B.C. Chakrabarti, J.
1. This is an appeal against an order of acquittal passed by the Assistant Sessions Judge, Murshidabad in Sessions Trial No. 2 of Feb., 1975 acquitting the respondents 1 to 6 of charges under Section 120B read with Sections 467 and 420 of the Penal Code.
2. Learned Advocates for the respondents took a preliminary objection as to the maintainability of the appeal at the instance of the appellant. Their contention is that an appeal being a creature of the statute could only be preferred if there are adequate provisions in that behalf in the Code is self : Mr. Charkrabarty appearing on behalf of the State also supported the contention of the respondents. In this connection a reference was made to the provisions of Section 417 Sub-section (3) of the old Code of Criminal Procedure. There is no dispute that the case is governed by the provisions of the old Code. Section 417 empowers the State Government to present an appeal from an original or appellate order of acquittal passed by any Court other than a High Court. Sub-section (3). is an exception which provides that if such an order of acquittal is passed in any case instituted upon complaint and the High, Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The contention of the respondents now before us is that this being not a case instituted upon a complaint, the appeal at the instance of the complainant is not maintainable. Mr. Ray on the other hand contends that the case was to all intents and purposes, a case instituted upon a complaint and therefore he argues that the appeal is competent. Mr. Ray in the alternative contends that in any event the Memorandum of Appeal may be treated as an application for revision in the interest of justice.
3. In regard to. the first point as to whether this was a case instituted upon a complaint there seems to be no difficulty. It is true that initially the appellant filed a petition of complaint before the Magistrate, From the endorsement appearing on the petition of complaint, it appears that a certain order was passed by the Sub-Divisional Magistrate on 26-7-1968. What that order was, does not appear from the order-sheet, but from the formal F.I.R. it appears that the original petition of complaint was forwarded to the police for treating the same as F.I.R. Subsequently the police after enquiry submitted a charge-sheet and the case was eventually committed to the Court of Session for trial. That this is so would be evident from the grounds of appeal itself. In para. 1 it is stated that the appellant filed complaint before the learned Sub-Divisional Magistrate, Lalbag on July 26. 1968. Para 2 contains a brief narration of the allegations of the appellant. In para 3 it is stated that the learned Magistrate was pleased to direct the Officer-in-Charge, Bhagabangola P.S. to treat the petition of complaint as first information report and to direct investigation. In para 4 it is said the charge sheet was later submitted after investigation and after due committal enquiry, the respondents were committed to the Court of Session for trial. Therefore on the own admission of the appellant it is clear that upon a petition Of complaint being filed the Magistrate simply forwarded the same for treating the same as a F.I.R. There is nothing to indicate that the learned Magistrate at once took cognizance into the case and examined the complainant and/or his witnesses and thereafter sent the matter for further enquiry. It may also be noted that the case was marked as a G.R. Case and not as a complaint case. In such a situation it has been argued on behalf of the respondents that the case cannot be treated as a case instituted upon a complaint.
4. In a Bench decision of this Court in the case of Osman Gani v. Baran Deo Singh reported in (1959) 63 Cal WN 181 : 1959 Cri LJ 311 it has been held that where in a case the complainant came to Court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then had a report from the police whereupon he took cognizance, the case was not one instituted on a complaint within the meaning of the expression 'any case instituted upon complaint' in Section 417 of the Code of Criminal Procedure. It was further observed that the expression 'any case instituted upon complaint' must mean that class of cases where not merely the complainant comes to court with a petition of complaint but the Magistrate takes cognizance of the offence on the basis of that complaint. It was then held that in an order of an acquittal resulting in such a case, the order was final and there was no right of appeal to the complainant.
5. On behalf of the respondents a reference was also made to the case of Jamuna Singh v. Phadai Shah reported in : 1964CriLJ468 . That was a case where the contention that the appeal did not lie under Section 417 was overruled but the grounds upon which such contention was negatived supports the plea of the respondents. It is held in this case that when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted on a police report. On a parity of reasoning it follows that when the Magistrate does not take cognizance upon the complaint but merely forwards the petition to the police for purpose of investigation the position becomes different. In that case on a petition of complaint being filed, the Magistrate examined the complainant on oath under Section 200 and after recording the substance of it made the following order:
Examined the complaint on S.A. The offence is cognizable one. S.I. Bai-kunthapur for instituting a case and report by 12-12-1956.
6. It was held that the report subsequently made by the Police Officer though purporting to be a report under Section 173 should be treated in law to be a report only under Section 202. The basis for such observation obviously was the fact that the Magistrate had taken cognizance of the offence and had examined the complainant under Section 200. Such being the position even though the Magistrate in his order had used the expression 'for instituting a case', the order was clearly under Section 202. He could have without taking cognizance, directed investigation of the case by the police under Section 156(3). In such a situation it was held that the order of the Magistrate was made after cognizance was taken into the offence and there was thus no escape from the conclusion that the case was instituted on private person's complaint and not on the police report. Applying the principles enunciated in the case just referred to it appears that the learned Magistrate in this case had not taken action under Section 200 of the Code and the matter was not forwarded to the police under Section 202, Cognizance was taken for the first time after receipt of the police report. Therefore this cannot be treated as a case instituted upon a complaint. Mr. Ray on behalf of the appellant also tried to rely upon the case of Jamuna Singh 1964-2 Cri LJ 468 (SC) (supra) in support of his contention that the appeal was competent. It is true that in that case the respondent's plea that the appeal did not lie was rejected but that was entirely on different considerations namely, that it was found as a fact that the case was instituted upon a private person's complaint but in the present case it is the appellant's own case that the learned Magistrate on receipt of the petition of complaint forwarded the same to the police with a direction to treat the same as F.I.R. and with a further direction to investigate. Therefore this is not a case where the reference to the police was made under Section 202 after taking cognizance into the offence.
7. In the case of Bhimappa v. Lax-man. : 1970CriLJ1132 it has been observed that Section 417 refers to a case in which cognizance is taken upon a complaint of facts constituting an offence. The facts of that case were rather unusual. A certain house was set on fire to cause loss to its owner Bhimappa. On a report the police arrested respondents Nos. 1 and 2 and submitted a charge sheet against them. Bhimappa being dissatisfied with the police report filed a complaint against respondent No. 3 in the Court of the Magistrate. The Magistrate enquired into the two cases together and committed the first two respondents and the third respondent separately to the Court of Session. The two Sessions cases were separately numbered and eventually the respondents were found not guilty, The appellant then applied under Section 417 for special leave to appeal against the acquittal of the three respondents. It was held that there could be no manner of doubt that one of the cases wag on the report of a police officer and the other on the complaint of the complainant and in this view it was further held that Bhimappa was entitled to move the High Court for special leave under Section 417 in his own case, there being no difficulty in this case that so far as respondent No. 3 was concerned the case was a separate and independent one, of which cognizance was taken upon the complaint and not upon the police re-port. It was in that view that the special leave application was found to be maintainable. The question whether leave could be granted as against the other two respondents as well was left open. This decision also indirectly supports the contention of the respondents that the present appeal is not maintainable.
8. Mr. Ray, faced with this difficulty came up with his alternative prayer of treating the appeal as a revision. Relying on the observations in the case reported in (1908) 12 Cal WN 678 he argued that there is no wrong which in the interest of justice, cannot be remedied, Re also referred to a single Bench decision reported in (1905) 2 Cri LJ 105 (All) where an appeal was treated as a revision. He also referred to another case reported in (1906) 3 Cri LJ 123 (Chief Court of Punjab) in support of his contention. This was a case where an application under Section 526 of the Cr. P.C. was treated as a revision and has no bearing on principle to the facts of the present case. There can be no controversy that in a proper case a Memorandum of Appeal may be treated as a revision but the question is whether it would be expedient to do so in the interest of justice and in the facts of the present case. The petition of complaint was filed on 26-7-1968, that is to say more than 14 years ago. The respondents were acquitted by a judgment dated 29-4-1975. If the memorandum is treated as a revision the most, that this Court can do. is to set aside the order of acquittal but cannot convict the accused persons. It may at the best send the matter back for retrial. We do not think it expedient to do so after the lapse of so many years.
9. This apart the scope of a revisional application is evidently narrower than the scope of an appeal. In this connection learned Advocates for the respondents drew our attention to the amended provisions of Section 401 as contained in Sub-section (5) thereof. This sub-section provides that where under this Code an appeal lies but an application for revision has been made and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly : It was argued that the legislature having specifically made provisions for treating an application for revision as an appeal and not having made a converse provision for treating an appeal as a revision, the contention of Mr. Ray must have to be rejected. We are unable to agree with this view. Although it was generally accepted as a principle even before the incorporation of Sub-section (5) that in appropriate cases a Memorandum of Appeal may be treated as a revision, there was some divergence, of opinion as to whether a revision application could be treated as an appeal. To resolve the controversy the legislature in its wisdom thought it fit to engraft Sub-section (5).. This was necessary because the scope of an appeal is wider than the scope of a revisional application and in order to empower the Court to enlarge its jurisdiction, sanction of the legislature was felt necessary. But when the question is not of enlarging the scope of the application but limiting it within a narrower sphere no such sanction was deemed necessary. Therefore the absence of any specific provision to the effect that a Memorandum of Appeal can be converted into a revisional application cannot be construed t0 mean that such power is wanting in the court.
10. But we have already indicated on the assumption that there is such a power that we are not inclined to exercise the power of conversion after the lapse of so many years and in a case of this nature. This apart the grounds taken in the Memorandum of Appeal all relate to assessment of evidence and the conclusion arrived thereupon. High Court in its revisional jurisdiction would not ordinarily disturb a finding of fact, unless it appears that the trial Court shut out any material evidence or overlooked any material evidence or admitted inadmissible evidence or where there has been a manifest error on a point of fact or law and consequently there has been a flagrant miscarriage of justice. The grounds set out in the Memorandum of. Appeal do not make, out such a case. In the absence of exceptional circumstances the High Court cannot direct a retrial after setting aside the acquittal upon a reappraisal of the evidence Khetra v. State of Orissa : 1SCR880 . Yet that is what the appellant now wants. Such being the position, even though we agree that it is possible to convert the appeal into a revision we are unable to hold that this is a proper case in which such a course need be adopted. We find that the appeal is not competent and that there are no materials to Justify conversion of the appeal into a revision. The appeal accordingly fails and is hereby dismissed.
Jitendra Nath Craudhuri, J.
11. I agree