MUNICIPAL COMMISSIONER Vs. S ANNAPAKKIYAM

JUDGEMENT

(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 and 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 AIR 1954 S. C. 266, 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 AIR 1962 S. C. 1788. 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.