issue of necessary processes for securing the attendance of the said four persons, viz. (1) Lallaram, (2) Kishandas, (3) Kundanlal and (4) Nanhelal, so as to be joined as co-accused, along with Ramnath and Baijnath, who are present at the enquiry. The joining of the said four persons is called for and is necessary in the ends of justice and this Court tan independently do it because it is seized of the case. "

( 4 ) THERE was a second application moved at that very time by the petitioner that he had engaged a lawyer who should be permitted to assist the District Police Prosecutor in the conduct of the case before the Court. That application was allowed. The magistrate, after considering the application, first mentioned, ordered that the four non-applicants also be arrayed as co-accused. This was accordingly done.

( 5 ) THE committing magistrate, after making enquiry under Section 207-A, Criminal Procedure Code, committed all the six accused persons to the Court of session. After the trial, as stated earlier, the four non-applicants were acquitted and the petition under consideration is in respect of that acquittal,

( 6 ) THE locus standi of the petitioner to make a petition under Section 417 (3), Criminal Procedure Code, has been challenged. That section reads as follows : "417 (3 ). 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. "

( 7 ) THE first point for consideration is whether the acquittal of the four non applicants was in a case instituted on complaint. The learned counsel for the petitioner has urged that since the police had not presented any charge sheet against these non-applicants, and since they were arrayed as accused on the application of the petitioner, which amounted to a complaint as defined in Section 4 (h), Criminal Procedure Code, the case, so far as the non-applicants were concerned, was one instituted on his complaint, and hence he wa