STATE OF MAHARASHTRA Vs. N G TAYAWADE

JUDGEMENT

(1.) THE opponent Purushottamdas son of Kanhayalal was prosecuted for offences under sections 93 (1) and 98 (1) of the C. P. and Berar Municipalities Act. The trial Court acquitted the accused. Thereafter the Municipal Committee, Warud, through its prosecutor filed an application under S. 435, Criminal Procedure Code, to the Court of Sessions Judge, Amravati. The learned Sessions Judge after having called for the record has recommended that under Sec. 439, Criminal Procedure Code, the acquittal of the accused should he set aside. This reference is opposed by the learned Government Pleader on the ground that under Sec. 439 revision proceedings are incompetent at the instance of a private party in view of sub-sec, (5) of Sec. 439. In case it is held that such a revision under Sec. 439 is incompetent the reference will have to be rejected. The learned Counsel appearing for the opponent Purushottamdas has supported the objection of the learned Government Pleader.

(2.) THIS question was also raised before the learned Sessions Judge and he has dealt with it in paragraph 6 of his order. The learned Sessions Judge has taken the view that Sec. 417, Criminal Procedure Code, regulates the procedure1 of appeal against acquittal and differentiates between the procedure to be followed by the State Government and a private party, that under Sec. 417 a private party challenging an acquittal has to obtain special leave to appeal and that an appeal lies only if such leave is granted. According to the learned Sessions Judge, Sec. 417 thus grants a discretionary right to a private complainant and that under sub-section (3) of section 417 what lies is not an appeal but an application for grant of special leave to appeal. In this view, the learned Sessions Judge has held that it cannot be said that an appeal lies against an order of acquittal in terms of Sec. 439 in the case of a private complainant and therefore this contention which was presumably raised on behalf of the accused was rejected.

(3.) SECTION 439, Criminal Procedure Code, provides :