R.K. Das, J.
1. This is a complainant's petition directed against an order of acquittal passed by the Additional District Magistrate (Judicial), Cuttack, setting aside the order of conviction of the opposite party under Section 323, I.P.C. passed by the Magistrate First Class, Kendrapara.
2. The prosecution case is that the villagers of the complainant purchased a radio from out of the common fund kept in the custody of the accused. When they asked the accused to render account of the money kept at his disposal, he refused to do so and was about to take away the radio. When the complainant prevented him the accused assaulted the complainant. The complainant filed a complaint and the accused was sommoned to stand a trial for an offence under Section 323, I.P.C.
3. The accused denied the charge and pleaded that the case had been falsely instituted at the instance of one Babaji Das against whom the accused had made a station diary entry on the date of occurrence.
4. In support of the prosecution story some witnesses were examined and a medical certificate in support of the existence of some injuries on the person of the complainant was also filed. The learned Magistrate convicted the accused under Section 323, I.P.C. and sentenced him to pay a fine of Rs. 30/-. On appeal the order of conviction and sentence was set aside and the accused was acquitted. It is against this order of acquittal the present revision has been filed.
5. Mr. Ranjit Mohanty, learned counsel for the petitioner, contended that the order of the learned appellate Court is without jurisdiction as due notice of the appeal was not served on the complainant and also on the State Government as required under section 422, Cr. P.C. Section 422 runs thus:
'If the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal, .. .. .'
6. It appears from the record that the notice of the appeal was duly served on the complainant and the accused was present on the date of hearing to proceed with the appeal. The complainant did not appear either in person or through counsel. Mr. Mohanty contended that that was not sufficient and the notice should also have been given to 'such officer as the State Government may appoint in this behalf as prescribed in the aforesaid section. He, however, was unable to show if any such officer has been appointed by the State Government in this behalf and if no such notice was served upon him. This is a private complaint case in which the State is not interested. The complainant after having received the notice himself cannot now take the plea that the learned appellate court could not proceed with the appeal without notice to any officer of the State Government. In any event, the non-service of such notice, does not affect him as it was open to him to appear and oppose the appeal.
7. Mr. Mohanty next contended that on merit, the learned appellate Court was not justified in dismissing (allowing?) the appeal. According to him the appellate court has not correctly appreciated the evidence adduced on behalf of the complainant. The main ground on which the learned appellate Court set aside the order of conviction is that the complainant and his witnesses were admittedly not in good terms with the accused, and there is no independent corroboration of the testimony of P.W. 1. Nothing has been shown to justify the finding of the appellate Court to be erroneous and on that ground alone the petition is liable to be rejected.
8. There is another bar to entertain this revision. Section 439(5), Cr. P.C. provides that 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. After the amendment of the Cr. P.C, in 1955, a right has been given to the complainant under Section 417(3) to present an appeal to the High Court against an order of acquittal after obtaining special leave to present such appeal, on an application made by the complainant in this behalf. Thus the right of appeal no doubt is subject to the obtaining of prior leave of the High Court. But the mere fact that leave has to be obtained, makes no difference so far as the provisions of Section 439(5) are concerned. In the present case there was no bar to the complainant's filing an appeal under Section 417(3) of the Cr. P.C. Code. In fact such an application under Section 417(3) was filed at the first instance, but later on the said application was converted to the present revision at the request of the counsel for the petitioner as would appear from Order No. 4 dated 25-9-1964 and thus the petition was treated as one under Section 439, Cr. P. C.
9. As stated before, prior to the amendment of 1955, the complainant could, under no circumstances, prefer an appeal against an order of acquittal. It is only after the 1955 amendment, such a right has been given to the complainant with effect from 1-1-1956 to appeal against an order of acquittal passed in a case instituted upon a private complaint provided that the High Court upon due application, grants special leave to appeal. The only question that arises for consideration is whether a revision petition can be entertained at the instance of the complainant who has not filed an appeal provided under Section 417 (3) against an order of acquittal. To my mind Section 439(5) is a complete bar to entertain such a revision. A number of decisions of the different High Courts in India also support this view.
10. In AIR 1959 All. 413, City Board, Mussoorie v. Srikishan Lal, Desai J. held that in view of the provisions of Section 439 (5) a proceeding by way of revision against an order of acquittal passed in a case instituted upon a complaint cannot be entertained at the instance of the complainant who has not filed an appeal from the order as permitted under Section 417 (3).
11. In a case reported in AIR 1959 Bom 94, State of Bombay v. N.G. Tayawde, it was contended that the appeal contemplated under Section 417(3), Cr. P. C. refers only to such kinds of appeals which a party can prefer as of right and not such appeals for which special leave has to be obtained from the Court. It was held that the view that Section 417, Cr. P. C. grants a discretionary right to a private complainant and that under Sub-section (3) of that Section what lies is not an appeal, but an application for grant of special leave to appeal, and in this view, it cannot be said that an appeal lies against an order of acquittal in terms of Section 439 in the case of a private complaint cannot be accepted. It was held that such provision of obtaining prior leave before presenting an appeal by itself connotes that a party has a right of appeal and the obtaining of permission is only one of procedural step in the pursuit of that right in presenting the appeal. Hence where the complainant has not taken requisite steps for filing an appeal, the revision proceedings at his instance are incompetent.
12. A Division Bench of the Punjab High Court in the case reported in AIR 1958 Punj. 228, Shiv Prasad v. Bhagwan Das, also held the same view. Their Lordships held that in view of the provisions of Section 417(3) enabling the complainant to file an appeal against an order of acquittal in a case instituted at the instance of a private complaint, Section 439(5) is a bar to the complainant's having recourse to revision petition. Nor can the petition be treated as an appeal if it was filed after the period of limitation prescribed under Section 417(4). No doubt in most glaring cases of injustice the High Court has always the inhere/it power to interfere in revision even at the instance of the private parties against an order of acquittal and in cases where the private party has no right to appeal, he can file revision under section 439, in cases where the Government fails to exercise its right in preferring an appeal against an order of acquittal.
13. In view of this legal position this revision must be held to be incompetent and is accordingly dismissed.