R.L. Narasimham, C.J.
1. This is a reference by the Sessions Judge of Koraput-Jeypore-recommending the setting aside of an order of acquittal passed by(1) Sri B. C. Mohanty, Stationary Sub-Magistrate of Gunupur in G. R. Case No. 77 of 1956 and (2) Sri P. Jena, Stationary Sub-Magistrate of Nowrangpur in G. R. Case No. 313 of 1956.
2. G. R. Case No. 77 of 1956 in the Court of the Stationary Sub-Magistrate of Gunupur against opposite party Kengua Lachman Murty was initiated on the basis of a charge sheet submitted by the Officer-in-charge of Gunupur P. S. under Sections 279 and 338 of the Indian Penal Code. The allegation was that on the 14-5-1956 the opposite party drove his cycle in a rash and negligent manner and ran over one Trinath Bouri (P. W. 2) and thereby fractured his leg.
The trying Magistrate of Gunupur, on 6-8-1956 allowed the offence under Section 338, Indian Penal Code to be compounded and acquitted the accused of that offence, under Section 345(1) of the Criminal Procedure Code. He dropped the charge under Section 279, Indian Penal Code observing that where grievous hurt is caused by the rash and negligent act of a person he will be guilty only under Section 338 Indian Penal Code, and not under both Sections 338 and 279 Indian Penal Code. In G. R. Case No. 313 of 1956 also, the facts were very similar,
Opposite party Dayadam Bhanja was prosecuted under Sections 279 and 337 of the Indian Penal Code on the allegation that by driving his cycle rashly and negligently on a public road he caused injury to one Brahman. The trying Magistrate of Nawrangpur allowed the parties to compound the offence under Section 337 and acquitted the accused of that offence under Section 345 of the Criminal Procedure Code. He further observed that there can be no separate charge under Section 279, Indian Penal Code inasmuch as that offence merged with the offence under Section 337 Indian Penal Code.
3. The State of Orissa represented by the Public Prosecutor of Koraput, filed two revisions before the Sessions Judge of Koraput-Jeypore, challenging the view taken by the two magistrates of Gunupur and Nowrangpur regarding the non-maintainability of the charge under Section 279 Indian Penal Code when there is another charge for an offence under Section 337 or 338, Indian Penal Code. It was conceded by the learned Public Prosecutor before the learned Sessions Judge that the orders of the two Magistrates amounted to an acquittal of the two accused persons of the charge under Section 279 I. P. C. though there is no express order of acquittal in the judgments of the two magistrates.
4. The learned Sessions Judge, after referring to some decisions on the subject, has recommended the reversal of the order of acquittal and re-trial of the accused persons under Section 279 Indian Penal Code.
5. Mr. Roy on behalf of the opposite parties Raised a preliminary objection to the maintainability of this revision petition. He urged that the two cases were police cases, that the State was entitled to file a regular ' appeal against the orders of acquittal as permitted by Section 417 of the Criminal Procedure Code and that no revision at the instance of the State would lie for reversing those orders of acquittal in view of the express bar imposed by Sub-section (5) of Section 439 of the Criminal Procedure Code. This preliminary point was fully argued by the learned Government Advocate for the State and by Mr. Roy for the opposite parties and I am grateful to them for fairly placing the entire case law on the subject.
6. The question for decision is whether in police cases ending in acquittal by the trying magistrate, if the State omits to file a regular appeal under Section 417 Criminal Procedure Code, it can move the High Court through the Sessions Judge to reverse the order of acquittal in exercise of its revisional jurisdiction. Sub-section (5) of Section 439, Cr. P. C. is very clear on the subject. It says that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
The expression 'Party' occurring in this sub-section would include not only private parties, but also the State if it happens to be the party as in Police Cases. In Shailabala Devi v. Emperor, 34 Cri LJ 1115: (AIR 1933 All 678) (A) which is a Full Bench decision of the Allahabad High Court, Mukherji J. pointed out at p. 1123 (of Cri LJ) : (at p. 686 of AIR) that the Crown would also be a party for the purpose of Sub-section (5) of Section 439, Criminal Procedure Code.
7. The learned Government Advocate, however, made an ingenious attempt to escape the provisions of Sub-section (5) of Section 439, Cr. P. C. by urging that (i) the High Court's interference in the present case would be at the instance of the Sessions Judge who made this reference under Section 438 Cr. P. C, and not at the instance of the State; and (ii) even if the reference made by the Sessions Judge be held incompetent, this Court can suo motu look into the records and reverse the order of acquittal if it is found to be illegal.
8. I am unable to accept this argument. It is true that the Sessions Judge has made this reference to the High Court under Section 438 Cr. P. C. But he was moved by the Public Prosecutor of Kpraput on behalf of the State of Orissa. It was therefore at the instance of the State that the revisional jurisdiction of the Sessions Judge was invoked in the first instance and, through him, of this court.
The language of Sub-section (5) of Section 439 doesnot warrant the inference that the bar of thatSection applies only if the Court is directly approached by the party concerned and not when it is moved through the Sessions Judge or the District Magistrate as the case may be, even though the latter officer was requested to exercise his revisional jurisdiction at the instance of the party concerned. The question ultimately turns on this: who is the person who has set the provision of the Code in motion for the purpose of interfering with the order of acquittal? If that person happens to be one of the parties to the judgment, it is immaterial whether that party moved the High Court direct, or though the Sessions Judge or the District Magistrate as the case may be.
9. The second point of the learned Government Advocate, if accepted, would render the provisions of Sub-section (5) of Section 439 practically nugatory; and in every case in which a revision is filed at the instance of a party in contravention of the provisions of the aforesaid sub-section, it will be open to that the party to say that even though a revision at his instance is incompetent the High Court may in exercise of its powers suo motu interfere in revision inasmuch as the matter has been brought to its notice. To accept this argument would be to go against the very principle on which Sub-section (5) of Section 439 is based.
10. If the case law on the subject be examined, it will be noticed that though the High Court has interfered in exercise of its revisional Jurisdiction, yet such interference has been made only at the intervention of third parties, or where the matter has been brought to its notice through some other source, and not at the instance of the party who could have appealed but did not choose to prefer an appeal.
11. Thus, in an early Patna decision reported in Wazir Kunjra v. Emperor, 30 Cr LJ 673: (AIR 1929 Pat 139) (B) a reference was made by the Sessions Judge under Section 438, Cr. P. C. to the High Court to reverse an order of acquittal on the basis of the materials that were placed before him while hearing a regular criminal appeal. He did not move the High Court at the instance of the party who could have filed an appeal against the order of acquittal. Similarly, in Emperor v. Sukhdeo, AIR 1916 All 316 (C) the Sessions Judge's reference to the High Court to interfere with an order of acquittal was based on facts which came to his notice in a collateral case where the order of the Magistrate rejecting the sureties offered by the accused was under challenge.
Again, in Ganesh Vaman v. Emperor 32 Cri. LJ 471 : (AIR 1931 Bom 140) (D) the High Court exercised its revisional jurisdiction on application made by the Bar Association of Pandarpur though the person who could have appealed against the order of the lower Court, viz., a Pleader of Pandarpur did not care to file an appeal. Then again, In Emperor v. Kamal Dattatreya, AIR 1943 Bom 304 (E) the High Court exercised its revisional jurisdiction on an application made by the father of a girl who was convicted under Rule 56(4) of the Defenceof India Rules, though the girl refused to file an appeal.
In the full Bench Decision of the Allahabad High Court reported in 34 Cri. LJ 1115: (AIR 1933 All 678) (A) the same principle was reiterated and it was observed that though an application in revision would not be entertained at the instance of party who could have appealed, the Court may, on receiving information or knowledge from a third party or suo motu interfere.
12. In a recent Division Bench decision of the Patna High Court reported in State v. Alekh Narain, AIR 1954 Pat 161 (F) the case law on the subject has been fully discussed and Sub-section (5). of Section 439 Cr. P. C. has been held to be a bar, against the High Court's interference in revision at the instance of the party who could have appealed but failed to prefer an appeal. With respect I would entirely agree with the view taken by the Patna Judges.
13. The only decision which may to some extent support the contention of the learned Government Advocate is the decision of a single Judge, reported in Emperor v. Ramdeo AIR 1942 Oudh 443 (G). There the District Magistrate being moved by the Prosecuting Inspector, referred an order of acquittal to the High Court recommending its reversal. The case was undoubtedly a police case and the State had the right of filing an appeal under Section 417 Cr. P. C. The High Court interfered in exercise of its revisional powers under Section 439 (5) Cr. P. C. observing that there was no legal bar. From the report it is not clear as to whether the Prosecuting Inspector moved the District Magistrate in his Judicial capacity or else brought the matter to the notice of the Magistrate in his administrative capacity and then the District Magistrate, in exercise of his powers under Section 438 Cr. P. C. decided to refer the case to the High Court.
In the present case, however, the Sessions Judge was moved by the Public Prosecutor of Koraput, acting on behalf of the State of Orissa, to exercise revisional jurisdiction and recommend to the High Court for setting aside the orders of acquittal passed by the Stationary Sub-Magistrates of Gunupur and Nowrangpur. Hence this case is distinguishable. Moreover with respect I find myself unable to fully endorse the view taken by the learned Judge in AIR 1943 Oudh 443 (G). If such a view to be accepted then Sub-section (5) of Section 439 Cr. P. C. would become, for all purposes, a dead letter.
14. I would therefore uphold the preliminary objection raised by Mr. Roy and held that the reference is incompetent, in view of the bar imposed by Sub-section (5) of Section 439 Cr. P. C. The reference is accordingly discharged.