# BHIMAPPA BASSAPPA BHU SANNAVAR v. LAXMAN SHIVARAYAPPA SAMAGOUDA AND OTHERS

- **Citation:** [1971] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1970-03-11
- **Case number:** Criminal Petition No. 610 of 1966
- **Bench:** M. H!Dayatullah, A. N· Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhimappa-bassappa-bhu-sannavar-v-laxman-shivarayappa-samagouda-and-others-4986
- **Pages:** 7

## Headnote

Code of Cri1ninal Procedure 1898, s. 417(3)-Po/ice filing chargesheet against two accused--Appellant filing co1nplaint against third accu ... ed
-Acquittal of all accused by Sessions Court-Whether appellant entitled to
file petition for special leave under s. 417(3) in the case ngainst the third
l/ccused.
The appellant's house was set on fire an<l burnt <lown.
As a result o'f
a report filed by his son the police arrested Respondents I and 2 and
·;ubmitt.:d a charge-sheet against them.
The appellant was dissatisfied
that the police had not prosecuted Respondent No. 3 also and he filed
<:. cotnplaint against him in the same Coti'rt.
The Magistrate inquired
into the two cases together and committed separately the first t\VO respondents an<l the third respondent separately to the Court of Sessions.
After the Sessions J udgc had held all the three respondents not guilty and
ocquitteJ them, the appellant applied under s. 417(3) Cr. P.C.. for special
leave to appeal against the acquittal of the three respondents; but this
petition was dismissed by the High Court on the ground that the petitioner had no locus startdi to prefer an appeal when the State had proM
secuted the respondents in the Sessions Court.
A revision application
filed by the appellant was also rejected.
On appeal to this Court.
HELD : The appclh1'nt \Vas entitled to have a hearing of his petition
for special leave under s. 417(3) and the case must therefore he remitted
to the High Court for this purpose.
The answer to the question ·wl1ether
the appellant had a right to move the High Court for special leave under
s. 417(3) depended upon whether there was a case instituted by him
upon a con1plaint in vvhich an acquittal was recorded, for this is the ·
requirement of the speC"ial section anJ also the condition precedent to
the right. [4 Bl
On the facts, there coul<l be no doubt that one of the cases was
instituted on the report of a police officer and the o_ther on the complaint
of the complainant.
There could be no question oI merger because the
identity of the two cases was maintained right<upto the end of the Sessions
Tfial.
The case of the appellant proceeded on its own number and although evidence was led in both cases together, the acquittal was recorded separately in each of the two cases.
The appellant was therefore
entitled to move the High Court for special leave in his own case. [6 G]
The fact that the appellant had also applierl for revision which was
rejected and had applied for special leave against that order which was
refused bv this Court, did not mean that that must conclude the matter.
The appellant's statutory right to move the High Court could rot be lost
by reason of the revision and the result of the revision, had no bearing
upon the natter. [7 BJ

## Text

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BHIMAPPA BASSAPPA BHU SANNAVAR
v.
LAXMAN SHIVARAYAPPA SAMAGOUDA AND
OTHERS
March 11, 1970
[M. H!DAYATULLAH, C.J., A. N· RAY ,AND I. D. DUA, JJ.]
Code of Cri1ninal Procedure 1898, s. 417(3)-Po/ice filing chargesheet against two accused--Appellant filing co1nplaint against third accu ... ed
-Acquittal of all accused by Sessions Court-Whether appellant entitled to
file petition for special leave under s. 417(3) in the case ngainst the third
l/ccused.
The appellant's house was set on fire an<l burnt <lown.
As a result o'f
a report filed by his son the police arrested Respondents I and 2 and
·;ubmitt.:d a charge-sheet against them.
The appellant was dissatisfied
that the police had not prosecuted Respondent No. 3 also and he filed
<:. cotnplaint against him in the same Coti'rt.
The Magistrate inquired
into the two cases together and committed separately the first t\VO respondents an<l the third respondent separately to the Court of Sessions.
After the Sessions J udgc had held all the three respondents not guilty and
ocquitteJ them, the appellant applied under s. 417(3) Cr. P.C.. for special
leave to appeal against the acquittal of the three respondents; but this
petition was dismissed by the High Court on the ground that the petitioner had no locus startdi to prefer an appeal when the State had proM
secuted the respondents in the Sessions Court.
A revision application
filed by the appellant was also rejected.
On appeal to this Court.
HELD : The appclh1'nt \Vas entitled to have a hearing of his petition
for special leave under s. 417(3) and the case must therefore he remitted
to the High Court for this purpose.
The answer to the question ·wl1ether
the appellant had a right to move the High Court for special leave under
s. 417(3) depended upon whether there was a case instituted by him
upon a con1plaint in vvhich an acquittal was recorded, for this is the ·
requirement of the speC"ial section anJ also the condition precedent to
the right. [4 Bl
On the facts, there coul<l be no doubt that one of the cases was
instituted on the report of a police officer and the o_ther on the complaint
of the complainant.
There could be no question oI merger because the
identity of the two cases was maintained right<upto the end of the Sessions
Tfial.
The case of the appellant proceeded on its own number and although evidence was led in both cases together, the acquittal was recorded separately in each of the two cases.
The appellant was therefore
entitled to move the High Court for special leave in his own case. [6 G]
The fact that the appellant had also applierl for revision which was
rejected and had applied for special leave against that order which was
refused bv this Court, did not mean that that must conclude the matter.
The appellant's statutory right to move the High Court could rot be lost
by reason of the revision and the result of the revision, had no bearing
upon the natter. [7 BJ
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal No.
166 of 1967.
2
SUPREME COURT REPORTS
[1971] l S.C.R.
Appeal by special leave from the judgment and order dated
November 28, 1966 of the Mysore High Court in Criminal Petition No. 610 of 1966.
V. K. Sanghi and M. S. Narasimhan, for the appellant.
S. S. Ja1,ali and M. Veerappa, for respondents Nos. 1 and 2.
R. Gopaldkrishnan, for respondent. No. 3.
S. P. Nayar, for respondent No. 4.
The Judgment of the Court was delivered by
Hidayatullah, C.J.-This is an apprnl by special leave against
the judgment and order of the High Court of Mysore dated
November 28, 1966 in Misc. Criminal Petition No. 610 of 1966.
By that order the High Court held that the present appelill.Ilt
Bhimappa had no /ocus-standi to invokes. 417(3) of the Code of
Criminal Procedure and to ask for special leave to file an appeal
against the acquittal of the respondent.
The appellant questiOllls
the correctness of the order.
Bhimappa (appellant) had a house at Athni, Taluka Belgaum
District.
It stood in the name of his eldest son anfd his two other
sons lived in one part of the house and the other part was let out
to the first respondent Laxman who ran a boarding house and also
lived there with his wife and children and his mistress Champevva,
the second respondent.
No rent was fixed but the sons of Bhimappa used to have their meals with respondents Nos. 1 and 2.
Bhimappa asked his tenant to vacate the house as he wanted to
reside in it himself and his son Yamanappa (P.W. 14) wanted
space for a godown for 400 bags of groundnut purchased by him.
The first respondent was asked to vacate a portion of the house
but was reluct11nt.
It is not necessary to give the details of what happened further.
Suffice it to say that the house was set on fire to cause loss to
Bhimappa.
All efforts to save the house failed and it was burnt
down.
Yamanappa then filed a report in the police station. The
police arrested respondents Nos. 1 and 2 and submitted a charge
sheet agai.nst them in the court of Junior Magistrate, Athni.
Bhimappa was dissatisfied that the police had not prosecuted
· M~llappa, respondent No. 3 also and he filed a complaint against
him in the same court. The magistrate inquired into the two case'
together and finding a prima fade case established committed the
first two respondents and the third respondent separately to the
Court of Sessions.
The three respo.ndents asked that the two cases
be consolidated and a combined charge be framed in the case.
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BHIMAPPA V. LAXMAN (HidiI,vatullah. C.J.)
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The two sessions cases were numbered as Sessions Trials Nos.
79-80 of 1965.
TiJ.ey were tried together and the Se~sions Judge,
Belgaum by his judgment, July 13, 1966 held the respondents not
guilty and acquitted them.
The appellant then applied to the High Court of Mysore under
s. 417 ( 3) o.f the Code of Criminal Procedure for special leave to
appeal against the acquittal of the three respondents.
With the,
petition he filed a memorandum of appeal.
The High Court hetcl_ ..
on November 28, 1966 as follows :
"The petitioner has no locus standi to prefer an
appeal when the State had prosecuted the respondent
in the. Sessions Court.
This petition is dismissed.
Sd/- H. Hombe Gowda,
Chief Justice,
Sd/- M. Santhosh,"
Bhimappa filed ·also a revision application, which was dismissed on December 5, 1966 by C. Honniah J. Bhimappa's request
for a certificate was also rejected.
He now appeals to this Court.
His contention is that he had a right to move the High Court under
s. 417 ( 3) of the Code of Criminal Procedure for special leave
as the order of acquittal was passed .in a case instituted upon .his
complaint.
The High Court could not, therefore, hold that he
had no standing to move the High Court under s. 417(3) o.f the
Code of Criminal Procedure.
Sub-section 3 of s. 417 as an amendment was introduced by
Act XXVI of 1955.
Previously the right of appeal against
acquittal belonged only to the State Government. .By the amendment this right is also conferred on a complainant if the order of
acquittal is passed in any case instituted upon complaint.
The
sub-section may be read here :
"3. If such an order of acquittal is passed in anv
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."
Under sub-section 4 the application has to be made within 60 days
from the:date of the order of acquittal wlu1e under subcsection 5
i.[ the application under sub-section 3 for the grant of special leave
to appeal from the order of acquittal is refused, no ·appeal from
that order 'of acquittal shall lie at the instance of the State
Government.
4
SUPREME COURT REPORTS
[1971] l S.C.R.
The short q-Uestion. in this case is whether the sessions case
'tarted on the complaint of Bhimappa entitles him to move the
High Court for special leave (a) against all the three respondents
or (b) at least against respondent No. 3.
The answer to this question depends upon whether we can say
that there was a case instituted upon a complaint by Bhimappa in
which an acquittal was recorded. for these are the words of the
sub-,~ction and also the condition precedent to the right.
The
word 'case' is not defined by the Code but its meaning is well·
under:ctood in legal circles.
In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to
have committed an offence.
In other contexts the
word
may
represent other ki:-ids of proceedings but in the context of the
sub-section ;t must mean a proceeding which at the end results
either in discharge, conviction, or acquittal of an accustd person
What is meant by 'instituted' may next be explained.
There
are three different ways in which cognizancf is taken by Magistrates of offences.
This is stated in s. 190 of the Code.
They
.are :
(a) upon receiving a ':OOmplaint of the facts which
constitute an offell.(;e·;
( b) upon a report in writing ot such facts made by
any police officer; and
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( c) upon information received from ar:y person other
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than. a police officer, or upon his own knowledge
or suspicion,
that such offence has
been
committed."
The third sub-section, therefore, obviously refers to a case in which
cognizance is taken upon a complaint of facts constituting an
offence.
The word 'complaint' has been defined in s. 4(1)(h)
and means an allegation made orally or in writing to a Magistrate,
with a view to his taking action, under the Code, that some
person, whether known or unknown, has committed an offence.
but it does not include the report of a police-officer.
The word 'complaint' has a wide meaning since it includes even
an oral allegation,
It may, therefore, be assumed that no fom1
is prescribed which the complaint must take.
It may only be sJid
that there must be an allegation which prima facie discloses the
con, ·1ission of an offence with the necessary .facts for the Magistrate to take action.
Section 190( 1 )(a) makes it necessary that
the alleged facts must disclose the commission of an offence.
The Code then proceeds to provide different procedures for
different cases arising under s. 190 and also in relation to the
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BHIMAPPA v. LAXMAN (Hidayatu/lah, C.J.)
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seriousness of the offence.
Chapter XVl deals with proceedings
instituted upon a compla~nt, Chapter XVIII ':"ith inquiries into
cases triable by the Court of S%s1on or the. High Court, Chapter
XX with the trial of Summons cases by Magistrates, Chapter XXI
with the trial of Warrant cases by Magistrates, Chapter XXII with
summary trials and Chapter XXIII with trial before High Coutts
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and Courts of Sessions.
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The offence here was mischief by fire with intent to destroy a
house etc. punishable under s. 436 I.P.C.
This offence is triable
exclusively by the Court of Session.
Section 207 of the Code
of Criminal Procedure provides :
"Procedure in inquiries preparatory to commitmentIn every inquiry before a Magistrate where the case
is triable exclusively by a Court of Session or High
Court, or in the opinion of the Magistrate, ought to be
tried by such Court. the Magistrate shall-
( a) in any proceeding instituted on a police report,
follow the procedure specified in section 207 A;
and
(b) in any other proceeding, follow the procedure
'pecified in the other provisions of this Chapter."
Under s. 206 the Magistrate is required to commit an accused to
the Court of Session for trial.
In cases triable by the Magistrate
himself he has to follow the procedure .for trial of cases according
to the other procedures mentioned earlier by us.
As this was a
case for the application of sections other than s. 207-A it fell under
section 208. That section provides for cases of complaint and the
complainant has to be heard when the accused appears or is
brought before the. Magistrate who has to take such evidence as
may be produced in support of the prosecution or in behalf of the
accused, or as may be called by the Magistrate.
Then under
s: 209 .the accused may be discharged unless the Magistrate considers It necessary that the person should be tried before himself
?r some other Magistrate in which case he shall proceed accordmgly. If he considers that there are reasons
to commit the
accused, he shall frame a charge, explain it to the accused obtain
from .the ~ccu~ed a. list of hi_s defence witnesses.
The M~gistrate
may 1~ hrs discretion examme any of these witnesses· and then
col!1mll. the accused to stand his trial before the Court of Session
or 1f satisfied that there are no grounds for committing the accused,
he may cancel the charge a.nd discharge the accused.
It _will be noticed that in a case involving an offence triable
exclu~1vely by the Court of Session the procedure under ss. 296-220
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SUPRFME COURT REPORTS
[1971] l SC.R.
:has to be followed if the complaint is filed initially.
There are
-other sections in the Chapter and other Supplementary provisions
·which are not relevant to the discussion and. therefore, referenc~
to the1 .. is omitted here.
The position regarding other cases triable by the Magistrate
himself or by another magistrate are laid down in Chapter XVI.
There the magistrate shall examine the complainant and the wit-
.nesses present, if any.
The Magistrate may even send the case
to the police for investigation under s. 156(3) if he is empowered
to act under s. 190.
This procedure of course does not arise in
·cases in which the trial is of an offence triable by the Court of
:Session.
As we are not concerned with the problems arising
under Chapter XVI we refrain from expressing.an opinion on the
various aspects of the problem arising under that Chapter.
For
that reason we do not refer to cases which were mainly concerned
·with trials before Magistrate.
In the p1~sem case t)le police haa put up a chargesheet against
two respondents only.
Bhimappa filed a complaint in which he
·charged these two respondents and· respondent No. 3 with the
same offence .of mischief by fire but with the aid of s. 34 I.P .C.
As he had charged the three respondents with having entered into
.a Criminal Conspiracy a charge under s. 120-B I.P.C. was also
framed while committing the accused to the Court of Sessio)i.
Mallappa was also charged under s. 436 read with s. 109 I.P.C.'
for abetment of the offence by the other accused.
The two cases
in the Magistrate's Court were registered under their own numbers
but were tried together and w.ere committed separately. In the
-Court of Session they were also registered separately and bore
numbers Sessions Cases Nos. 79 and 80 of 1965.
Both the cases
·ended in acquittal.
Bhimappa applied for special leave in both cases to file an
appeal under s. 417(3). His right to ask for special leave was
not accepted in the High Court.
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Now there can be' no manner of doubt that one of the cases
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was instituted on the report of a police officer and the other on the
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complaint of the complainant. There can be no question of
merger because the identity of the two cases is maintained right
up to the end of the Sessions trral. The case of Bhimappa pro-
-ceeded on its own number and although evidence was led in both
the cases together, the acquittal was recorded in each of the two
cases.
The police did not present a charge"sheet against Mallappa
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and the trial of Mallappa can be said to be in the other case and
not in the case filed by the police.
In this view of the matter
it is quite plain that Bhimappa was entitled to move the High
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BHIMAPPA v. LAXMAN (Hidayotu//ah, C.J.)
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Court for special leave in his own case.
The order saying that
he had no standing canno~, therefore, be sustai.ned.
Bhimappa had also applied for revision and his application
was rejected.
He applied for special leave against that order but
leave was refused by this Cou,tl. 'It \vas argued that that must
conclude the matter.
We do not agree.
Bhimappa's statutory
right to move the High Court could not be lost by reason of the
revision.
The result of the revision, therefore, had no bearing
upon· the matter.
Bhimappa was thus entitled to have a hearing of his petition
for special leave under s. 417 ( 3) of the Code.
Whether he could
ask for leave against Malappa alone or ~gains! the other two
because the charge under s. 120·B I.P.C. was framed against all
the three respondents on his complaint is a point which we do not
decide,because it will be for the High Court to consider the matter
when his petition is considered and only i_f it is allowed.
We accordingly set aside the order of the High Court and
remit the case for consideration of the petition under s. 417 ( 3)
filed by Bhimappa.
R.K.P.S.
Appeal allowed.