Akbar S. Sarela, J.
1. This is a revision application by the original complainant against certain orders passed by the City Magistrate, 7th Court, Ahmedabad (Mr. N.M. Chhaya) on 24-6-1968 in respect of a complaint under Section 323 I.P.C. filed before him against respondent No. 1. Respondent No. 2 is the State of Gujarat.
2. The facts in brief are these. The applicant Fatumal Dayaram, who will be referred to hereafter as the complainant for the sake of convenience, has two children who are attending the school of which respondent No. 1 (hereinafter referred to as the respondent for the sake of brevity) is the principal. It appears that 14th of February 1968 was the birth date of the respondent and the allegation of the complainant was that for the purpose of celebrating that birth date the class teachers asked their students to bring each not less than Rs. 21- as contribution. The complainant alleged that he sent Rs. 21- with each of his two children but this was not accepted and the class teacher insisted on a payment of Rs. 51- from each of the students. The children reported this to the complainant and on the next day he accompanied the children to the school, saw the respondent and protested against such demands and left. His allegation was that thereafter his children complained to him that the class teachers had taken them before the respondent and both of them had been beaten by the respondent. He went on to say that on learning this he again went to the respondent and protested against this conduct of hers but was told that he may remove his children from that school. On these allegations he alleged that an offence under Section 323 I.P.C. had been committed by the respondent.
3. The complaint was filed on 6-2-1968. It therefore appears that the alleged demand for money took place before the date of the filing of the complaint much before the birth-date of the respondent. The complainant does not indicate the date of the demand, the date of the protest or the date on which the alleged beating was given to his children. The learned Magistrate on receipt of this complaint issued process (bailable warrant). The respondent appeared on the date fixed and the matter was adjourned from time to time and then it was fixed for evidence on the 24th of June 1968. On the date when the matter was called out the complainant and his advocate were not present but the respondent and her advocate were present. The learned Magistrate passed an order below the complaint recording that the complainant was not present and further that the complaint be dismissed. It appears that the complainant appeared before the Court within a short time thereafter and moved the Court by an application which is Annexure 'A' to this petition in which he stated that he had gone to call his advocate and that in his absence the case came to be called out and that was why he was not present and requested the court that the case be taken on the file. On that application the learned Magistrate stated that he having dismissed the complaint and acquitted the accused, could not set aside the order of acquittal. Accordingly, the application was rejected. This revision application relates to those orders passed by the learned Magistrate.
4. The contents of the revision application were such that the application could be treated as one against the order of acquittal or one against the order rejecting the application for restoration of the complaint or against both and therefore I asked Mr. B.C. Patel, who appears for the complainant, at the very outset against which order he had filed this application and he stated that he had filed the application against both the orders. That statement appears to be consistent with the grounds set out in the memo of the revision application and the arguments advanced proceeded on that basis. When the arguments of both the sides were over, Mr. Patel stated that this application was only against the order made by the learned Magistrate refusing restoration of the complaint. I am therefore required to consider only that part of the case; but as the matter has been argued at length on other points also, out of deference to the arguments advanced by the learned advocates, I shall briefly deal with those points also.
5. There is no doubt that the revision application by the complainant against the order of acquittal would not lie. The complainant has a right of appeal against the order of acquittal under Section 417(3) of the Criminal Procedure Code (Hereinafter referred to as the Code) and so long as an appeal lies at his instance it would not be permissible for him to move in revision for setting aside that order. This is clear from the provisions of Section 439(5) of the Code. This is the view taken not only by other High Courts but also by this High Court in the decisions to which Mr. Sompura, the learned advocate for the respondent, has invited my attention. Of these decisions it is enough to refer to Shiv Prasad v. Bhagwan Das , State of Bombay v. N.G. Tayawade : AIR1959Bom94 , City Board v. Shri Kishan : AIR1959All413 and the judgment of this Court in criminal revision application No. 37 of 1967 delivered by Brother Shelat J. on 19th February 1968 wherein he has taken the same view as has been taken by the Bombay decision just referred to. As the point has not been pursued by Mr. Patel who has confined this revision application only to the order passed by the learned Magistrate on the application Annexure 'A' it is not necessary to discuss it any further or to consider the further submission made by Mr. Sompura that the present revision application cannot be converted into an applica tion for leave to appeal under Section 417(3) of the Code because, as he submitted, it was beyond the period of limitation provided under Section 417(4).
6. The only point for determination, therefore, is whether against the order of the learned Magistrate refusing restoration of the complaint on the ground that he had no power to do so a revision application lies to this Court and if so whether this Court should exercise its revisional powers to set aside or correct that order. Mr. Sompura submits that such a revision application cannot be entertained and he relies mainly on the language of Sub-section (5) of Section 439 of the Code read in the context of Section 417(3). His alternative submission is that even if it could be enter tained the revisional powers of the High Court must be exercised only in exceptional cases and this is not an exceptional case. These are the only two aspects of the matter which call for consideration.
7. Before considering relevant provisions on the subject it would be appropriate to consider whether the learned Magistrate had in fact no power to restore the complaint which he had dismissed. It may be noticed that the order which he has passed was an order of acquittal under Section 247 of the Code. Section 369 of the Code provides, so far as material, that no Court when it has signed the judgment shall alter or review the same, except to correct a clerical error and Mr. Sompura's submission is that this section prohibits the Court from altering any order already made. Mr. Patel's reply is that the order made is not a judgment and therefore Section 369 is not attracted. In support of that submission my attention was invited to the decision in Re Wasudeo Narayan (51 Cri. L.J. 212) where it was held that in cases falling under Section 259 of the Code, an order of discharge is not a decision given on merits and is not a judgment and consequently the Magistrate is not debarred from reviewing it, setting it aside and reviving the old complaint. This case has obviously no applica tion because it relates to a warrant case which had resulted in an order of discharge which did not amount to an acquittal. We are here concerned with an order of acquitial which the Magistrate had jurisdiction to pass and what we are to consider here is not the powers of the Magistrate to alter or review the judgment but to set aside such an order of acquittal and hold a fresh trial of the person acquitted. Having regard to the principle underlying Section 403 of the Code, unless the Code confers a specific power on the Magistrate to set aside an acquittal and try the accused afresh, such a power cannot be said to be available. This point appears to have arisen in number of cases and Mr. Sompura has invited my attention to a few of them. In Nityanand Koar v. Rakhahari Misra : AIR1924Cal96 the facts were that the petitioner before the High Court was prosecuted for offences under Sections 426 and 447 Indian Penal Code and on the date of hearing when his case was called out, the comp lainant was absent and therefore the Magistrate passed an order under Section 247 acquitting the petitioner. On the same day after the order of acquittal had been passed the complainant made an application for revival of the proceedings and the Magistrate revived the proceedings which had come to an end by the previous order. Thereafter the petitioner was tried, convicted and sentenced. Their Lordships said that the order under Section 247 was one which could only have been set aside by the High Court if an application had been made for setting it aside and the Magistrate had no jurisdiction to set aside the order of acquittal passed under Section 247 and revive the proceedings against the accused. It was further said that the order of acquittal was in existence on the date on which the accused was convicted and therefore the order operated as a bar on all subsequent dates to a fresh trial of the accused under the sections mentioned therein! The same view has been taken by a Division Bench of the Calcutta High Court again in National I and S. Co. v. Electric Inspector Bengal A.I.R. 1943 Cal. 23. There the petitioners before the High Court were prosecuted for offences under the Electricity Rules, 1937 at the instances of the Electric Inspector of Bengal who was the complainant. After one prosecution witness was examined in part and the case was adjourned for further hearing nobody on behalf of the prosecution was present on the date of the hearing and therefore the learned Magistrate made an order acquitting the accused under Section 247 of the Code. On the same day before the Court rose an application was filed by the complaint for revival of the case. The learned Magistrate who heard that application came to the conclusion that he had no power to set aside the order of acquittal and directed that the application be filed. Then a second application was made before the successor Magistrate and he held that the order of acquittal passed was nullity and was without jurisdiction and therefore revived the complaint and fresh process was issued. Against that order the accused went in revision. Their Lordships held that there was no jurisdiction in the Magistrate to set aside the order of acquittal or to treat it as a nullity and the only remedy available was either for the State to file an appeal against the acquittal or for the complainant to move the High Court in revision. Only one more case need be referred to. In Subbarao v. Seshayya A.I.R. 1943 Madras 6 the accused was charged under Section 447 Indian Penal Code. On the date fixed for hearing the complainant was absent and the Magistrate acquittal the accused under Section 247. The Complainant had sent a telegram asking the Magistrate to adjourn the case which reached the Magistrate five minutes after the order of acquittal was pronounced. The successor Magistrate thereupon permitted the complainant to file a fresh complaint and took cognizance of the case on the new complaint. It was held that the Magistrate by allowing the case to be revised after his predecessor had acquitted the accused and closed the case, was in effect revising or reviewing his predecessor's order and that the subordinate Court have no power of reviewing their own judgments. The ratio of these decisions is that an order of acquittal made under Section 247 of the Code cannot be revised or reviewed by the Court of the Magistrate who had passed it. The only remedy against such an order is to approach the High Court for which provisions for appeal not only by the State but also by the private party are made in Section 417 of the Code.
8. With this background of the legal position as to the Magistrate's power to restore as complaint which had come to an end by an order of acquittal under Section 247 of the Code, we may turn to a consideration of the provisions of the Code on which reliance has been placed for invoking the revisional powers of this Court for setting aside the order of the Magistrate. Prima facie the order of the Magistrate, Annexure 'A', and that is the only order in respect of which grievance has now been made is correct order because he had no jurisdiction to restore the complaint which had come to an end by an earlier order of acquittal an order which he had jurisdiction to make. It is therefore, difficult to see how this Court can exercise its powers of revision, if it has any, to set aside the order which was correctly made. It is necessary again to emphasise that on the submission made on behalf of the petitioner we are not now concerned with the order of dismissal of the complainant and the order of acquittal. We are here concerned with the refusal of the Magistrate to restore the complaint. But Mr. Sompura goes further and argues that apart from the propriety of the High Court exercising the revisional powers against the order correctly made by the Magistrate, the legal position is that such a revision application cannot be entertained and it is in support of that submission that he relies on Section 439(5) of the Code. Before turning to the provisions of that section it would be convenient to refer to some of the earlier sections which refer to the revisional powers of the High Court. Under Sub-section (1) of Section 435 the High Court may call for and examine the record of any proceeding before any inferior Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court. Sections 436, 427 and 439 relate to the powers which the High Court may exercise on examination of the record. Section 436 relates to a case where a complaint has been dismissed under Section 203 or Sub-section (3) of Section 204 of the Code or where any person accused of an offence has been discharged, and Section 437 relates to commitment of an accused. The two sections are not attracted in this case. Then comes Section 439 which is relevant. Sub-section (1) of that section provides, so far as material, that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426 427 and 428 and may enhance the sentence. In the present case what is sought is an order of the nature provided for in Clauses (c) and (d) of Sub-section (1) of Section 423, that is to say, an order reversing the order made by the Magistrate at Annexure 'A' and a consequential positive order restoring the complaint. Sub-sections (2) and (3) of Section 439 are immaterial. Section 439(4) which has been referred to in some of the cases on which reliance has been placed by the learned Assistant Government Pleader who has supported the petition, may be set out. It reads:
Nothing in this section applies to an entry made under Section 273 or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Sub-section (5) which is material reads as under:
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.
9. Now, when considering the applicability of this sub-section and the propriety of the exercise of revisional powers, what we have to consider is what in substance the petitioner asks for. The petitioner does not merely want to get set aside the order of the Magistrate at Annexure 'A, because that by itself would not help him. The order of acquittal would still remain. What he wants in substance is that having held that the order of the Magistrate at Annexure 'A' is wrong, it would be directed to proceed with the case. That is what is stated in so many words in the concluding para of the petition where it is stated that this Court be pleased to set aside the order whereby the learned Magistrate had dismissed the complaint of the petitioner and to direct the learned Magistrate to proceed with the case according to law. Therefore, in substance, the revision application though now confined to the order made at Annexture A, is intended to obtain from this Court an order setting aside the acquittal and to direct the Magistrate to proceed with the trial. Now, there is no doubt on the authorities earlier discussed that the petitioner has a right of appeal against that order of acquittal and that he has not thought fit to file an appeal. If that is so then on the plain language of Sub-section (5) of Section 439 no proceedings by way of a revision shall be entertained at his instance but Mr. Patel argues, and he is supported by the learned Assistant Government Pleader in this submission, that although it is not permissible for the High Court to set aside the acquittal in this case at the instance of the petitioner the High Court has wide powers of revision when acting suo motu and then the High Court can take notice of the facts placed before it and on its own correct the error which the Magistrate has committed. It may be assumed for the present that the Magistrate has committed an error in dismissing the complaint and acquitting the accused. The question then would be whether the High Court on the facts of this case can exercise its revisional powers suo motu. Mr. Sompura's submission is, that such action on the part of the High Court would amount to contravention of the provisions of Sections 439(5) and 417(3), would condone the party's default in the filing an acquittal appeal and would amount to permitting a party to bypass the provisions of Section 417(3). His alternative submission is, as earlier stated, that even if the High Court could entertain this revision application, the authorities indicate that the High Court must be very cautious in exercising those powers. Those powers should be exercised sparingly or in exceptional circumstances as the authorities indicate.
10. The availability of the revisional powers independently of any application already made to the High Court by a party entitled to appeal is, in my opinion, clear from the language of Sub-sections (1) and (5) of Section 439. The revisional powers of the High Court under Sub-section (1) are very wide. They cover a wide range. These powers can be exercised when the record of the case has been called for by itself or has been reported for order 'or which otherwise comes to its' knowledge.' The expression 'which otherwise comes to its knowledge' shows that the information on the strength of which the High Court derives knowledge can come from any source. Having regard to the wide language used and the amplitude of the powers, the prohibition enacted in Sub-section (5) must be strictly confined to what it says. The prohibition is against the entertainment of a revision application at the instance of a private party. It is not possible to construe this as prohibiting the High Court from acting on its own whenever a private party has moved it. Such a construction would prevent a private party from bringing to the notice of the High Court cases of miscarriage of justice. It may very well happen that the party which has failed to appeal files a revision application and the High Court also becomes aware of the facts independently of that application. Could it then be said that the High Court is prevented from exercising its powers because the exercise of those powers has been invoked also by the party who could have appealed? It is true that in the present case the source from which the High Court derived its knowledge is not independent of the application made by the private party but that does not make any difference in principle, for if that was the intention of the Legislature it could be easily got over by a private party persuading a third party interested in him to apply to the High Court. On a reasonable construction of the section as a whole the powers of the High Court to act independently of an application already made by a party entitled to appeal are not affected by Sub-section (5) of Section 439.
11. It would now be appropriate to refer to some of the authorities to which my attention has been invited. In Ganesh Vaman Joshi v. Emperor 32 Cri. L.J. 471 which is a decision of the Bombay High Court, the facts were that a pleader of Pandharpur had been convicted of an offence under Section 47 of the Bombay Salt Act, 1890, read with Section 117 I.P.C. An application for revision was made to the High Court by another pleader on behalf of the Bar Association of Pandharpur. The accused did not think fit to file an appeal. Now under Section 439(5) no proceeding by was of revision shall be entertained at the instance of a party who could have appealed. Their Lordships pointed out that if the application was made by the accused himself it would not lie and went on to say:
No doubt this Court has jurisdiction to entertain applications in revision, where no right of appeal has been exercised, where the application is made by a third party but entertaining such an application seems to me somewhat in breach of the spirit of Section 439(5): and third parties ought not to apply in revision unless there is a very strong case.
If therefore an application by third parties can lie, as it could, it is difficult to see why the High Court itself cannot act suo motu notwithstanding the application made by the accused himself. A contrary view has however been taken by the Allahabad High Court in City Board v. Shri Kishan Lal (supra). In that case the accused had been acquitted by the Magistrate of an offence under the Prevention of Food Adulteration Act. The Food Inspector who was the complainant moved the Sessions Judge in revision and the Sessions Judge made a report to the High Court recommending that the acquittal be set aside. The learned Single Judge who decided that case took the view that:
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 can be revised at the instance of a party who could have appealed but did not, if the Court were to act suo motu.
The learned Judge, however, concedes that an application made by a stranger to the proceeding may be treated as information. If that is so and if the Court is not obliged to act suo motu it is not clear how the intention of the Legislature would be defeated by the Court acting suo motu in a suitable case. In State of Bombay v. C. Tayawada (supra) the facts were similar as in the Allahabad case and it was held that a revision at the instance of the party entitled to appeal cannot be entertained but the question whether the Court could act suo motu was not raised or considered.
12. Reference may now be made to a decision of the Supreme Court in Chinnaswamy v. State of A.P. : 3SCR412 on which the learned Assistant Government Pleader has relied. There the appellant before the Supreme Court had been convicted by the Assistant Sessions Judge of Kirnool of an offence under Section 411 Indian Penal Code In appeal the learned Sessions Judge held that the appellant had not been proved to be in possession of the stolen ornaments. He gave the benefit of doubt to the appellant and acquitted him. He also acquitted the other accused who had been convicted alongwith the appellant of the substantive offences under Sections 457 and 380 I.P.C. At this the complainant one Ramayya moved the High Court in revision against the appellant and the other accused and the High Court allowed the revision, remanded the matter back to the Sessions Judge for the re-trial of the case. It was against this order of the High Court that the appellant by special leave filed the appeal in the Supreme Court. The main contention urged before the Supreme Court by the appellant was that there were no exceptional circumstances which would justify the High Court for interfering with the order of acquittal at the instance of the private party and that Section 439(4) of the Code specifically forbids the High Court from converting the finding of acquittal into one of conviction and further that the order of re-trial in effect amounted, on the facts of that ease, to converting a finding of acquittal into that of conviction. Dealing with that submission Their Lordships said:
It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.
Then they refer to the limitations placed on the power of the High Court under Section 439(4) namely that the High Court cannot under its revisional jurisdiction convert a finding of acquittal into one of conviction and point out that the effect of the exercise of power by the High Court in that case was substantially to convert an acquittal into conviction. Then they go on to say that having regard to the limitations placed by Sub-section (4) the revisional power should be exercised only in exceptional cases and they indicate what cases could fall under that description. Now, it is true that this judgment makes no reference to Sub-section (5) of Section 439 of Sub-section (3) of Section 417 of the Code but these provisions were on the Statute Book at that time and the limitation placed by Sub-section (5) was attracted in that case. The limitation imposed by Sub-section (4) was in addition attracted. Nevertheless it was held that it was open to the High Court in revision to set aside an order of acquittal at the instance of private parties. No other authority has been brought to my notice and in my opinion the Bombay and Supreme Court rulings are consistent with the view I have taken.
13. It is then necessary to consider whether this is a fit case for exercise of revisional powers suo motu. The Supreme Court has in Chinnaswamy's case (supra) emphasised the need to exercise the revisional powers of the High Court only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice, Their Lordships go on to say:
It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal.
It is in the light of these principles that the submissions of Mr. Sompura have to be examined. There is force in his submission that if the High Court exercises powers of revision in this case notwithstanding the fact that they should not be exercised at the instance of the complainant who has right of appeal, the High Court would be permitting the bypassing of some of the express provisions of law and thus facilitating their circumvention. Sub-section (1) of Section 417 confers on the State Government a right of appeal and Sub-section (3) confers on the complainant a right of appeal against acquittal. The State has not chosen to come in appeal nor the complainant. If the complainant had chosen to go in appeal he would have had to apply to the High Court for leave to appeal before the appeal is filed and it is only on the leave being granted that the appeal could be entertained. If nevertheless the High Court not under Section 439 passes an order in exercise of its revisional powers it will be permitting the complainant to bypass the provisions of Section 417(3) in so far as they require him to obtain special leave to appeal before filing it. The Legislative policy underlying Sections 417(3) and 439(5) is that there being no right of revision a right of appeal should not be allowed to be converted into a right of revision. These considerations call for considerable caution before the High Court exercises powers suo motu. No exceptional circumstances of the nature indicated by the Supreme Court in Chinnaswami 's case have been brought on the record of the case to justify the exercise of the revisional powers. For the dismissal of the complaint and the consequent acquittal complainant himself was to blame; neither he nor his advocate was present when the case was taken up. The learned Assistant Government Pleader argues that even so the dismissal of the complaint by the learned Magistrate was contrary to law because it was contrary to the decisions of this Court in Mafatlal Manila] Shah v. C.C. Shah VI G.L.R. 592 and Dhulabhai v. Ganeshbhai X G.L.R. 582. In Mafatlal's case Raju J. held that a complaint fixed for hearing cannot be dismissed and the accused acquitted for the absence of the complainant when the complaint is called out for hearing and in substance the learned Judge held that the Court must wait for the whole day. In Dhulabhai's case Shelat J. held that a complaint cannot be dismissed under Section 247 for absence of complainant till the accused has appeared and his plea has been recorded. Mr. Sompura submitted that these two decisions were not correctly decided and although that submission is not without substance for these decisions are inconsistent with the decisions of the Division Bench of the Bombay High Court in In Re Jamnabhai Meghji 36 Bom. L R. 105 and Shankar v. Dattatraya 31 Bom. L.R. 795 respectively. I do not propose to go into that submission for even on the footing that the two Gujarat decisions just referred to lay down the law correctly, a mere error of law by the Magistrate is not enough to invite exercise of revisional powers when an appeal is permissible and no exceptional circumstances exist. In Stephens v. Nosibulla A.I.R. 1951 S.C. 284 which is followed in Chinnaswami's case the Supreme Court observed that the revisional jurisdiction is not to be invoked or Used merely because the lower Court has taken a wrong view of the law. Applying the tests laid down by the Supreme Court in Chinnaswami's case I am unable to hold that the facts of this case justify interference by this Court in exercise of its revisional power under Section 439 of the Code.
14. It was then argued on behalf of, the petitioner that in any case the Court could exercise its inherent powers under Section 561A of the Code. The short answer to that argument is that when an express provision is made in the Code in respect of particular matter the inherent powers under Section 561A are not available. When the attention of the learned advocate for the petitioner was invited to the decision of this Court in Vafati Gokul v. State VII G.L.R. 114 the point was not pursued.
In the result the revision application fails and is rejected. Rule, discharged.