Kanta Bhatnagar, J.
1. This appeal has been preferred against the judgment passed by the learned Additional Sessions Judge No. 1, Jodhpur 31-1-1976.
2. Briefly stated the facts of the case giving rise to this appeal are that Kamla aged about 10 years along with her mother Mst. Sugani came to the house of the complainant Laxman at Jodhpur on their way to Bhopalgarh where they were going to attend some marriage ceremony On 24-6-197l when Mst. Sugani had gone for marketing, Laxman and Kamla remained at the house. The respondents along with few others are said to have gone to the house of Laxman and forcibly dragged Mst. Kamla and kidnapped her. On the information of Mst. Sugani, the case was registered for the offence of kidnapping but after investigation final report was filed in the court which was accepted by the Magistrate. In the mean-while on 7 7-1971, Laxman filed a complaint under Sections 366, 342, 109 and 379 Indian Penal Code against the respondents. The learned Magistrate took cognizance of the case. conducted the committal proceedings and after completion of the committal proceedings, committed the respodents to the court of sessions to stand their trial for the offences under Sections 366 and 342 Indian Penal Code. The case was transferred to the court of Additional Sessions Judge No.l, Jodhpur. The learned Additional Sessions Judge No. 1, heard the arguments on the question of charge and by his order dated 15th November, 1975, discharged respondents Nos. 6 and 7 Dayaram and Pukhraj respectively. The remaining five respondents were charge sheeted for the offence under Section 366 and 147 Indian Penal Code. The charges were explained to them and their plea was recorded and all of them denied the charges and claimed to be tried. Prosecution examined three witnesses The learned Additional Sessions Judge in view of the statements of the prosecution witnesses observed that there was no evidence worth the name against the accused and so he did not find any necessity to record the statements of the accused under Section 313 Criminal Procedure Code After hearing the arguments of the parties, he passed the judgment of acquittal under appeal. Being aggrieved by that judgment, complainant Laxman has preferred this appeal in this Court after obtaining leave.
3. On 17-3-1979 an application was filed on behalf of the respondent No. 6, Dayaram under Section 378 and 482 Criminal Procedure Code, raising a preliminary objection that this appeal is not maintainable against him because he was discharged by the trial court on 15-11-1975 and that order has not been challenged by way of revision A similar application has been filed by respondent No. 7, Pukhraj on 18 -7-1979 At the commencement of the arguments, the learned Counsel for the respondents took this preliminary objection in the above preferred two applications and contended that the appeal against these two persons not being maintainable should be dismissed. Mr. JS Jodha, the learned Counsel for the appellant submitted that he has challenged the order of discharge dated 15 11-1975 as well as the judgment of acquittal dated 31-1-1976 and the former having merged into the subsequent order the appeal is maintainable against respondents Dayaram and Pukhraj also. It has been stressed by Mr. Jodha that once the appeal is admitted, this Court should look into the matter from every angle and decide the same. According to him if this Court comes to the conclusion that the discharge order was wrong, it should treat this appeal as a revision petition so far as Dayaram and Pukhraj are concerned and direct the trial court to proceed with their trial
4. The appeal has been filed under Section 378 Criminal Procedure Code That section provides for appeal in case of acquittal It cannot be disputed that no appeal lies against an order of discharge and such an order can be challenged only by way of revision We are unable to agree with the learned Counsel for the appellant that the order of discharge has merged in the judgment of acquittal and both of them can be challenged by way of appeal. The prayer in this appeal is for setting aside the judgment and no where it has been mentioned in the mmemo of appeal that there was any illegality in the order of discharge or the same may be set aside. Even if it would have been so, the position of law being clear, the appeal was not entertainable against respondents Nos.6 and 7 who have not faced the trial and were discharged under Section 227 Criminal Procedure Code. In the case of Nagar Mahapalika, Varanasi v. A V. Dubey 1978 Cr. LJ 1467 relied on by Mr. Jodha, it has been observed that appeal under Section 417 Criminal Procedure Code (old) is not competent against an order of discharge Mr. Jodha during the course of arguments fairly conceded that the appeal against order of discharge is not maintainable but at the same time urged that there is law on the point that such appeals may be converted into revision petitions and disposed of according to law. In support of his contention, he again referred to the aurhority just cited above. In that case also a preliminary objection about the maintainability of appeal against the order of discharge was taken and with the observation referred to above, it was held that appeals were not maintainable. In that case the leave for filing the appeal having been granted by the High Court against the order of discharge on some misapprehension, it was thought expedient in the interest of justice to convert the appeals into revisions and to dispose them in accordance with law.
5. In the case of 'on the death of Monmathanath Haider his hems and sons Sachindra Nath Halder and other v. Niranjan Mondal and Ors. : AIR1967Cal442 , the complainant filed an appeal but during the pendency of the appeal he expired It was held that his successor in interest could not maintain the appeal as it had abated at the death of the appellant. The wrong none was an offence against the property in that case, so the successor in interest of the deceased appellant were interested in the proceedings and it was urged by his counsel that the appeal may be treated as a revision application His Lordship observed that a petition of appeal is not equivalent to a revision application but under Section 439 of the Code of Criminal Procedure (Old) if any case comes to the knowledge of the High Court in any way what soever, the High Court can exercise power of revision In view of the circumstance of the case the matter was heard by Court in exercise of its revisional jurisdiction.
6. The position of law on the point being quite clear that no appeal is maintainable against an order at discharge, the appeal against Dayaram and Pukhraj is held to be not maintainable. If there would have been an appeal against the order of discharge only then the paint about its converting into a revision would have been considered but in the persent case the appeal is against the order of acquittal and in it has been verbally proved that so for as the two respondents are concerned, it may be treated as revision petition. By converting this appeal into revision, the appeal against the five respondents acquitted by the trial court will have to be done away with which will not be according to law. It is not possible to hear one appeal partly as revision and partly as an appeal. The application of respondents Dayaram and Pukhraj is therefore, accepted & the appeal against them is held to be not maintainable, nor is that appeal converted into revision petition. At the same time we cannot shut our eyes to the proposition of law that this Court can invoke its revisional jurisdiction whether there be a petition or not to that effect, if any illegality committed by any subordinate court is brought to its notice or comes to its notice by perusal of record or otherwise. In other words, this Court has wide powers to suo moto exercise revisional jurisdiction when any illegality comes to its notice Our conclusion on the point is that if on perusal of the record and hearing the arguments of the parties, any illegality regarding the order of discharge will be evident, we will in exercise of our revisionsl jurisdiction interfere with that order.
7. The learned Counsel for the appellant has assailed the judgement of acquittal on number of grounds. The first ground of attack is that the trial court has legally erred in not examining all the witnesses of the complainant i.e, it has wrongly closed the evidence of the prosecution The reply of the other side is that the Addl. Public Prosecutor has closed the evidence and therefore, court had no other alternative.
8. Laxman (P.W 1), Mst. Sugani (P W 2) and Durga Prasad (P W 3) were examined from the prosecution side to substantiate the case against the respondents. The perusal of the record disclose that on 30.1.1976, the first two witnesses were examined, no other witness was present that day On 31.1.1976 Durga Prasad (P W 3) was examined and prosecution closed its evidence, A previous order-sheet dated 17- 12-1975 shows that Addl. Public Prosecutor has submitted that it appears that Laxman, Sugani Durga Prasad and Narsingh Master only have knowledge about the only incident and only those persons are said to be material witnesses. Out of these four as we have stated above three were examined. The summon of Narsingh Master was served for the hearing of 31. 1. 1976 The order-sheet of that day does not show whether he was present on that day or not but specifically mentioned about the prosecution evidence being closed. It does not appear from that order-sheet that it was the court and not the Public Prosecutor who had closed the evidence or the latter had made any request for examining any more witnesses,
9. The argument of the learned Counsel for the appellant that the complainant should have been asked whether any more witnesses were to be examined or not and in a case registered on the private complaint, the court should not have taken into consideration the submission of the Addl. Public Prosecutor. The argument is not at all appealing in view of the specific provision of Section 225 Cr P. C. which provides that (in every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor in Sessions cases It is the Public Prosecutor who is incharge of a case and private complainant having no say in the proceedings, the court committed no mistake in not asking the complainant whether he wants to examine any more witness.
10. The second ground taken by the learned Counsel for the appellant is that the statements of witnesses were not correctly recorded and Mst. Sugani, mother of the kidnapped girl was not declared hostile by the Public Prosecutor despite her statement in examination in chief going against the prosecution case. This argument of Mr. Jodha is also of no help to him because there is no application on the record to the effect that it was brought to the notice of the trial court that the statements were not recorded as deposed. Mst Sugani is the mother of the girl and as her evidence shows that she had come wish her to the house of Laxman. Sugani was the best person to state whether Kamla was married to Mangilal or not and if the mother stated that her daughter has married to a particular person, in our opinion it could not be expected of the Public Prosecutor to disown that witness and cross-examine her on the point, especially so, when Laxman complainant has been examined prior to the statement of Mst, Sugani and in his cross-examination his attention was drawn to certain documents written and signed by him from which it could be established that Mst. Kamla was married to respondent Mangilal The allegation against that trial Judge about not recording the statements correctly is, therefore, baseless.
11. Challenging the findings of the learned trial court, learned Counsel for the appellant vehemently pressed that when a request was made to the learned Addl Sessions Judge to stay the proceedings as the complainant intended to get the case transferred from his court, it was obligatory for the court to stay the proceedings The argument is devoid of force. Firstly, because an oral submission or even a written request does not oblige the court to stay the proceedings. Secondly, as discussed above in sessions cases, it is the Public Prosecutor who is incharge of the trial and any say of complainant does not deserve any consideration by the court.
12. Advancing argument on the merits of the case, Mr. Jodha strenuously argued that from the statement of Laxman, the complainant, prosecution case about Kamla being forcibly kidnapped by the respondents stands duly substantiated and the appreciation of evidence by the trial court is erroneous. Controverting this argument, the learned Counsel for the respondents submitted that Laxman's statement has been disbelieved by the court on the ground that he has tried to cancel the material fact that Kamla is the married wife of Mangilal the respondent Careful examination of the statement of Laxmam shows that he has stated in the court about force being used in taking away the girl but he was confronted with his previous statement and on his reply, the court has correctly arrived at the conclusion that the factum of use of force was an after thought. A very important reason given by the court for disbelieving the testimony of Laxman is that he has tried to conceal a very Important fact (hat is the marriage of Kamla with Mangilal respondent. He was belied in his cross-examination by the two documents Ex.D 3 and Ex D 4 which are admitted to have been written and signed by him In one of these documents, there is a statement that Kamla is the wife of Mangilal. In another Loonaram, father of Mangilal is said to be the person entitled to the custody of the girl. Mst. Sugani as well as Durga Prasad have specifically deposed in the court that Kamla was married to Mangilal. In view of this statement of Sugani, mother of the girl, the court in our opinion, has rightly disbelieved the statement of Lax man uncle of the girl. Besides that, the trial court has made observations about the credibility of the witness to the effect. that complainant working as Munshi of an Advocate for about 10 years, cannot be believed when he says that he is not well read and only knows how to sign The learned Addl Sessions Judge has appreciated the prosecution evidence in its proper perspective and has correctly understood the position of law about the right of the husband over his wife. The conclusion arrived as by the trial court regarding the case of the prosecution not being established is based on good reasonings and calls for no interference.
13. Now we turn to the order of discharge to find out whether the learned Addl. Sessions Judge has committed any illegality so as to warrant any interference. Mr. Jodha contended that the learned Addl Sessions Judge has illegally discharged the accused, so this Court exercising its revisi-onal jurisdiction should remand the case for the trial of Dayaram and Pukhraj. He on this point referred to the case of Ratilal Bhanji Mithani v. State of Maharasthra and Ors. 1979 Cr LJ 41, where the High Court in exercise of its revisional jurisdiction remanded the case for the trial of the accused. The case is not at all applicable to the facts and circumstances of the present case. In that case the point for decision was regarding the legality of an order of discharge passed by the Magistrate after deleting charges framed against the accused. The principle enunciated in that case was that once charge is framed, Magistrate cannot cancel it or discharge the accused. In the present case Dayaram and Pukhraj have been discharged by the court of sessions under Section 227 of the Code of Criminal Procedure and, therefore, it cannot be said that the discharge order was passed without jurisdiction. To point out another illegality in the discharge order, Mr. Jodha contended that the case of Dayaram and Pukhraj was in no way different from the case of other persons and, therefore, the trial court committed an illegality in distinguishing the case of these two from the case of remaining respondents. The careful examination of the order of discharge dated 15-1-1975 shows that the court has properly considered the material on record and the order based on good reasoning cannot be said to be illegal, improper or incorrect. Apart from this, on hearing the appeal against the acquitted respondents, we have arrived at the conclusion that the trial court was correct to hold that the prosecution case against the respondents was not made out. The case of Dayaram and Pukhraj in no way can be said to be based on stronger footing than the case of the iest and, therefore, when after the trial other respondents are held to be innocent and correctly so, there arises no question of any interference in the order of discharge relating to them.
14. In the result, the appeal being devoid of force, stands dismissed. The bail bonds of the respondents stand discharged.