1. The appellant was examined as P.W. 29 before the Trial Court and aggrieved by the acquittal of accused in S.C. No. 249 of 2003, this appeal is by him under Section 378(4) of the Cr. P.C.
2. The office has raised the objection to the effect that the appellant has to satisfy as to how the appeal is maintainable in view Section 378(4) of the Cr. P.C.
3. Section 378(4) of the Cr. P.C. reads as follows.-
(1) ...
(2) ...
(3) ...
(4) 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. A plain reading of the above section makes it clear that the only person, who is entitled to prefer an appeal against an order of acquittal under the said section, is the complainant in any case 'instituted upon complaint'. Although the Code does not contain any definition of the words 'institution of a case', it is however clear that a case can be said to have been instituted in a Court only when a Magistrate takes cognizance of an offence in any of three ways provided in Section 190(1) of the Cr. P.C. The Apex Court in the case of Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda and Ors. : 1970CriLJ1132 , has observed that the expression 'any case instituted upon complaint' means only that class of cases where not merely a complainant comes to Court with a petition of complaint but the Magistrate takes cognizance of the offence or offences alleged on the basis of that complaint.
5. In view of the above position in law, there is no scope for any person other than the complainant to prefer an appeal against an order of acquittal and even in such a case only after grant of special leave to appeal from the order of acquittal, the complainant can present such an appeal to the High Court.
6. In the instant case, the appellant is neither the State nor the complainant and, therefore, the question of any other person preferring an appeal against the order of acquittal before this Court under Section 378(4) of the Cr. P.C. will not arise much-less the witness examined during the trial. As such, the objection raised by the office is perfectly maintainable and consequently the appeal is not maintainable and, accordingly, we dismiss the appeal.