1. The complainant in S. T. C 579 of 1964 (S. R. No. 30185 of 1965) and S.T. C. 623 of 1964 (S. R. 30183 of 1965) on the file-of the Second Class Bench Magistrate seeks to file these criminal revision cases with S. R. 30185 & 30183 of 1965 respectively against the acquittal of the accused in the said cases. The question for consideration in these cases is whether the petitioner can file a criminal revision case against the judgment of acquittal instead of preferring an appeal after obtaining the necessary leave under Section 417, Cri. P. C.
2. The contention of the learned Counsel for the petitioner is that he has concurrent remedies of preferring a criminal appeal under Section 417, Crl. P. C. after obtaining the leave of this Court and a criminal revision case and that he can choose one or the other of the remedies. He referred to the decision of the Supreme Court in Harihar v. State of West Bengal : AIR1954SC266 , in support of his contention that he is entitled to file a criminal revision case. But the said decision was piven prior to the amendment of Section 417 Crl. P. C. under which a complainant in a. criminal case was given a right to appeal subject to his obtaining a special leave to appeal. He also referred to the decision in Chinnaswamy v. State of Andhra Pradesh : 3SCR412 . But the said decision merely refers to the powers of the High Court to interfere in revision with a judgment of acquittal.
3. Section 439 (5), Cri. P. C. provides that where under the 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. Hence if an appeal lies against a judgment of acquittal at the instance of the petitioner, he cannot invoke the revisional jurisdiction of this Court. Under Section 417 (3) Crl. P. C. in any case instituted upon a complaint, the High Court can grant special leave to appeal from the order of acquittal and the complainant thereupon may present such an appeal to the High Court. The learned advocate for the petitioner argued that as he could file an appeal only after obtaining the special leave, it could not be stated that an appeal lay as contemplated in Section 439 (5) Crl. P. C. I am unable to accept this contention. It is stated in Section 417 (5) Crl. P. C. that if in any case the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1). This shows that an appeal shall lie where such leave is granted and it would therefore clearly come under Section 439 (5) Crl. P. C.
4. The learned advocate for the petitioner relied on the observations of this Court in Seeniammal v. State 1960 MWN Cri. 170 : AIR 1960 Mad 573 as to the procedure that should be followed by the parties in preferring revision against an order of acquittal. The scope of Section 439(5) Cr. P. C. has not been considered and dealt with in the said judgment. Further it was a case of a revision petition filed by P. W. 1 Seeniammal and she could only file a criminal revision case, as she appears to have done in that case. It is only in a case instituted upon a complaint that Section 417 (3) could be invoked and the case dealt with in the above decision is not of that kind.
5. In fact several High Courts have taken the view expressed by me. In City Board Mussoorie v. Sri Kishanlal : AIR1959All413 , it has been held that in view of the provisions of Section 439 (5) Crl. P. C., a proceeding by way of revision of 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) Crl. P. C. It has been rightly pointed out in that decision that no words can be added to Sub-section (5) to Section 439, Crl. P. C. and it cannot be read as if it contained the words 'where under this Code an appeal lies as a matter of absolute right'. In Shivprasad v. Bhagwandas AIR 1958 Punj 228, the same view was taken. It has been held in that case that an appeal against an order of acquittal at the instance of a private complainant is provided by Section 417 (3) Crl. P. C. and that if no appeal is preferred, Section 439 (5) Cri. P. C. is a bar to the complainant's having recourse to a revision petition. In State of Bombay v. N.G. Tayawade : AIR1959Bom94 also, the same view was taken. It is pointed out in that decision that the view that Section 417 Crl. 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 that 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, is not acceptable.
6. For the foregoing reasons I am unable to uphold the contention of the learned advocate for the petitioner that he has got a right to prefer a criminal revision case. In my opinion, his remedy is to prefer an criminal appeal after obtaining the necessary leave to appeal of this Court. The scope of the criminal appeal preferred after obtaining the special leave is much wider than the scope of a criminal revision case.
7. For the above reasons, the petitions should be returned to the party to make the necessary amendments and prefer criminal appeals with application for leave to appeal, if so advised.