S.K. Sen, J.
1. In connection with this appeal against acquittal, there is a preliminary objection by the learned Advocate for the respondents that the complainant was a private person, Monmathanath Halder, and that he did not file the appeal under Section 417 (3) of the Criminal Procedure Code, but after his death his sons obtained leave and filed the appeal, and that such an appeal is not maintainable. Section 417 (3) provides that if an order of acquittal is passed in any case instituted upon a complaint, and the High Court on an application made to it by the complainant in this behalf grants special leave to appeal from the orders of acquittal, the complainant may present such an appeal to the High Court. There is no provision for substitution in the Criminal Procudure Code; and the term 'complainant' as used in Sub-section (3) of Section 417 of the Code cannot be interpreted to include the successors-in-interest of the complainant. Section 404 of the Code provides that no appeal shall lie from any judgment or an order of a Criminal Court except as provided by this Code or by any other law for the time being in force. Section 431 of the Code provides for abatement of an appeal, and an appeal under Section 417 abates on the death of the accused. On the death of the complainant such an appeal would not abate. If the complainant had obtained leave of the High Court and filed an appeal against the acquittal, then on his death before the appeal has been heard the appeal would not abate; but it would appear that if the complainant died before he could obtain leave of the Court and file an appeal against the acquittal, the appeal would not be maintainable at the instance of his son. The learned Advocate for the appellant has urged that as the wrong done was an offence against property, the heirs can also maintain an appeal, and that the appeal would not be maintainable only if the complainant had been personally injured. But the terms of Section 417 (3) must be strictly interpreted, and therefore, I must agree with the learned Advocate for the respondent that the appeal is not maintainable.
2. The learned Advocate for the appellants has urged that in the alternative the petition of appeal may be treated as a revisional application. A petition of appeal is not equivalent to a revisional application but under Section 439 of the Code of Criminal Procedure, if any case conies to the knowledge of the High Court in any way whatever, the High Court can exercise powers of revision. Therefore, I have heard the learned Advocates of both sides as a revisional Court, that is, in exercise of thejurisdiction of this Court under Section 439 of the Criminal Procedure Code.
3. The case of the complainant Monmathanath Halder was briefly as follows:
C. S. Plots 189 and '190 of mouza Tatuagari, P. S. Diamond Harbour, was purchased y the complainant in the name of his sons and C. S. plot 257 of the same mouza was purchased by the complainant at an execution sale and thereafter, the complainant was growing paddy on the plots and in 1365 B. S. also the crops were grown by the labourers of the complainant. But on 8th Agrahayan 1365 B. S. corresponding to 24th November 1958, after the paddy had been reaped and stacked on the land by the complainant's men, the accused persons wrongfully removed the paddy to their own houses.
4. The accused all pleaded not guilty and the defence taken was that the accused had no claim to the particular plots in respect of the crops on which the criminal case had been brought by Monmathanath Halder, but they claimed certain other lands as successor-in-interest of one Kantaki, a daughter of a paternal uncle, Natabar, of the complainant Monmathanath Halder, of which the complainant was in wrongful possession; and the accused persons had instituted a civil suit for the recovery of possession of that land; and that subsequently, in a dispute between the complainant and his brother the accused party had supported the complainant's brother; and the complainant, therefore, wanted to teach a lesson to the accused party and had brought a false case against them.
5. The learned Magistrate accepted the prosecution case as sufficiently proved by the evidence of the witnesses for the prosecution examined. So he convicted each of the seven accused under Section 379 of the Indian Penal Code and sentenced them to pay a fine of Rs. 80 each, in default to suffer rigorous imprisonment for two months.
6. There was an appeal which was heard by Shri S. N. Bagchi, the Additional Sessions Judge, Alipore. The learned Additional Sessions Judge in a rather elaborate judgment came to the conclusion that the witnesses for theprosecution could not be relied upon and so he acquitted all the accused.
7. It has been urged on behalf of the complainant's sons that there being as many as five eye-witnesses in addition to the complainant's son Surath Chandra Halder the learned Judge had no reason to hold that the story of removal of the reaped paddy from the disputed land was false. It is true that there were five witnesses in addition to the complainant's son, the complainant himself not being an eye-witness. But it is significant that the complaint was filed in Court one week after the occurrence. The occurrence is supposed to have taken place on 24th November 1958 but the complaint was filed in Court on 1st December, 1958. The total area of the plots was nearly three bighas. If paddy from the land already stacked on the land had been wrongfully removed by the accused party, it is to be expected that the complainant would have filed a case promptly andnot waited for one week. He gave an explanation for delay saying that he had gone to the thana and was referred to Court, but no general diary entry was proved in the case nor was any police officer examined to corroborate the complainant in this respect. Moreover, the complainant admitted that he had a dispute with the accused party over the property which belonged to his uncle's daughter, namely, Kantaki. Some of the witnesses who came to prove removal of paddy as eye-witnesses appeared to be clearly undependable. For instance, P. W. 5 stated in examination in chief that he was working on his land which is close to the disputed land from which paddy had been removed. But in cross-examination he admitted that he sold away half of the land which was close to the disputed land and that the cultivation of the remaining land was looked after by his second brother and not by himself and that he himself was working for other people. In the circumstances it is clearly difficult to accept his evidence in examination-in-chief as an eye-witness. Many of the other eye-witnesses also appeared to be interested. In the circumstance, I do not think that any useful purpose would be served by directing a further hearing of the appeal, although I must add that the learned Judge's reasonings in certain respects are confusing, and he appears to have unduly criticised the manner in which the Sub-divisional Magistrate had recorded the initial examination of the complainant and the manner in which the seven accused had been summoned, overlooking the fact that there had been an enquiry by the police held under Section 202 of the Code of Criminal Procedure before the learned Magistrate was satisfied as to a prima facie case.
8. In the result this appeal fails as notmaintainable; and in exercise of the Court'srevisional jurisdiction too, I see no reason tointerfere with the appellate order of acquittal.