P.K. Goswami, J.
1. This application under Section 439 of the Code of Criminal Procedure is directed against the judgment of acquittal passed by the learned Magistrate, First Class (Judicial), Karimganj, in a case instituted on a complaint.
2. The prosecution case was that on 11th November, 1962, accused persons cut away paddy from the land in possession of the complainant and on his protest, they assaulted him and his sons, when they later intervened. 19 accused persons were charged under Section 147 of the Indian Penal Code and two of them were separately charged under Section 324, Indian Penal Code.
3. The learned Magistrate at the end of the trial held that the complainant could not prove by any reliable evidence that he was in exclusive possession of the disputed land. On the other hand, he found that the defence established that the land was in possession of accused Lalu and Sonua and that they had been enjoying it peacefully until the date of occurrence. He further held that the accused had a right to protect their property in exercise of their right of self defence. In this view of the matter, after appreciation of the evidence, the learned Magistrate acquitted all the accused persons.
4. The complainant obtained this Rule on 6th of May, 1966. A preliminary objection has been raised by Mr. Bhattacharjee, the learned Counsel for the opposite parties, regarding maintainability of this revision application at the instance of the complainant. He submits that Section 439 (5) of the Code of Criminal Procedure is a bar to this application since the complainant in this case instituted on a complaint had a right of appeal under Section 417 (3) of the Code of Criminal Procedure. We may read Section 439 (5) of the Code of Criminal Procedure:
439 (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.' We may also read Section 417 (3) of the Code of Criminal Procedure:
'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.
It is contended on behalf of the opposite parties that the case was instituted on a complaint, and, as such, an appeal lay to the High Court against the judgment of acquittal under Section 417 (3) of the Code of Criminal Procedure and hence Section 439 (5) of the Criminal Procedure Code is attracted, and the revision application does not lie. It is submitted by Mr. Mazumdar on behalf of the petitioner that Section 417 (3) gives the complainant a very restricted right of appeal, if any. The complainant cannot straightway submit an appeal to the High Court. He has to obtain special leave from the High Court before he can present an appeal. That being the position, the learned Counsel contends that no appeal lay to the High Court as such within the meaning of Section 439 (5) of the Code of Criminal Procedure.
5. In order to appreciate the rival contentions, it is necessary also to read Sections 417 (1) and 417 (5) of the Code of Criminal Procedure in this context:
417 (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.'
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(5) If, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1).
Reading Sections 417 (1) and 417 (5) together, it is clear that the scheme under Section 417 envisages two equal rights of appeal, one to the State Government or the Central Government under Section 417 (2), as the case may be, and the other to a private complainant. These two rights are at par and although a screening is envisaged under Section 417 (1) to do away with the frivolous appeals against acquittals, the right of appeal as such has not been affected. The right to obtain special leave which is a step in the process of the appeal is intimately integrated with the right of appeal itself and one cannot be divorced from the other. It is clearly provided under Section 417 (5) that once a special leave for appeal is refused, the Government's right of appeal is barred under this section. It, therefore, cannot be argued that the right of appeal under Section 417 (1) is no right at all and it is absolutely clear that an appeal against a judgment of acquittal in a complaint case does lie to the High Court alone under this section and the provisions of Section 439 (5) will be attracted in case the complainant does not choose to take recourse to this remedy and proceed to move the High Court in revision. The view we have taken in this case receives support in some decisions of the several High Courts, namely AIR 195b Mys 62 Nagathihalli v. N. Thimmasetty Gowda , Shiv Prashad v. Bhagwan Das : AIR1959Bom94 , State of Bombay v. N.G. Tayawada : AIR1959All413 , City Board Mus-Borie v. Sri Kishan Lal : AIR1960All296 , Ram Narain v. Mool Chand and : AIR1966Ori45 , Dukhishyam Sahu v. Bidyadhar Sahu. After we had closed the hearing of the case Mr. Bhattacharjee drew our attention to an unreported Special Bench decision of this Court in Criminal Reference No. 54 of 1959 D/- 17-5-1960 (Assam), Kartic Teli v. Bachahon Mahto, wherein the same view was taken of the provisions of Sections 417 (3) and 439 (5) of the Code of Criminal Procedure. The Court held as follows:
In this case the order of acquittal would have been challenged by way of appeal by the complainant under the provisions of Section 417 (3), and, therefore, under the provisions of Section 439 (5), no revision can be entertained.
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If there is a right of appeal and that right is not availed of, then the party aggrieved cannot come to this Court by way of revision and this matter is now well settled.
6. The fact that a revision application does not lie at the instance of the complainant would not, however, affect the High Court's powers under Section 439 of the Code of Criminal Procedure to pass suitable orders in an appropriate case when its attention is otherwise drawn to grave injustice or when it suo motu calls for certain records of the subordinate courts. This is, however, not a case where we may be induced to take action in exercise of those powers.
7. The application is dismissed and the Rule is discharged.
M.C. Pathak, J.
8. I agree.