Judgment

DAS GUPTA, J. : These seven appellants were tried by the Assistant Sessions Judge, Saran, on charges under S. 395 of the Indian Penal Code and also under S. 323 of the Indian Penal Code but acquitted by him of both the charges.

2. The prosecution case was that on November 15, 1956 when Bhadai Sah, a businessman belonging to Teotith, within police station, Baikunthpur, was passing along the village road on his way to purchase patua the seven appellants armed with lathis surrounded him and demanded that he should hand over the monies he had with him. Bhadai had Rs.250/- with him but he refused to part with them. Kesho Singh, one of the appellants tried to take away forcibly the currency notes from his pocket but Bhadai caught hold of his arm and raised an alarm. On this all the appellants assaulted him with their lathis and as he fell injured Kesho Singh took away the money from his pocket. Bhadai thereupon filed a petition of complaint in the Court of the Sub-Divisional Magistrate, Gopalganj, on November 22, 1956. The Magistrate after examining him on solemn affirmation made an order asking the Sub-Inspector of police, Baikunthpur, to institute a case and report by December 12,1956. Ultimately a charge-sheet was submitted by the police and the accused persons were committed to the Court of Sessions. The Sessions Trial ended, as already stated, in the acquittal of all the appellants.

3. Against the order of acquittal, Bhadai Sah filed an appeal under S. 417(3) of the Code of Criminal Procedure in the High Court of Judicature at Patna. On the following day two learned Judges of the High Court made the order : "The appeal will be heard". The appeal then came up for hearing before two other learned Judges of the Court who being of opinion that the learned Sessions Judge had rejected the prosecution evidence "on unsound standards without any real effort to assess the credibility of the evidence" and that the prosecution case was fully established by the evidence, set aside the order of acquittal and convicted the appellants under S. 395 of the Indian Penal Code and sentenced them to two years rigorous imprisonment.

4. Against this order of the High Court the present appeal has been filed by special leave of this Court.

5. The main contention urged in support of the appeal is that in this case no appeal lay to the High Court against an order of acquittal, under S. 417(3) of the Code of Criminal Procedure. This provision in S. 417 was introduced in the Code by the Amending Act XXVI of 1955, giving a complainant a right of appeal against acquittal where a case is instituted upon a complaint. Before this new legislation only the State Government had the right to appeal against an order of acquittal. The result of the new provision in sub-s. (3) is that if an order of acquittal is passed by any court other than a High Court in a case instituted upon a complaint the High Court on an application made to it by the complainant in this behalf may grant special leave to appeal from the order of acquittal and on such leave being granted the complainant may present such an appeal to the High Court. It is to be noticed that this right is limited only to cases instituted upon a complaint. On behalf of the appellants it is argued that the case against them was not instituted on any complaint but was instituted on a police report.

6. The Code does not contain any definition of the words "institution of a case". It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police office