K M ANTONY Vs. V K IBRAHIMKUTTY

JUDGEMENT

(1.) This is a petition by the Executive Authority of the Muhamma Panchayat to revise the order passed by the First Class Magistrate at Sherthallai acquitting the accused in C. C. 1464 of 1958. It was a prosecution initiated on a complaint filed by the Executive Authority alleging that the accused who was conducting a fish market without taking a license, is guilty of the offence under S.71 (1) of the Panchayat Act (Act II of 1950) and R.39 of the market rules.

(2.) Before proceeding to consider the question whether the order of acquittal calls for any interference, it has to be examined whether this petition for revision is maintainable. Cl. (5) of S.439 of the Code of Criminal Procedure states that when 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. Admittedly no appeal has been preferred against the order of acquittal in this case. The next aspect for consideration is whether an appeal could have been preferred by the Executive Authority who had preferred the complaint. I think that he could have invoked sub-s.(1) or sub-s.(3) of S.417 of the Code of Criminal Procedure for preferring an appeal. The prosecution was obviously initiated by the Executive authority in his official capacity and as such it has to be deemed to be a prosecution on behalf of the State. In that capacity he could have reported the matter to the State Government with a request that under sub-s.(1) of S.417 the State Government may direct the Public Prosecutor to present an appeal to the High Court against the order of acquittal. The executive authority could as well have invoked the aid of sub-s.(3) of S.417 because the order of acquittal was passed in a case instituted upon a complaint filed by him. The learned counsel for the petitioner argues that the word complaint as used in sub-s.(3) contemplates complaints filed by private parties only. I am unable to accept this argument as sound. The word complaint has been defined in clause (h) of S.4 of the Code of Criminal Procedure. That definition is as follows: complaint means the allegation made orally or in writing to a magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer. When the word complaint has thus been defined in the Code, there is no justification or warrant for supposing that in sub-s.(3) of S.417 of the same Code, that word has been used in a different sense or with only a restricted meaning so as to refer to complaints by private individuals only. A complaint by a public officer will also come within the definition and hence the executive officer could have applied under sub-s.(3) of S.417 of the Code for Special Leave to prefer an appeal against the order of acquittal. This view regarding the scope of sub-s.(3) gains strength from a reading of sub-s.(5) of S.417. The provision in sub-s.(5) is as follows: If in any case the application under sub-s.(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-s.(1) which relates to appeals to be preferred by the Public Prosecutor under directions from the State Government. If sub-s.(1) is made use of in the first instance, it is well and good. But if sub-s.(3) is invoked in the first instance, then the person who is the complainant cannot again go back and seek the aid of sub-s.(1).

(3.) From the foregoing discussions of the scope of the relevant provisions of the Code of Criminal Procedure, it is clear that the executive officer of the Panchayat could have taken the necessary steps to prefer an appeal against the order acquitting the accused in the case. But no attempt was made in that direction and hence sub-s.(5) of S.439 of the Code of Criminal Procedure stands against the petitioner in preferring this revision petition. Accordingly I hold that this revision petition cannot be entertained at the instance of the petitioner. It is therefore dismissed.