M.C. Desai, J.
1. The Applicant City Board of Mussorrie prosecuted the opposite party Kishan Lal for the offence of Section 16 of the Prevention of Food Adulteration Act for selling adulterated bee honey. It has been found as a matter of fact that on 26-9-1956 the opposite party, who is a dealer in bee honey sold three sealed bottles each bearing the label 'Pure Bee Honey' to a Food Inspector, and on analysis the honey in each bottle was found to be adulterated. The opposite-party pleading not guilty contended that he had purchased the bottles from the Himachal Drugs Coy. and sold them in the same condition.
He produced a voucher given to him by the Himachal Drugs Coy, in which the article has been described as bee honey. The trial Court held that the label 'Pure Bee Honey' put on each bottle by the vendors amounted to a warranty and that the opposite-party having sold the bottles in the same condition in which he had purchased them from the vendors was not guilty and acquitted him. The applicant applied for revision of the judgment of acquittal to the Sessions Judge, Dehra Dun, who has referred the case to this Court with the recommendation that the acquittal be set aside and the opposite-party be ordered to be retried.
2. The learned Sessions Judge is right in observing that the acquittal of the opposite party was wrong, that the trial Court had not followed the procedure correctly and that though the vendors might have represented to the opposite party that the bottles contained pure bee honey it did not amount to their giving the opposite party a warranty that it was and that consequently the opposite party was not entitled to be acquitted. There is a distinction between a representation and a warranty. The trial Court did not consider the law on the subject and hazarded the opinion, that the vendors gave a warranty to the opposite party that the bottles contained pure bee honey, without reference to any law, either statutory or judge-made.
3. Though the acquittal was unjustified, I find that it cannot be interfered with by me in revision because of the bar imposed by Section 439 (5). Cr. P. Code, which reads as follows :
'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.'
Prior to 1956 no appeal by the complainant lay at all in any circumstance from an order of acquittal; with effect from 1-1-1956 the law has been amended and Section 417 (3) has been enacted giving a right of appeal to a complainant against an order of acquittal passed in a case instituted on his complaint provided that the High Court on an application before it grants special leave to appeal. The question that arises is whether proceeding by way of revision of an order of acquittal passed in a case instituted upon a complaint can be entertained at the instance of the complainant who has not filed an appeal from the order as permitted under Section 417 (3). I have no hesitation in answering the question in the negative.
4. It was contended on behalf of the applicant that the right of appeal conferred by Section 417 (3) is not absolute but conditional upon the complainant's succeeding in obtaining special leave to appeal from the High Court and that what is meant by 'where under this Code an appeal lies' is 'where under this Code an appeal lies as a matter of absolute right or unconditionally.' No words can be added to Sub-section (5) to Section 439, and it cannot be read as if it contained 'where under this Code an appeal lies unconditionally' or 'where under this Code an appeal lies as a matter of absolute right'.
What is meant is that where an appeal can be filed under this Code, even if it can be filed subject to fulfilment of a condition, it is a case covered by the sub-section. An appeal that can be filed only on the fulfilment of a condition, is as much an appeal that lies under the Code as an appeal that can be filed as a matter of absolute right. Actually there is no appeal that can be filed as a matter of absolute right; every appeal is governed by the law of limitation under which it must be filed within a certain time.
Also there are rules governing the presentation of an appeal and laying down that the memorandum of appeal must bear a certain account of Court-fee. Merely because a person wishing to file an appeal has to fulfil certain conditions it cannot be said that no appeal lies. If an appeal can be said to lie notwithstanding the law that it must be filed within a certain time or in a certain manner, an appeal can be said to lie under Section 417 (3) notwithstanding the fact that it can be filed only after obtaining special leave to appeal from the High Court.
5. So long as a complainant has not applied to the High Court for special leave and his application has not been rejected by the High Court it cannot at all be said that no appeal lies at his instance. If his application for special leave has been rejected by the High Court on merits, then and then only can it be said, if at all, that no appeal lies from the acquittal at his instance. In the present case the applicant did not apply to the High Court for special leave to appeal from the order of acquittal at all.
There is a period of limitation for applying to the High Court for special leave and that period of limitation has now expired, but the applicant himself cannot take advantage of his own default or laches and plead that owing to the expiry of the period of limitation he has no right of appeal. When a party has a right subject to the fulfilment by him of a condition it cannot, by refusing to fulfill it, plead that it has no right. A party cannot excuse itself from not complying with a condition simply by inactivity. Whether an appeal lies or not does not depend on the volition of the party having the right of appeal.
What is required to be seen is whether an appeal can be filed against the order, even if in certain circumstances, and not whether it has been actually filed. If at one stage the answer can be given that an appeal lies, it can never become a case of no appeal lying; in other words even after the fulfilment of the condition has become impossible owing to efflux of time or any other reason, it cannot be said that no appeal lies. I, therefore, hold that the present case is within the bar imposed by Sub-section (5).
6. 'Proceedings by way of revision' are barred under Sub-section (5), but the question arises, what are 'proceedings by way of revision?' No proceeding is described as 'proceeding by Way of revision' in the Code. Chapter XXXII, containing Sections 432 and 442, bears the heading 'Of Reference and Revision'. Section 435 confers power upon the High Court or the Sessions Judge or the District Magistrate to call for and examine records of proceedings before inferior Criminal Courts. It contemplates exercise of the power either on an application or suo motu; Sub-section (4) expressly refers to an application made for the exercise of the power.
Section 436 empowers the Court examining the record to direct further inquiry into a complaint dismissed or into the case of a discharged accused while Section 437 empowers the Sessions Judge or the District Magistrate to order commitment of a discharged accused. The powers conferred under these two sections are described as 'power to order inquiry' and 'power to order commitment'. Section 438 deals with a report to be made by the Sessions Judge or the District Magistrate examining the record. Section 439 bears the heading 'High Court's powers of revision' and lays down that the High Court may exercise any of the powers conferred on a Court of appeal.
In the case of any proceeding the record of which has been called for by itself under Section 435 or which has been reported for orders by the Sessions Judge or the District Magistrate under Section 438 or which otherwise comes to its knowledge, the powers that the High Court can exercise under Section 439 are described as 'powers of revision' because they are the general powers and do not deal with specific orders to be passed. The powers conferred upon the Sessions Judge and the District Magistrate by Sections 436 and 437 are not described as 'powers of revision' because they are not their general powers but are powers to pass only certain orders.
There is hardly any doubt that the Sessions Judge or the District Magistrate, when passing orders contemplated by Sections 436 and 437 or making a report under Section 438, exercises revisional jurisdiction. Since Sections 436 and 437 are contained in the Chapter of 'Reference and Revision' and since the powers conferred by these sections are strictly not powers of reference they must be powers of revision. The powers of reference ace only those conferred by Section 432; the power of making a report conferred by Section 438 is not a power of reference but is a power of revision. A report may be called a reference but making a report is really not exercising power of reference within the meaning of Chapter XXXII.
Therefore, when the Sessions Judge or the District Magistrate calls fox and examines a record and passes an order either under Section 436 or under Section 437 or makes a report under Section 438, he acts in exercise of revisional jurisdiction and the proceedings held by him are by way of revision. The bar imposed by Sub-section (5) to Section 439 will, therefore, apply in those proceedings and they cannot be entertained at the instance of a party who could have appealed but has not. The learned Sessions Judge in this case entertained the revision application of the applicant, though it could have appealed but had not appealed; he was debarred from doing so.
If he could not entertain any application by way of revision, he could not possibly make any report to this Court, and the report that he has made is without jurisdiction and cannot be acted upon. Not only can it not be acted upon but also it should not be taken notice of and should not be treated even as information to this Court. In Shailabala Devi v. Emperor : AIR1933All678 , it was held by a Full Bench of this Court that only a party to the proceedings in the inferior Criminal Court can make an application under Section 435, that a stranger to the proceedings cannot make any application under Section 435, that an application made by a stranger may, however, be treated as information, and the High Court or the Sessions Judge or the District Magistrate may act upon it and that though no revision application has been filed by the aggrieved party, who could have appealed but has not, (on account of the bar imposed by Sub-section (5)), the High Court can act on the information received and revise the order.
In the case dealt with by the Full Bench an application in revision was filed not by the accused who could have appealed but did not, but by his mother, who, though the mother, was in the eye of law a stranger to the proceeding. An application for revision made by a stranger to the proceeding may be treated as information, but I am not prepared to hold that an application for revision made by an accused may be treated as information, when it is found that for certain reason, such as the bar imposed by Sub-section (5) to Section 439, no application for revision can be entertained.
It would be circumventing the provisions of Sub-section (5) if one were to treat the application as information and act on it; it would have been useless for the Legislature to lay down that no order of an inferior criminal court should be revised all the instance of a party that could have appealed but did not, if the Court were to act suo motu. The exercise of revisional jurisdiction is in any case discretionary. It is discretionary in the sense that after entertaining an application for revision and finding that the impugned order is illegal or improper the court is not bound to interfere with it,
A court of revision may be bound to entertain an application for revision and to consider it on its merits but is not bound to grant the relief asked for merely because the impugned order is found to be illegal or improper. This is the distinction between a revision and an appeal. When the exercise of re-visional jurisdiction is discretionary even when a revision application is validly made by the aggrieved party, it would be futile to say that the court has discretion to treat a revision application that does not lie as information and act suo motu.
There is no point in the High Court's exercising its discretion in this matter if it has again to exercise its discretion when passing the final order. Duplication of exercise of discretion is meaningless, I have no doubt that the Legislature did not intend that when the aggrieved party fails to appeal against an order, it should be revised by the High Court suo motu. It is no use saying that the High Court is not bound to act suo motu and may refuse to do so, because even when it entertains a valid application it is not bound to grant the relief asked for, and may in its discretion refuse it,
Even if it he true that a revision application, which does not lie because of the bar imposed by Sub-section (5), filed by the aggrieved party can be treated as information, I consider that this course should be reserved for extraordinary cases and ordinarily the High Court should refuse to treat it as information. If it were to treat every such application as information, the bar imposed by Sub-section (5) would be rendered wholly nugatory. In every application for revision by the aggrieved party, who could have appealed but did not, he could pray that his application may be treated as simply giving information to the High Court and that it may act on it. An Application for revision by a stranger may be treated as simply giving information to the court as had been done in the case of Shailabala Devi : AIR1933All678 but not an application by a party to the proceedings like the one in the present case. There is nothing extraordinary in the present case on account of which I should get round the bar imposed by Sub-section (5) and act suo motu.
7. The reference is rejected.