1. This is a revision petition preferred by the Chairman of the Village Panchayat of Nagathihalli in Nagamangala Taluk against the judgment of the learned First Class Magistrate, Mandya, in Criminal Appeal No. 7 of 1955, setting aside the conviction of the respondent-accused under Section 168 (1) (a), Mysore Village Panchayats and District Boards Act and the sentence of fine passed on him by the Amildar-Magistrate, Nagamangala, in C. C. No. 4 of 1955-56.
2. The case for the petitioner-complainant was that the respondent-accused had built a shed in site No. 51 without obtaining a licence from the Village Panchayat and that he was thereby liable to be prosecuted under Section 169, Mysore Village Panchayats and District Boards Act.
The accused pleaded not guilty but the learned Magistrate ultimately convicted the respondent-accused for an offence under Section 168 (1)(a) of the Act and sentenced him as stated above. As against this decision, the respondent appealed and the learned First Class Magistrate, Mandya, set aside the conviction and the sentence passed on the respondent. As against that decision, this revision petition is filed.
3. I think that this revision petition can be disposed of on a point of law. The point that arises for consideration is whether a revision petition under Section 439, Criminal P.C. is competent against an order of acquittal. It seems to me that this revision petition is not maintainable. Under Section 417 (3) of the amended Criminal P.C. an appeal against an order of acquittal is provided. Section 417 (3) runs as follows:
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.
Prom a reading of this section, it is clear that a complainant in a private case can prefer an appeal against an order of acquittal provided the High Court grants special leave to appeal. In this connection it is necessary to refer to Section 439 (5), Criminal P.C. which runs thus:
Where under the 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.
This provision bars a private party from having recourse to a revision petition when an appeal against an order is provided and when no appeal is preferred.
4. It was argued by the learned Counsel for the petitioner that the word 'may' appearing in Sub-section (3) of Section 417 after the word 'complainant' gives him an option either to file an appeal or a revision petition. This is not a correct interpretation of the word 'may'. We have to understand the said word 'may' as giving an option to the party either to tile an appeal or not, and not a discretion to the party either to file an appeal or a revision petition.
In view of the provisions of Sub-section (5) of Section 439 which bar a private party from filing a revision petition against an order of acquittal when an appeal is provided for and when no appeal is preferred, there is no substance in the contention that a party could file either an appeal or a revision petition.
5. It was next contended by the learned Counsel for the petitioner that Section 417 (3) applies only to original orders of acquittal and not to orders of acquittal passed by an appellate Court. I see no merit in this contention. Section 417 (1) runs thus:
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.
In Sub-sections (2) and (3) of Section 417 the word 'such' is used with reference to an order of acquittal. The words 'such an order of acquittal' appearing in Sub-section (3) can only refer to the order of acquittal mentioned in Sub-section (1) of Section 417. The order of acquittal referred to in Sub-section (1) of Section 417 is an order of acquittal of the original or the appellate Court. Therefore there is no force in the argument advanced by the learned Counsel that Section 417 (3) is applicable only to a case in which the order of acquittal is that of an original Court. Under these circumstances, it has to be held that this revision petition is not maintainable.
6. In the result, this petition stands dismissed.