A public servant instituting a prosecution in the discharge of his duty as such public servant must be regarded as a complainant and the allegations made by him for taking action against the person complained against must likewise be regarded as a complaint.

( 1 ) THIS case comes before us on a reference made by Newaskar and Sen JJ. who found themselves unable to concur in the view expressed in the following observations made by another Division Bench of this court in State v. Daulatsingh, air 1957 Madh Pra 72.

"there are two answers to this contention. The present application for leave to appeal and the proposed appeal are by the State and not by the forest Ranger, the complainant, Secondly, Sub-section (3) of Section 417, Criminal Procedure Code, confers the right of appeal to the complainant in a case instituted upon the complaint of a private person and not upon the complaint of a public servant or of a court. The prosecution on the complaint of a Court or of a public servant acting in the discharge of his official duties being one by the State, and the State having the right of appeal in any case under Section 417 (1), Criminal procedure Code, the words 'complaint' and 'complainant' in Sub-section (3) can refer only to a private complaint and to a private complainant. "

( 2 ) THE facts of the case so far as they are necessary for this reference may be shortly stated. In virtue of the powers conferred upon the Drugs Inspector under section 32 of the Drugs Act, 1940, he instituted, by means of a complaint filed by him, a prosecution against the respondents for contravening the provisions of section 18 of that Act and thereby committing offences punishable under Section 27 thereof. The respondents, who had been convicted and sentenced to pay fines for the offences committed by them, were acquitted in appeal. The Drugs inspector then appealed against the acquittal after applying for, and obtaining, special leave so to do under Sub-section (3) of Section 417 of the Code of Criminal procedure. When the appeal came up for hearing before Newaskar and Sen JJ. the respondents raised a preliminary objection grounded upon the observations reproduced earlier that the special leave obtained in this case could not have been given to the Drugs Inspector, who, being a public servant, had filed the complaint in the discharge of his duty as a public servant Thereupon, as indicated earlier, newaskar and Sen JJ. made this reference.

( 3 ) WE may state at the outset that in AIR 1957 Madh Pra 72 (Supra) the application for special leave under Sub-section (3) of Section 417 of the Code wan made by the State itself, Since, as provided by Sub-section (1) of Section 417 of the Code, the State could directly appeal against acquittal "in any case" including a case instituted upon a complaint, without being obliged to obtain special leave, the application could be dismissed on that short ground and it was not necessary to consider whether a public servant, who had filed a complaint in the discharge of his duty as a public servant, was entitled to apply for special leave under Subsection (3) of Section 417 of the Code. Even so, since the question arises directly and is of general importance, we proceed to consider it.

( 4 ) SECTION 417 of the Code reads;

" (1) Subject to the provisions of Sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. (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. (4) No application under Sub-section (3) for the grant of special leave to appeal